Disrupting Copyright: How Disruptive Innovations and Social Norms are Challenging IP Law 9780754676119, 9780754672180, 9780754671046, 9780367354978, 9780429342073

Citation preview

Disrupting Copyright

New innovations are created every day, but today’s business leaders are focused on finding disruptive innovations which are cheaper and lower performing than upmarket technologies. They create new markets and challenge the status quo of existing technological thinking, creating uncertainty both in the future of the innovation and the outcome of the market upheaval. