Copyright as Entry Policy: The Case of Digital Distribution
Picker, Randal C., "Copyright as Entry Policy: The Case of Digital Distribution" (April 2002). The Antitrust Bulletin, forthcoming
Section I of the paper considers six ways that online distribution matters: 1. as a new medium, online distribution adds to the existing set of versioning opportunities for producers; 2. distributional bottlenecks are weakened and gatekeeping roles minimized; 3. sellers receive direct, detailed information about consumer preferences; 4. bundling and packaging opportunities are greatly expanded; 5. pay-per-view or pay-per-listen is easier to implement; and 6. it is possible to devolve control over distribution through peer-to-peer distribution.
Section II of the paper considers two cases of distribution entry, devices and online radio. Much of the relevant distribution entry policy is set through copyright law. For new devices that facilitate distribution-the VCR, Napster and the DVR-key features of the reigning copyright test are not sufficiently demanding of entrants. The Sony test for contributory copyright infringement-whether the object in question is capable of substantial noninfringing uses-is far too weak and fails to take into account at all the scope of the infringing uses that will result. It is bad third-party copyright policy. Sony may fare better as a matter of independent entry policy and the flexible fair use doctrine of copyright law creates room for courts to operate in setting that policy in an economically sensible fashion. As to online radio, we have severely constrained potential entry in digital radio through recent copyright enactments. Incumbent over-the-air stations are substantially favored and diversity and entry are limited by statutory fiat. The current statutes as written are troubling enough, but the statutory distortions are being exacerbated through the royalty setting process before the Copyright Arbitration Royalty Panel.
Keywords: antitrust, intellectual property, Internet, cyberspace
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