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An Information-Gathering Approach to Copyright Policy

For over a century and with increasing frequency, major controversies have erupted between large distributors of copyrighted works (song publishers, movie studios, record labels, book publishers, etc.) and makers of new technologies for experiencing those works (player piano manufacturers, VCR manufacturers, the creators of file-sharing software, Google Books, etc.). Usually, the copyright owners and the technology firms reach a licensing deal — but not without some form of government intervention. Various institutions within the federal government have become involved in these disputes, using a variety of different mechanisms. This article is a theoretical investigation of government intervention in these content–technology copyright disputes. We analyze government institutions based on the relative ability of each one to gather information about the impact of new technology, the positive and negative consequences of using these institutions in combination, the most favorable time for each institution to intervene during the course of a dispute, and the track record of each institution’s success or failure in the copyright context. We argue that some government actions might be able to facilitate, hasten, or otherwise encourage a licensing deal, whereas other government actions might be counterproductive on those dimensions. We then apply our framework to disputes between copyright owners and four technologies as case studies to illustrate the theory: piano rolls, radio, VCRs, and webcasting. Each case study explains in detail the many government institutions that intervened in each dispute, describes the governmental and private actions chronologically, and reflects on the lessons learned from each set of government interventions. Some of the case studies are familiar, but many important details about the nature of various government institutions’ intervention have been underappreciated. The dispute over webcasting royalties is less familiar, motivating a comprehensive discussion of the complicated government role in webcasting. The ultimate goal of the article is to characterize what policy tools should be used to resolve content–technology disputes and when those tools should be deployed. We hope that our framework can be a guide to policymakers within the various governmental institutions currently involved in copyright policy.