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:

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:

Optional reading:

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:

Optional reading:

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:

Optional reading:

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:

Optional reading/viewing:

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:

Optional reading/viewing:

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:

Optional reading: