April 20, 2003  ·  Lessig

Matt’s got a wonderful brace of posts (have we determined what the collective noun for web log posts is yet?) Thursday that reports a question and then a story to answer it.

In his first post, Matt usefully draws together a bunch of current perspectives on the compulsory licensing debate. In his last paragraph, he writes “I’m doubtful that compulsory licensing actually solves the right problem, but I’m curious about what problems led to compulsory licensing in the past.”

There’s been lots written about this, though none that has yet penetrated the policy debate. (I discuss this in two chapters of my book. Here’s a pdf
of the final (uncorrected) draft of those two chapters. Acrobat is on the fritz on my machine, but when I’ve fixed it, I’ll replace this with chapters directly from the book.) The Cliff Note version is that new technologies for distributing content have created the need for a compulsory license.

But then in the second post, Matt provides the best example of just why compulsory licenses have been used in the past. He tells the story of the demise of ReplayTV, which, in large part was caused by the extraordinary burden of litigation that company has had to bear. For years that company has been in litigation defending the right to deploy a digital version of the VCR. The consequence (in part) of that burden is that the company was forced into bankruptcy.

Again, many have written about the insanity of a system that forces new innovators to go to a federal district court to defend the right to innovate, and again, many have written that the real meaning of the Sony Betamax case was that we should allow innovation first (so long as there is a “potential for a substantial non-infringing use”) and let Congress deal with balances later on.

But the key insight from the Sony Betamax case that should have resolved the ReplayTV case quarters ago was that Congress has in the past used lots of tools to “rebalance” the rights of creators in light of new technologies. That should be its role in the future too — its role, not the courts. Congress can work out systems of compensation to assure artists get paid, without giving the dinosaurs of last century control over the innovation today. Or again, compensation without control.

  • http://microdoc-news.info Dr Elwyn Jenkins

    On collective nouns — what about:

    A chain of blogs (giving the idea of linking on to the other).

    A chorus of posts (as many posts simply add weight to an idea linking and pointing with a little comment).

  • Lessig

    Very nice, both of them!

  • Code

    I do believe a large portion of e-mail is a “ream”. Something about being not paper mail…

    -Code

  • Dave Ethington

    I have no legal background at all, so maybe this is just hard to understand for that reason. I have two questions about the legal portions of the post:

    • Why didn’t the betamax case resolve the legal issues for ReplayTV before they were bled dry by legal fees? Couldn’t a judge look at the case and say we already have an answer on this one?
    • and…

    • Is there any way to fix the problem of “obliteration through litigation”? It seems enormously unjust that a company (or individual) can be shut down merely because they can’t afford to fight it legally.

    As for the collective nouns, my vote is for chain.

  • Dave Ethington

    Sorry, I didn’t mean to shout. My previous post looked fine in the preview…

  • Karl

    As far as “obliteration through litigation” is concerned, I believe it may be time to revive prosecutions for barratry, especially in the realm of fair use. Until there is a penalty for bringing a nuisance claim against an obvious fair-use, I don’t think the rate of such claims will drop.

    Fair use is not a right as long as the cost is endless litigation.

    -kd

    Collective noun nominations: String, Thread, Nest, Nexus/Node, Hub/Spur…

  • Anonymous

    I think a “google” of posts works…

  • http://www.visual-basic.com.ar activex

    I think both of them