The American Assembly: Art, Technology, and Intellectual Property

Examines intellectual property issues as the arts sector joins other sectors in the race to deal with an increasingly information-driven economy

The Five Indicia of Virtual Property

[Excerpt] “Many Americans use “it” every day. Although it is intangible, it may be worth thousands of dollars. Because we can both control it and prevent other people from controlling it, we assume, without much thought, that we own it. Sometimes we pay someone a monthly fee to hold it for us. Sometimes, simply by using it, we increase its value. When we finish using it, we often sell it. “It” is virtual property, and it may take the form of an email address, a website, a bidding agent, a video game character, or any number of other intangible, digital commodities. If it were to be damaged or stolen, the immediate questions would be: (1) how should a court identify it; and (2) what degree of legal protection should it receive? Because no court or legislature in the United States yet has recognized virtual property interests, a combination of contract and custom currently controls the relationship between Internet users and service providers. […] The question therefore becomes, how should courts identify protectable virtual property interests? Partially due to the dramatic success of Massively Multiplayer Online Games (MMOGs)9 and the rise of secondary markets for virtual characters and treasures from those games, a recent frenzy of legal scholarship has struggled to resolve this question. This note supports the legal recognition of virtual property interests, as already convincingly justified by the legal analogy to traditional property interests set forth by Professor Joshua Fairfield, buttressed by the practical reality that virtual property has significant economic value. Building on these rationales, this note proposes five indicia, common to most forms of virtual property, which a court should use to identify legally protectable virtual property interests on the Internet. These indicia are: (1) rivalry; (2) persistence; (3) interconnectivity; (4) secondary markets; and (5) value-added-by-users. This note cautions, however, against applying this newfound definition indiscriminately against the interests of the very entities without whom the property would not exist: the businesses hosting the remotely accessed computer resources (i.e., the service providers). […] Part III of this note applies the five indicia to the well-established framework of traditional property to illustrate this balancing process. Throughout the development of the law in this area, courts must retain the freedom and flexibility to craft appropriate equitable remedies on a case-by-case basis, and special attention should be directed to the practical issues commonly faced by Internet service providers. The ultimate purpose of virtual property jurisprudence should be to strike a balance that provides legal redress to users whose legitimate virtual property interests have been violated while simultaneously reducing liability and disincentives to service providers who promote and sustain the growth of the Internet.

Music 2025 : The Music Data Dilemma: issues facing the music industry in improving data management

© Crown Copyright 2019Music 2025ʼ investigates the infrastructure issues around the management of digital data in an increasingly stream driven industry. The findings are the culmination of over 50 interviews with high profile music industry representatives across the sector and reflects key issues as well as areas of consensus and contrasting views. The findings reveal whilst there are great examples of data initiatives across the value chain, there are opportunities to improve efficiency and interoperability

A Careful Examination of the Live Nation-Ticketmaster Merger

As great admirers of The Boss and as fans of live entertainment, we share in the popular dismay over rising ticket prices for live performances. But we have been asked as antitrust scholars to examine the proposed merger of Live Nation and Ticketmaster, and we do so with the objectivity and honesty called for by The Boss’s quotes above. The proposed merger has been the target of aggressive attacks from several industry commentators and popular figures, but the legal and policy question is whether the transaction is at odds with the nation’s antitrust laws. One primary source of concern to critics is that Ticketmaster and Live Nation are two leading providers of ticket distribution services, and these critics argue that the merged entity would have a combined market share that is presumptively anticompetitive. We observe, however, that this transaction is taking place within a rapidly changing industry. The spread of Internet technologies has transformed the entertainment industry, and along with it the ticket distribution business such that a reliance on market shares based on historical sales is misleading. A growing number of venues, aided by a competitive bidding process that creates moments of focused competition, can now acquire the requisite capabilities to distribute tickets to their own events and can thus easily forgo reliance upon providers of outsourced distribution services. If self-distribution is an available and attractive option for venues, as it appears to be, then it is unlikely that even a monopolist provider of fully outsourced ticketing services could exercise market power. Ultimately, a proper assessment of the horizontal effects of this merger would have to weigh heavily the emerging role of Internet technologies in this dynamic business and the industry-wide trend towards self-distribution. The second category of arguments by critics opposing the merger rests on claims that vertical aspects of the transaction would produce anticompetitive effects. Indeed, Ticketmaster’s and Live Nation’s core businesses are in successive markets, and thus the proposed transaction is primarily a vertical merger, but there is broad agreement among economists and antitrust authorities that vertical mergers rarely introduce competitive concerns and are usually driven by efficiency motivations. This wealth of academic scholarship, which is reflected in current antitrust law, has not - from our vantage point - been properly incorporated into the public dialogue concerning the proposed merger. To the contrary, critics articulate concerns, including the fears that the merger would lead to the leveraging of market power and the foreclosure of downstream competition, that are refuted by accepted scholarship. Moreover, there are a number of specific efficiencies that, consistent with economic and organizational theory, are likely to emerge from a Live Nation-Ticketmaster merger and would be unlikely but for the companies’ integration. For these reasons, we submit this analysis in an effort to inform the debate with current economic and legal scholarship

The relationship between copyright and contract law

Contracts lie at the heart of the regulatory system governing the creation and dissemination of cultural products in two respects: (1) The exclusive rights provided by copyright law only turn into financial reward, and thus incentives to creators, through a contract with a third party to exploit protected material. (2) From a user perspective purchases of protected material may take the form of a licensing contract, governing behaviour after the initial transaction. Thus, a review of the relationship between copyright and contract law has to address both supply- and demand-side issues. On the supply side, policy concerns include whether copyright law delivers the often stated aim of securing the financial independence of creators. Particularly acute are the complaints by both creators and producers that they fail to benefit from the exponential increase in the availability of copyright materials on the Internet. On the demand side, the issue of copyright exceptions and their policy justification has become central to a number of reviews and consultations dealing with digital content. Are exceptions based on user needs or market failure? Do exceptions require financial compensation? Can exceptions be contracted out by licence agreements? This report (i) reviews economic theory of contracts, value chains and transaction costs, (ii) identifies a comprehensive range of regulatory options relating to creator and user contracts, using an international comparative approach, (iii) surveys the empirical evidence on the effects of regulatory intervention, and (iv) where no evidence is available, extrapolates predicted effects from theory

The Application of EC Competition Policy to the Media Industry

This article examines whether EC competition policy and merger control provisions can prevent excessive market power and safeguard open access and consumer choice in the European media and communications industry. The study looks at the structure of the media industry and points to the amalgamation of corporate power. It assesses whether EC competition law and merger provisions can effectively address the dangers of ownership concentration and safeguard diversity of sources. A number of merger cases either blocked or allowed by the EC are reviewed in order to establish the level of competition. The article suggests that a more rigorous competition policy is required to guarantee competition and prevent domination in merger activity

The Case for CAPSL: Architectural Solutions to Licensing and Distribution in Emerging Music Markets

Compulsory licensing in music has paved the way for a limited class of new noninteractive services. However, innovation and competition are stifled in the field of interactive or otherwise novel services due to high transaction costs inherent in direct licensing. While the creation of a new compulsory license available to a wider array of services may facilitate growth and diversity in new markets, it is unlikely that the legislative process can deliver a new compulsory regime in time to serve relevant interests. Furthermore, the risk exists that legislation written in response to contemporary technology will likely fail to recognize the diversity within the music industry, and therefore will underserve both artists and potential licensees. As such, this brief argues for the creation and adoption of a new standardized protocol for artists and labels to announce the availability of new content with attached standardized licensing terms for automated integration into the catalogs of new or existing digital music services. Such a protocol would allow for automated systems of pricing, distribution, and tracking to reduce transaction costs, increase market transparency, and commodify user participation