Berkeley Law | Class 278.001 | Spring Semester 2024

This seminar will present a selective overview of current topics at the intersection of copyright and antitrust law. From AI to streaming services and beyond, digital initiatives across industries increasingly implicate both of these complex legal regimes, rather than just one. Policy solutions to challenges presented by new technologies frequently reflect limitations imposed by antitrust and copyright working in tandem–or, occasionally, at cross-purposes. To consider legislative, regulatory, or judicial responses by reference to one body of law without the other is to ignore an entire category of essential constraints and opportunities.

In lieu of a final exam, students will draft an 8-10 page paper on a topic related to the subject of the course. Grades for the semester will be predicated 85-90% on the quality and thoughtfulness of that paper, with the remainder assessed by reference to the quality and thoughtfulness of each student’s participation in the course throughout the semester.

Office hours will be held virtually, at times to be announced periodically.

Here are the topics to be discussed in this course, week-by-week, along with required and optional readings for each class session:

PLEASE NOTE THAT THE FIRST CLASS MEETING WILL BE TUESDAY, JANUARY 16

WEEK 1 (January 16): Introduction & Overview

Topics to discuss:

  • Why think about the same technological, business, legal, and policy problems simultaneously from the perspective of copyright law and antitrust law?
  • When and where, if at all, do we see tension between the values and answers that copyright and antitrust, respectively, would bring to bear on a given problem?
  • High-level overview of the two legal regimes

Optional preparation:

WEEK 2 (January 23): Collective music licensing

Topics to discuss:

  • Understanding the precedent addressing Sherman Act claims against “performing rights organizations”
  • Market definition in music rights antitrust cases
  • Current issues in music rights rate-setting proceedings

Required reading:

Optional reading:

Week 3 (January 30): The case for (and against) breaking up Live Nation and Ticketmaster

Topics to discuss:

  • What antitrust wrong would breakup be a remedy for?
  • What would happen to prices in the event of a breakup?
  • The effect of the prior consent decrees and associated proceedings on the case for a breakup

Required reading:

Optional reading:

PLEASE NOTE THAT THERE WILL BE NO CLASS MEETING ON FEBRUARY 6

Week 4 (February 13): The (non-copyright) law and policy of generative AI

Topics to discuss:

  • Errors of omission and commission in the regulation of novel technologies
  • Bias and ethics issues in generative AI
  • Is generative AI a new kind of disruptive technology, a familiar kind, or not a disruptive technology at all?

Required reading:

Optional reading:

Week 5 (February 20): Generative AI copyright litigation

Topics to discuss:

  • Is the current suite of leading generative AI models illegal?
  • Is it copyright infringement when an AI generates content that is substantially similar to material that was in its “training corpus”? If so by whom?
  • Is there liability for implementing an open-source AI model?

Required reading:

Optional reading/viewing:

PLEASE NOTE THAT THERE WILL BE NO CLASS ON FEBRUARY 27

Week 6 (March 5): Content moderation requirements and platform competition

Topics to discuss:

  • What problems are content moderation requirements for large-scale internet platforms ostensibly intended to solve?
  • Do content moderation requirements themselves create barriers to entry or otherwise impede competition?
  • Should we think about content moderation requirements for copyright enforcement differently than content moderation requirements for false/defamatory/otherwise objectionable content?

Required reading:

Optional reading:

Week 7 (TO BE RESCHEDULED): DMCA anticircumvention

Topics to discuss:

  • How can you tell if a “tying” arrangement is pro-competitive or anticompetitive?
  • For tying arrangements that are likely to be pro-competitive, is there something wrong with using section 1201 to enforce them? Is the concern instead that section 1201 is used to enforce “tying” arrangements that are unlikely to be pro-competitive?
  • Section 1201 and the “right to repair”

Required reading:

Optional reading: