COPYRIGHT, COMPETITION & TECHNOLOGY
Berkeley Law | Class 278.001 | Spring Semester 2023
This seminar will present a selective overview of current topics at the intersection of copyright and antitrust law. From music, to AI-powered content generation tools, to the “metaverse,” 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 THERE WILL BE NO CLASS MEETINGS UNTIL JANUARY 31
WEEK 1 (January 31): 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:
- Christopher Sprigman, “What Does Antitrust’s Revival Mean for Copyright?” NYU School of Law Working Paper No. 21-09
- Cory Doctorow, “Newspapers vs Big Tech: Antitrust Tackles the Problems That Copyright Just Can’t Fix,” EFF (Dec. 9, 2021)
- Corynne McSherry, “In the Internet Age, Copyright Law Does Far More Than Antitrust to Shape Competition,” EFF (Jan. 19, 2022)
WEEK 2 (February 7): 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:
- Broadcast Music, Inc. v. CBS, Inc., 441 U.S. 1 (1979)
- Radio Music License Committee, Inc. v. SESAC, Inc., 29 F. Supp. 3d 487 (E.D. Pa. 2014)
- Second Amended Complaint, Radio Music License Committee, Inc. v. Global Music Rights, LLC, Case No. 2:19-cv-03957 (C.D. Cal., June 20, 2019)
Optional reading:
- John Bowe, “The Music-Copyright Enforcers,” New York Times (Aug. 6, 2010)
- Letter from Global Music Rights, LLC to Department of Justice Antitrust Division (July 22, 2020)
PLEASE NOTE THAT THERE WILL BE NO CLASS MEETING ON FEBRUARY 14
Week 3 (February 21): 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 hypothetical negotiations in the world as it actually exists, 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:
- Johnson v. Copyright Royalty Board, 969 F.3d 363 (D.C. Cir. 2020): please read three passages of the slip opinion (linked in the case caption above)–specifically (a) pages 3-18; (b) pages 32-39; and (c) pages 43-50
- Determination of Rates and Terms for Digital Performance of Sound Recordings and Making of Ephemeral Copies to Facilitate Those Performances (Web V), Copyright Royalty Board, 86 Fed. Reg. 59,452 (Oct. 27, 2021): please read just the first six Federal Register pages–those numbered 59,452-‘457
- Public Comments of Digital Media Association, Public Workshop on Competition in Licensing Music Public Performance Rights, United States Department of Justice Antitrust Division (July 22, 2020)
Optional reading:
- Statement of Bureau of Competition Director Richard A. Feinstein In the Matter of Vivendi, S.A. and EMI Recorded Music (Sept. 21, 2012)
- Services’ Supplemental Submission Regarding the Impact of the Phonorecords III Initial Remand Ruling on Phonorecords IV (CRB, Aug. 23, 2022)
- North American Concert Promoters Association Motion for Judgment as a Matter of Law, Broadcast Music, Inc. v. North American Concert Promoters Association, No. 18-CV-8749 (S.D.N.Y., Dec. 20, 2022)
Week 4 (February 28): 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:
- Mark Lemley, The Contradictions of Platform Regulation, 1 Journal of Free Speech Law 303 (2021)
- Daphne Keller, “For Platform Regulation Congress should use a European cheat sheet,” The Hill (Jan. 15 2021)
- Rebecca Tapscott, “Senator Tillis Releases Draft Bill to Modernize the Digital Millennium Copyright Act,” IPWatchdog (Dec. 22, 2020)
Optional reading:
- Daphne Keller, “Problems with Filters in the European Commission’s Platforms Proposal,” Stanford Law School Center for Internet and Society Blog (Oct. 5, 2017)
- United States Copyright Office, Section 512 of Title 17: A Report of the Register of Copyrights (May 2020)
- Pamela Samuelson, “The US Copyright Office Section 512 Study: Why the Entertainment Industry Is Claiming Victory,” Kluwer Copyright Blog (May 25, 2020)
PLEASE NOTE THAT THERE WILL BE NO CLASS MEETING ON MARCH 7
Week 5 (March 14): Warhol v. Goldsmith and the role of competition in the fair use analysis in the context of visual arts
Topics to discuss:
- Does the “transformative purpose” inquiry under the first fair use factor consider, turn on, or ignore the question whether prospective buyers would treat the follow-on work as a potential substitute for the original? Is that question more properly addressed under the fourth fair use factor?
- Does a transformative purpose under the first fair use factor inexorably mean that there is no market harm under the fourth fair use factor?
- How does the concept of market harm under the fourth fair use factor differ from the concept of market harm in antitrust doctrine?
Required reading:
- Warhol Foundation v. Goldsmith, 11 F.4th 26 (2d Cir. 2021)
- The three merits briefs before the Supreme Court: the opening brief; the response; and the reply
Optional reading/viewing:
- Paul Szynol, “The Andy Warhol Case That Could Wreck American Art,” The Atlantic (Oct. 1, 2022)
- Supreme Court Oral Argument
Week 6 (March 21): Artificial Intelligence-Powered Content Generation
Topics to discuss:
- Can the output of an AI be protected by copyright?
- Is it copyright infringement to train an AI with unlicensed content?
- 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?
- What conditions would have to be satisfied for the use of particular content in a training corpus, and the subsequent deployment of an AI content generation tool, to be a bona fide antitrust problem?
Required reading:
- Ted Chiang, “ChatGPT Is A Blurry JPEG Of The Web,” The New Yorker (Feb. 9, 2023)
- Complaint, Getty Images (US), Inc. v. Stability AI, Inc., D. Del. Case No. 1:23-cv-00135-UNA (filed Feb. 2, 2023)
- US Copyright Office, Letter Order Re: Second Request for Reconsideration for Refusal to Register A Recent Entrance to Paradise (Feb. 14, 2022)
Optional reading/viewing:
- Cade Metz, “The New Chatbots Could Change the World. Can you Trust Them?” New York Times (Dec. 10, 2022)
- Jay Caspian Kang, “Could An A.I. Chatbot Rewrite My Novel?” The New Yorker (Dec. 9 2022)
- James Vincent, “The scary truth about AI copyright is nobody knows what will happen next,” The Verge (Nov. 15, 2022)
- The genesis of Skynet.
PLEASE NOTE THAT THERE WILL BE NO CLASS MEETINGS ON MARCH 28, WHICH IS SPRING BREAK, OR APRIL 4, WHICH IS THE WEEK AFTER SPRING BREAK
Week 7 (April 11): 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:
- Lexmark International, Inc. v. Static Control Components, 387 F.3d 522 (6th Cir. 2004) — please read only the majority opinion
- Randal C. Picker, Copyright and the DMCA: Market Locks and Technological Contracts, John M. Olin Law & Economics Working Paper No. 238 (2d Series) (2005)
- Lauren Goode, “Right-to-Repair Advocates Question John Deere’s New Promises,” Wired (Jan. 10, 2023)
Optional reading:
- Andy Gass, Considering Copyright Rulemaking: The Constitutional Question, 27 Berk. Tech. L.J. 1047 (2012), pp. 1067-1081 (on the legislative history of section 1201)
- Statement of Jessica Litman, The Digital Millennium Copyright Act at 22: What Is It, Why It Was Enacted, And Where Are We Now?, Hearing Before the United States Senate Committee on the Judiciary Subcommittee on Intellectual Property, 116th Congress (Feb. 11, 2020)