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Antitrust Regulation of Copyright Markets
Full text linkLate last year, a federal court sided with the Department of Justice and blocked the planned merger of book publishers Simon & Schuster and Penguin Random House. The decision was a rare collision between antitrust law and the deeply consolidated copyright content industries. Over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space have left just a handful of juggernaut content producers in their wake. Moreover, new technology companies that have entered the content-creation and distribution markets have begun to leverage their scale to further their own industry consolidation.
This Article examines the growing competition problems in the copyright industries and argues that, despite a resurgent interest in antitrust enforcement among policymakers, antitrust alone has not provided adequate solutions. Indeed, in the aftermath of the DOJ’s victory against Penguin Random House, the publishing industry is now predicting that Simon & Schuster will simply be stripped and sold for parts, hurting author compensation while doing little to stop industry concentration. Copyright law—including its collection of safe harbors, compulsory licenses, and other industry-regulating regimes—also appears unable to meaningfully address the current reality.
The Article argues that antitrust and copyright law cannot work in silos. To find a way forward, we shine a spotlight on an underexplored legal regime: the antitrust consent decrees that continue to regulate certain licensing markets in the music industry by subjecting the organizations ASCAP and BMI to rate setting by the federal courts. We draw on this unusual system—perhaps the only example of antitrust regulation that has directly incorporated a concern with copyright’s policy agenda—to propose a new regulatory model based not on discrete, one-off interventions (such as blocking a merger), but rather full regulation of the licensing practices in concentrated content markets. As the consent decree model shows, copyright and competition law can work in tandem, ensuring that antitrust regulation of the creative-content space remains sensitive to copyright’s overarching goals of incentivizing creativity and ensuring public access to cultural works
Antitrust Regulation of Copyright Markets
No full textLate last year, a federal court sided with the Department of Justice and blocked the planned merger of book publishers Simon & Schuster and Penguin Random House. The decision was a rare collision between antitrust law and the deeply consolidated copyright content industries. Over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space have left just a handful of juggernaut content producers in their wake. Moreover, new technology companies that have entered the content-creation and distribution markets have begun to leverage their scale to further their own industry consolidation.
This Article examines the growing competition problems in the copyright industries and argues that, despite a resurgent interest in antitrust enforcement among policymakers, antitrust alone has not provided adequate solutions. Indeed, in the aftermath of the DOJ’s victory against Penguin Random House, the publishing industry is now predicting that Simon & Schuster will simply be stripped and sold for parts, hurting author compensation while doing little to stop industry concentration. Copyright law—including its collection of safe harbors, compulsory licenses, and other industry-regulating regimes—also appears unable to meaningfully address the current reality.
The Article argues that antitrust and copyright law cannot work in silos. To find a way forward, we shine a spotlight on an underexplored legal regime: the antitrust consent decrees that continue to regulate certain licensing markets in the music industry by subjecting the organizations ASCAP and BMI to rate setting by the federal courts. We draw on this unusual system—perhaps the only example of antitrust regulation that has directly incorporated a concern with copyright’s policy agenda—to propose a new regulatory model based not on discrete, one-off interventions (such as blocking a merger), but rather full regulation of the licensing practices in concentrated content markets. As the consent decree model shows, copyright and competition law can work in tandem, ensuring that antitrust regulation of the creative-content space remains sensitive to copyright’s overarching goals of incentivizing creativity and ensuring public access to cultural works
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Antitrust Regulation of Copyright Markets
No full textLate last year, a federal court sided with the Department of Justice and blocked the planned merger of book publishers Simon & Schuster and Penguin Random House. The decision was a rare collision between antitrust law and the deeply consolidated copyright content industries. Over the course of the past decade, acquisitions and mergers in the recording, music publishing, and audiovisual space have left just a handful of juggernaut content producers in their wake. Moreover, new technology companies that have entered the content-creation and distribution markets have begun to leverage their scale to further their own industry consolidation.
This Article examines the growing competition problems in the copyright industries and argues that, despite a resurgent interest in antitrust enforcement among policymakers, antitrust alone has not provided adequate solutions. Indeed, in the aftermath of the DOJ’s victory against Penguin Random House, the publishing industry is now predicting that Simon & Schuster will simply be stripped and sold for parts, hurting author compensation while doing little to stop industry concentration. Copyright law—including its collection of safe harbors, compulsory licenses, and other industry-regulating regimes—also appears unable to meaningfully address the current reality.
