Academic journal article Stanford Law & Policy Review

Limiting Progress of Science and Useful Arts: Legislating as a Means of Enhancing Market Leverage

Academic journal article Stanford Law & Policy Review

Limiting Progress of Science and Useful Arts: Legislating as a Means of Enhancing Market Leverage

Article excerpt

INTRODUCTION

Under Article I of the U.S. Constitution, Congress has the power "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (1) By using this power wisely, Congress has indeed promoted both artistic creativity and technological innovation. (2) In recent years, however, Congress increasingly has been asked by copyright owners to use this power to stifle the development of new technology. (3) Over the past two years in particular, the legislative process in the copyright field seems principally focused on leveraging private-sector behavior rather than in achieving actual changes to the law. (4)

No doubt my colleagues who have introduced legislation to modify the Copyright Act (5) have done so out of a sincere desire to address concerns raised by content owners. Nonetheless, it increasingly appears that the private-sector interests pushing these initiatives see the legislative process as a mechanism to encourage manufacturers of consumer electronics to "design out" features to which they object, to discourage them from introducing new products, or to leverage them to pay increased royalties as the price for peace. Moreover, they clearly perceive that if the legislation actually were enacted, content owners would gain far greater leverage, and in some instances veto power, over the development of new technology.

We have seen this story before. As technology has evolved over the past century, it has threatened existing business models of content owners, who have responded with wildly exaggerated expressions of fear. With the advent of the player piano, for example, John Philip Sousa said in 1906, "I foresee a marked deterioration in American music ... and a host of other injuries in its artistic manifestations, by virtue--or rather by vice--of the multiplication of the various music-reproducing machines." (6) When radio emerged two decades later, a record label executive predicted that "[t]he public will not buy songs that it can hear almost at will by a brief manipulation of the radio dials." (7) In that long-ago era, technological changes were significant, but came slowly. In recent years, technology has evolved at exponentially greater speeds, leading to ever-growing and increasingly intense efforts by content owners to preserve their existing business models by turning to Congress for help.

But something has fundamentally changed. For the past two years in particular, the legislation proposed by content owners and introduced by their congressional allies seems principally focused on affecting to their advantage business negotiations between powerful industries. (8) Far more troubling is the attendant trend toward even more extreme measures that would, if enacted into law, severely hobble the pace of technological innovation. (9) To the extent that Congress responds to the entreaties of content owners and effectively pressures device manufacturers through the threat of legislation or actually puts them at risk through the enactment of legislation, we can expect technological innovation to be stymied and traditional consumer fair use rights to be even further circumscribed.

To put this concern in perspective and to provide context for my ongoing efforts to resist statutory limitations on technology and consumer enjoyment of it, I will first review the evolution of the "fair use" doctrine and the current battles that ultimately hinge on the application of the doctrine to new devices. I will then review four bills introduced during the past two years, all of which appear aimed at leveraging ongoing business relationships. I conclude with a discussion of a bill I introduced to restore balance in our copyright laws and give device manufacturers more freedom to move forward with new products without fear of crippling litigation.

I. HISTORICAL BALANCE IN THE COPYRIGHT ACT

In 1556, under an English Star Chamber Decree, sole control over the printing of all books was vested in a single company. …

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