Archives for April 2004

James Grimmelmann offers another nice conference report, this time from the Seton Hall symposium on “Peer to Peer at the Crossroads”. I had expressed concern earlier about the lack of technologists on the program at the symposium, but James reports that the lawyers did just fine on their own, steering well clear of the counterfactual technology assumptions one sometimes sees at lawyer conferences.

Among other interesting bits, James summarizes Tim Wu’s presentation, based on a recent paper arguing that much of what passes for copyright policy is really just communications policy in disguise.

We’re all familiar, by now, with the argument that expansive copyright is bad because it’s destructive to innovation and allows incumbent copyright industries to prevent the birth of new competitors. Content companies tied to old distribution models are, goes this argument, strangling new technologies in their crib. We’re also familiar, by now, with the argument that changes in technology are destroying old, profitable, and socially-useful business, without creating anything stable, profitable, or beneficial in their place. In this strain of argument, technological Boston Stranglers roam free, wrecking the enormous investments that incumbents have made and ruining the incentives for them to put the needed money into building the services and networks of the future.

Tim’s insight, to do it the injustice of a sound-bite summarization, is that these are not really arguments that are rooted in copyright policy. These are communications policy arguments; it just so happens that the relevant which happens to affect communications policy is copyright law. Where in the past we’d have argued about how far to turn the “antitrust exemption for ILECs” knob, or which “spectrum auction” buttons to push, now we’re arguing about where to set the “copyright” slider for optimal communications policy. That means debates about copyright are being phrased in terms of a traditional political axis in communications law: whether to favor vertically-integrated (possibly monopolist) incumbents who will invest heavily because they can capture the profits from their investments, or to favor evolutionary competition with open standards in which the pressure for investment is driven by the need to stay ahead of one’s competitors.

The punch line: right now, our official direction in communications policy is moving towards the latter model. The big 1996 act embraced these principles, and the FCC is talking them up big time. Copyright, to the extent that it is currently pushing towards the former model, is pushing us to a communications model that flourished in decades past but is now out of favor.

This is a very important point, because the failure to see copyright in the broader context of communications policy has been the root cause of many policy errors, such as the FCC’s Broadcast Flag ruling.

I would have liked to attend the Seton Hall symposium myself, but I was at the Harvard Speedbumps conference that day. And I would have produced a Grimmelmann-quality conference report – really I would – but the Harvard conference was officially off-the-record. I’ll have more to say in future posts about the ideas discussed at the speedbumps conference, but without attributing them to any particular people.