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Don’t Write Angry!

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3 Responses

  1. Frank says:

    This is a very comprehensive and thoughtful analysis of the legal issue at hand. But if it were truly balanced, it would highlight

    a) RIAA and MPAA dominance of the relevant policymaking bodies, so ably and expertly documented by Jessica Litman

    c) the real antitrust problem here. Look at Judge Patel’s ruling in Napster, where she was alarmed by the collusive behavior of the industry, ordered further discovery on it….and then the whole misuse/antitrust inquiry got stopped when one of the suspect companies bought Napster! Very respected economists, like Roger Noll at Stanford, have noted a) a long string of FTC and DOJ investigations and actions and b) the frequency with which anticompetitive behavior arises out of the industry. They don’t have an ax to grind.

    You state

    “Copyright ‘monopolies’ are weird sorts of monopolies, though — they’re monopolies in hot competition with other monopolies. I.e., not monopolies.”

    Perhaps that is true in publishing, and perhaps in many other fields of expression. But I don’t see it in recordings. In an oligopolistic industry where four companies own over 90% of the content, I can’t see the “hot competition” you describe.

  2. Bruce Boyden says:

    Thanks, Frank, I was surprised this post didn’t draw any comments right away and was beginning to worry I’d have to propose “Killing Puppies.”

    On the substance of your comment, I would caution against simply mixing together complaints about media companies in one big pot. Maybe there are antitrust issues in certain markets, but what’s the causal relationship between those issues and copyright? If there isn’t one, I don’t think it’s terribly helpful to focus on them. E.g., perhaps there’s a problem with fraud in the art world, but even if that’s true I don’t think it would strengthen the case against the Visual Artists Rights Act.

    And to the extent you and others argue that there is something about copyrights that makes industries based on copyrighted works somehow inherently collusive and anti-competitive, I’m skeptical of that claim — although as I noted, I find the suggestion that engaging in collective inter-industry negotiations may reduce competition intriguing, but if so, it would be a general problem you should be able to find in other industries as well.

    And what’s wrong with 4 companies controlling 90% of the market? It isn’t my area of expertise, but my impression was that 4 companies splitting a market was a good thing, not a bad thing.

  3. Don says:

    This reminded me of a recent question and discussion I read from a creator weighing his options with regards to performance rights and organizations. The fact that ASCAP & BMI behave in a very scattershot way based on their overall control is certainly a problem but there are choices for artists even in performance rights, much less the more varied recording industry.

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