Uncommon Carrier

I had the pleasure of attending a fascinating talk by Prof. Michael Carrier (of Rutgers School of Law) this week at Emmanuel College in Cambridge. Prof. Carrier was introduced by Prof. Lionel Bently, with the event being promoted by the Centre for Intellectual Property and Information Law (CIPIL) and he spoke to the theme of ‘Pioneering Peer-to-Peer and Other Disruptive Dual-Use Technologies‘. Carrier’s interests include the links between intellectual property and competition law, or in particular the debates regarding copyright, creativity and innovation. His book, Innovation for the 21st Century (OUP, 2009) deals with this, although I have not yet read it. In this context, he dedicated the greater part of his time to an evaluation of the (US) law regarding technologies such as peer-to-peer (which he characterised as both disruptive and dual-use), essentially arguing for the rehabilitation and rediscovery of the approach in Sony v Universal, the famous case where the ‘legality’ of the then-emerging Betamax video recording technology was confirmed.

The talk was divided into five major sections: the idea of dual use technologies, a review of the case law, a discussion of the relationship between creativity and innovation, an argument regarding three asymmetrical issues, and a case for the benefits of P2P and similar technologies.

I’m going to assume that readers are relatively familiar with the first topic (a description of how P2P works) and with the inglorious history of cases like Napster, Aimster and Grokster. Carrier criticised the direction of these cases, reserving particular criticism for the idea of inducement as seen in the Supreme Court’s opinion in Grokster. For the third section, he touched on these points: alternative reason for the apparent decline in CD sales, alternative remedies (to secondary-infringement litigation) such as direct infringement cases, legislative lobbying and technological protection measures, differing concepts of creativity outside major record labels, and – crucially – the role of new technologies as disruptive innovation creating or contributing to new markets.

The next section dealt with what were argued to be three asymmetries, innovation, error cost and litigation. Taking them in order, the discussion of innovation suggested that the less-tangible non-infringing uses (and associated business models) lose out to the heavily emphasised perils of the infringing use; the error costs, borrowing from competition law, in this context highlight the cost of a potentially erroneous decision to stifle the new services; in terms of litigation, this is a particular problem when new entrants lack the deep pockets of incumbents for protracted litigation.

In conclusion, Carrier pointed to the possible benefits of P2P, mentioning again the possible move away from established industry ‘tastemakers’ and the efficiency of BitTorrent as a distribution method, but also referred to ideas like P2P search as an alternative to Google’s strong position. A very lively Q&A included the idea of dual-use technologies as a platform for free expression, problems with policy-making and regulatory capture, how to define innovation and creativity, quantifying the error cost of the ‘wrong’ decision, the differences between music and movie industries, and the ability of market leaders to be both incumbent and insurgent. It was an interesting argument, possibly easier to apply in the case of the music industry than others, but with useful illustrations of the relationship between IP and antitrust/competition law and the ultimate purpose(s) of copyright legislation. However, it is also quite the reminder how far the current parliamentary debate in the UK on the copyright provisions of the Digital Economy Bill is from the various provocative ideas that have been circulating in the academic side of copyright for quite some time now.

Leave a Reply