Landes and Lichtman (2003)

From Copyright EVIDENCE

Advertising Architectural Publishing of books, periodicals and other publishing Programming and broadcasting Computer programming Computer consultancy Creative, arts and entertainment Cultural education

Film and motion pictures Sound recording and music publishing Photographic activities PR and communication Software publishing (including video games) Specialised design Television programmes Translation and interpretation

1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Landes and Lichtman (2003)
Title: Indirect liability for copyright infringement: Napster and beyond
Author(s): Landes, W., Lichtman, D.
Year: 2003
Citation: Landes, W., & Lichtman, D. (2003). Indirect liability for copyright infringement: Napster and beyond. Journal of economic perspectives, 113-124.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: The work at hand consists of some theoretical, albeit problem-based, elaborations of an economic model on indirect liability, within the framework of the Chicago Law School approach.
Data Type: Primary and Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: No
Government or policy study?: No
Time Period(s) of Collection:
  • Not stated
Funder(s):
  • Olin and Bradley Foundations, Merck, Microsoft and Pfizer

Abstract

When individuals infringe copyright, they often use tools, services, and venues provided by other parties. An enduring legal question asks to what extent those other parties should be held liable for the resulting infringement. For example, should a firm that produces photocopiers be required to compensate authors for any unauthorized copies made on that firm's machines? What about firms that manufacture personal computers or offer Internet access; should they be held liable, at least in part, for online music piracy? In this essay, we examine how modern copyright law addresses these questions and we evaluate the resulting system on economic grounds.

Main Results of the Study

All else equal, contributory liability is more attractive a) the greater the harm from direct copyright infringement; b) the less the benefit from lawful use of the indirect infringer’s product; c) the lower the costs of modifying the product in ways that cut down infringing activities without substantially interfering with legal ones; and d) the greater the extent to which indirect liability reduces the costs of copyright enforcement as compared to a system that allows only direct liability. Napster is different from a VCR manufacturer because it has low-cost ways of discouraging piracy without impinging on legitimate use. That is the core insight necessary for the design of an efficient indirect liability regime.

An efficient approach to indirect liability might start by applying a negligence rule to any activity that can lead to copyright infringement. The difference is that current law focuses on knowledge, control, the extent of any noninfringing uses and other factors without being particularly clear as to why those issues are central. An explicit negligence rule would lay bare the underlying logic of the indirect liability inquiry. One drawback to the modern implicit negligence approach is that, as applied to new technologies, it can engender considerable uncertainty. A producer responsible for a new audio recording device, for example, might find it difficult to predict what courts will require in the new setting. In response, such a producer might choose to be excessively cautious. This explains the safe harbor provision introduced by the Digital Millennium Copyright Act However, , competition in the market for Internet service provision should mitigate this problem.

In addition to negligence liability and safe harbors, an efficient indirect liability regime might also include a tailored tax applicable to particular tools, services or venues associated with copyright infringement.

Sometimes indirect liability should not be an option. The costs in terms of unavoidable interference with legitimate products might be too high, and society would therefore be better off forcing copyright holders to rely on other mechanisms. However, sometimes other mechanisms are too costly, and indirect liability should therefore be the only option

Policy Implications as Stated By Author

  • The authors suggest that, in addition to negligence liability and safe harbors, an efficient indirect liability regime might include a tailored tax applicable to particular tools, services or venues associated with copyright infringement.
  • The authors point out that sometimes indirect liability should not be an option. The costs in terms of unavoidable interference with legitimate products might be too high, and society would therefore be better off forcing copyright holders to rely on other mechanisms. Sometimes other mechanisms are too costly, and indirect liability should therefore be the only option.
  • It is stressed that indirect liability (like copyright law more generally) should also be evaluated in light of the many technological remedies available to copyright holders.



Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Green-tick.png
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Green-tick.png
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)
Green-tick.png

Datasets

Sample size: 2
Level of aggregation: Economic model
Period of material under study: Not stated