COPYRIGHT, COMPETITION & TECHNOLOGY

Berkeley Law | Class 278.001 | Spring Semester 2022

This seminar will present a selective overview of current topics at the intersection of copyright and antitrust law. From music, to the “metaverse,” to social media networks, to mobile device operating systems, 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. In non-pandemic years, I’ve used a grading policy for this course in which the quality of the assigned paper accounts for 85% of a class member’s grade for the semester, with the remaining 15% attributable to the thoughtfulness and constructiveness of his or her participation during seminar meetings. The ongoing pandemic, however, changes things. It is reasonably likely, at the time of this writing, that we will hold in-person class meetings at least at some point this semester–and it is absolutely imperative that students not feel any pressure at all to attend those meetings if they are even a little bit sick. For that reason, this semester, in-class participation will presumptively not affect anyone’s grade, with exceptions made (in either direction) only the case of exceptional circumstances.

Office hours will be held virtually, at times to be announced throughout the semester.

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

WEEK 1 (January 11): 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:

PLEASE NOTE THAT THERE WILL BE NO CLASS MEETING ON JANUARY 18

WEEK 2 (January 25): Music licensing: antitrust

Topics to discuss:

  • Understanding the precedent addressing Sherman Act claims against “performing rights organizations”
  • Market definition in music rights cases
  • Antitrust attacks on licensee-side collective negotiating organizations

Required reading:

Optional reading:

Week 3 (February 1): Music licensing: rate-setting

Topics to discuss:

  • What problem is compulsory licensing, and the attendant need for rate-setting, a solution for? Is it a good solution?
  • Should government-established rates reflect the projected outcome of real-world hypothetical negotiations, the projected outcome of hypothetical negotiations in an effectively competitive market, or something else altogether?
  • Allegations of buyer- and seller-side market power in music licensing transactions

Required reading:

Optional reading:

Week 4 (February 8): Copyright misuse

Topics to discuss:

  • The relationship between copyright misuse and the question of what parts of a work are copyrightable in the first place
  • Do the same principles of competition economics apply in the context of copyright misuse and antitrust? Should they?
  • Is it copyright misuse for a software copyright holder to restrict redistribution or resale of server hardware? A connected refrigerator? A Tesla?

Required reading:

Optional reading:

Week 5 (February 15): 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:

PLEASE NOTE THAT THERE WILL BE NO CLASS MEETING ON FEBRUARY 22

Week 6 (March 1): 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:

Week 7 (March 8): NFTs

Topics to discuss:

  • What you own when you own an NFT
  • What can the blockchain do with respect to ownership of an interest in royalties or downstream profit-sharing that normal contracts can’t?
  • NFTs and music royalties

Required reading:

Optional reading: