Last fall, law professor Michael Carrier came out with a really wonderful paper, called Copyright and Innovation: The Untold Story
. He interviewed dozens of people involved in the internet world and the music world, to look at what the impact was of the legal case against Napster, leading to the shutdown of the original service (the name and a few related assets were later sold off to another company). The stories (again, coming from a variety of different perspectives) helps fill in a key part of the story that many of us have heard, but which has never really been written about: what an astounding chill
that episode cast over the innovation space when it came to music. Entrepreneurs and investors realized that they, too, were likely to get sued, and focused their efforts elsewhere. The record labels, on the other hand, got the wrong idea, and became totally convinced that a legal strategy was the way to stem the tide of innovation.
The Wisconsin Law Review, which published Carrier's paper, asked a few people to write responses to Carrier's paper, and they recently published the different responses
, including one from a lawyer at the RIAA, one from another law professor... and one from me. This post will be about my paper -- and I'll talk about the other papers in a later post. My piece is entitled When You Let Incumbents Veto Innovation, You Get Less Innovation
. It builds on Carrier's piece, to note that the stories he heard fit quite well with a number of other stories that we've seen over the past fifteen years, and the way in which the industry has repeatedly fought innovation via lawsuits.
You can read the whole paper at the link above (or, if you prefer there's a pdf version
). I talk about the nature of innovation -- and how it involves an awful lot of trial and error to get it right. The more trials, the faster what works becomes clear, and the faster improvement you get. But the industry's early success against Napster made that nearly impossible, and massively slowed down innovation in the sector. Yes, a few players kept trying, but it developed much
more slowly than other internet-related industries. And you can see why directly in the Carrier paper, where entrepreneurs point out that it's just not worth doing something in the music space, because if you want to actually do what the technology enables, the kinds of things that are cool and useful and which consumers would really like... you'll get sued.
Take that away and you get less trial and error, and slower innovation (and less interesting innovation). Look where we are today, fifteen years later. We've basically reinvented radio and put it online. We're barely getting past that stage. You can read the whole paper for more on that, but I did want to highlight one key section in the paper: which is how the content industry always completely downplays the importance of the technology and services. Any time there's a successful new service -- whether it's iTunes or Netflix or Spotify or Pandora or YouTube -- you'll find stories about the incumbents trying to denigrate and mock it, or even outright kill it. They talk about how those services are "nothing without our content," and they get angry if any of those services make any money.
This is ridiculous. Yes, the content is important, but if it was just
the content, then those services never would have become successful in the first place. The reason those services are successful was because they actually innovated and provided convenience, access, ease of use
and other nice features that were missing before. Too many copyright maximalists simply can't bring themselves to admit that you need both the content and the services working together. When you trash those services, and attack them or try to saddle them with ridiculously high fees, you break down what works, and you actually drive more people to infringing alternatives. Here's a snippet from my discussion on this point (with footnotes removed):
Throughout all of this, a unique pattern emerged. The labels would always massively overvalue their own content, while simultaneously undervaluing the various innovative services. Phrases along the lines, “without our music, they’d be nothing” were heard frequently in arguing why it was all about the content. The truth, however, is that it was the combination of the two that were important. Yes, the services needed the music to work, but so too did the labels need these new services to adapt to a changing marketplace.
This should have been obvious from the fact that people would flock to these new services, yet failed to show up to the record labels’ own attempts to innovate or provide something new. However, as soon as any service showed any kind of promise, even if “licensed,” the labels would seek to kill the golden goose by claiming that the rates were unfair, and the innovators were making money unfairly off the backs of the copyright holders (by which they meant the labels, not the musicians, of course).
Take, for example, the brief heyday of music video games like Guitar Hero and Rock Band. For a year or two, the recording industry fell head over heels in love with these games, because people were playing them quite a bit, and they were (briefly) willing to pay a slight premium to get access to music from well-known bands and musicians. Rather than build on that, the industry did two things: it focused all of its attention on those kinds of games, absolutely flooding the market and making people get sick of the game genre, and demanded much higher royalties.
The viewpoint seemed to be that there could be almost no benefits for the innovators. Nearly all of the benefits had to accrue to the labels, or it would be seen as a problem. In fact, the one exception that got through was iTunes, and that was quickly seen as a “problem” by the labels, even as it was dragging them, kicking and screaming, into the marketplace for digital music. The view is one of an extreme zero-sum world, where if someone else is benefiting, it must mean that the labels were losing out. They didn't even hide this view of the world. Doug Morris, then head of Universal Music (now head of Sony Music) explained to a Wired reporter that investing in new innovations that weren’t paying money upfront meant that “someone, somewhere is taking advantage of you.” As laid out in the article, Morris was uninterested in technology, and didn’t even know how to hire a competent technology person, so his focus was on making sure everyone paid up immediately. Anyone making money in the music world without first paying a massive cut were dubbed “thieves.”
I find this tragic. If the entertainment industry had recognized early on that the tech industry wasn't an enemy, but a provider of wonderful new tools and services that helped to expand their market, we'd be much further along. Getting these things right takes time and experimentation, but the legacy players refuse to accept that. They want a perfect solution that fully replaces their old business 100% (or more) without any disruption -- and they want to accrue all of the benefits, without any going to the actual innovators. That, of course, doesn't help anyone, least of all the actual content creators.
There's so much innovation and opportunity available in the music space -- it's just sad that we've only made baby steps since Napster, when we should be leaps and bounds further along.