The Article argues that antitrust and copyright law cannot work in silos. To find a way forward, we shine a spotlight on an underexplored legal regime: the antitrust consent decrees that continue to regulate certain licensing markets in the music industry by subjecting the organizations ASCAP and BMI to rate setting by the federal courts. We draw on this unusual system—perhaps the only example of antitrust regulation that has directly incorporated a concern with copyright’s policy agenda—to propose a new regulatory model based not on discrete, one-off interventions (such as blocking a merger), but rather full regulation of the licensing practices in concentrated content markets. As the consent decree model shows, copyright and competition law can work in tandem, ensuring that antitrust regulation of the creative-content space remains sensitive to copyright’s overarching goals of incentivizing creativity and ensuring public access to cultural works
Regulating Hidden AI Authorship
Full text linkWith the rapid emergence of high-quality generative artificial intelligence (“AI”), some have advocated for mandatory disclosure when the technology is used to generate new text, images, or video. But the precise harms posed by nontransparent uses of generative AI have not been fully explored. While the use of the technology to produce material that masquerades as factual (“deepfakes”) is clearly deceptive, this Article focuses on a more ambiguous area: the consumer’s interest in knowing whether works of art or entertainment were created using generative AI. In the markets for creative content—fine art, books, movies, television, music, and the like—producers have several financial reasons to hide the role of generative AI in a work’s creation. Copyright law is partially responsible. The Copyright Office and courts have concluded that only human-authored works are copyrightable, meaning much AI-generated content falls directly into the public domain. Producers thus have an incentive to conceal the role of generative AI in a work’s creation because disclosure could jeopardize their ability to secure copyright protection and monetize the work. Whether and why this obfuscation harms consumers is a different matter. The law has never required disclosure of the precise ways a work is created; indeed, failing to publicly disclose the use of a ghostwriter or other creative assistance is not actionable. But AI authorship is different for several reasons. There is growing evidence that consumers have strong ethical and aesthetic preferences for human-created works and understand the failure to disclose AI authorship as deceptive. Moreover, hidden AI authorship is normatively problematic from the perspective of various theories of artistic value. Works that masquerade as human-made destabilize art’s ability to encourage self-definition, empathy, and democratic engagement, turning all creative works into exclusively entertainment-focused commodities. This Article also investigates ways to facilitate disclosure of the use of generative AI in creative works. Industry actors could be motivated to self-regulate, adopting a provenance-tracking or certification scheme. And Federal Trade Commission (“FTC”) enforcement could provide some additional checks on the misleading use of AI in a work’s creation. Intellectual property law could also help incentivize disclosure. In particular, doctrines designed to prevent the overclaiming of material in the public domain—such as copyright misuse—could be used to raise the financial stakes of failing to disclose the role of AI in a work’s creation
Deepfakes Deconstructed
No full textWith the rapid advancement of photorealistic generative Al technology, the problem of sexually explicit deepfakes has grown more urgent than ever. Thanks to widely available Al systems, users can now easily create images that appear to depict real people engaging in sexual acts. Not only have Taylor Swift and other celebrities been targeted, but deepfakes are also now alarmingly prevalent in American schools
Copyright’s Law of Dissemination
Full text linkIntellectual property law generally rests on the assumption that markets will bring about an ideal allocation of resources. Nonetheless, United States copyright law remains riddled with regimes that bypass or restructure normal market licensing between copyright owners and distributors such as streaming services, radio stations, and libraries. This Article provides the first comprehensive account of this “law of dissemination,” examining how a range of seemingly unrelated judicial doctrines, statutory safe harbors, and regulatory institutions together affect the relationship between copyright owners and the entities that disseminate creative works to the public.
While these regimes are often treated as unintelligible historical relics, they reflect an important and underexplored aspect of copyright’s policy agenda. This Article argues that copyright has a particular set of policy concerns related to the dissemination of creative works for the public’s consumption, enjoyment, and personal use. In particular, four interrelated goals are reflected to varying degrees in copyright’s many dissemination-regulating institutions: (1) facilitating exchanges in transaction cost-heavy contexts, (2) enabling more efficient and expansive public access to existing creative works, (3) reducing barriers to entry for innovative forms of distribution in concentrated markets, and (4) furthering distributive justice priorities.
Identifying these four goals and examining how they permeate the copyright system is a necessary first step in remedying many of the problems currently faced by copyright’s law of dissemination, particularly its increasingly outmoded, piecemeal, and inconsistent regulatory design. By diagnosing these challenges and their potential roots, this Article provides grounding for assessing how copyright law can be reimagined to fit a world of almost entirely digital dissemination
Going Beyond Counting First Authors in Author Co-citation Analysis
Full text linkThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Variations on the Author
Full text link“Variations on the Author” discusses two of Eduardo Coutinho’s recent films (Um Dia na Vida, from 2010, and Últimas Conversas, posthumously released in 2015) and their contribution to the general question of documentary authorship. The director’s filmography is characterized by a consistent yet self-effacing form of authorial self-inscription: Coutinho often features as an interviewer that rather than express opinions propels discourses; an interviewer that is good at listening. This mode of self-inscription characterizes him as an author who is not expressive but who is nonetheless markedly present on the screen. In Um Dia na Vida, however, Coutinho is completely absent form the image, while Últimas Conversas, on the contrary, includes a confessional prologue that moves the director from the margins to the center of his films. This article examines the ways in which these works stand out in the filmography of a director who offers new insights into the notion of cinematic authorship
Appropriate Similarity Measures for Author Cocitation Analysis
Full text linkWe provide a number of new insights into the methodological discussion about author cocitation analysis. We first argue that the use of the Pearson correlation for measuring the similarity between authors’ cocitation profiles is not very satisfactory. We then discuss what kind of similarity measures may be used as an alternative to the Pearson correlation. We consider three similarity measures in particular. One is the well-known cosine. The other two similarity measures have not been used before in the bibliometric literature. Finally, we show by means of an example that our findings have a high practical relevance.information science;Pearson correlation;cosine;similarity measure;author cocitation analysis
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