This is Professor Ghosh’s reply to Mark A. Lemley’s article, Software Patents and the Return of Functional Claiming, 2013 Wis. L. Rev. 905.
The subject of Professor Lemley’s article, software patents, is timely and of social relevance. Software is everywhere, serving as tools to control and direct the flow of information and as modern-day gears and pulleys to operate everyday consumer products. As a critical input to many aspects of our contemporary life, the ability of a company to exclude others from software raises questions about the competitiveness and innovativeness of many industries. Since the 1960s, software patents have been a source of suspicion among those who want to keep software out of the clutches of big business.
Professor Shubha Ghosh is the Vilas Research Fellow & Professor of Law at the University of Wisconsin Law School.
Michael A. Carrier
This is Professor Carrier’s reply to the series of responses for his article, “Copyright and Innovation: The Untold Story”, published in WLR Online Issues 4-6.
I begin by noting how Marks’s response overemphasizes old business models and insufficiently appreciates the synergy between technological and creative innovation, while offering an ironically upbeat assessment of new technologies the record labels tried to quash and a newfound unsupported interpretation of the Constitution. I then explain how Picker’s emphasis on an ideal solution that would maximize copyright-related distribution innovation runs aground on the realities of copyright enforcement today. Finally, I highlight Masnick’s recounting of the themes I described in my article in settings ranging from ringtones to videogames to cable television alternatives.
Michael A. Carrier is a Distinguished Professor at Rutgers School of Law.
Randal C. Picker
This is the third and final piece in a series of responses to Professor Michael Carrier’s article, “Copyright and Innovation: The Untold Story.”
The history of copyright and technology is one of conflict as each new means of distribution has emerged. We have seen this repeatedly with piano rolls, the phonograph, radio, TV, cable TV, and, perhaps most recently, the Internet. As has been noted before by me and others, copyright law establishes the framework in which new tools of distribution can be introduced. Copyright can kill technology, as perhaps occurred with digital audiotape and the Audio Home Recording Act of 1992. And copyright itself can be changed to make possible entry as occurred when statutory licenses were introduced to deal with Aeolian’s possible piano roll monopoly and to make possible the rise of cable television.
Michael Carrier considers this pattern again in his piece, “Copyright and Innovation: The Untold Story,” where he focuses on the rise and fall of Napster. Through a series of interviews with industry participants, Carrier argues that the technology industry—meaning here the entrepreneurs and their venture capital financers—reduced its efforts at producing new music innovations in response to litigation over Napster.
Professor Randal C. Picker is James Parker Hall Distinguished Service Professor of Law at The University of Chicago Law School and Senior Fellow at The Computation Institute of the University of Chicago and Argonne National Laboratory.
This is the second piece in a series of responses to Professor Michael Carrier’s article, “Copyright and Innovation: The Untold Story.”
Innovation is a difficult thing to measure or spot at the moment it is occurring. There are so many moving variables, and any innovation, inevitably, unseats an incumbent of some sort, and often that incumbent fights back against innovation, sometimes making compelling arguments that the innovation will cause more harm than good. But holding back innovation is rarely an effective long-term strategy. At the moment innovation occurs, it is often derided, and rarely is it seen for the benefits that eventually emerge. Measuring it directly is equally troublesome.
Mike Masnick is Founder and CEO of Floor64 and Founder and Editor in Chief of Techdirt.
Steven M. Marks
This is the first in a series of responses to Professor Michael Carrier’s article, “Copyright and Innovation: The Untold Story.”
In his article “Copyright and Innovation: The Untold Story,” Professor Michael Carrier reflects a common misunderstanding of the role of copyright in society, the relationship between technology and copyright, and the role of record companies as innovators. He also ignores evidence of how new consumer offerings during the last decade have flourished compared to the static options available to music consumers during the half century before that time.
Attorney Steven M. Marks serves as Chief, Digital Business & General Counsel for the Recording Industry Association of America.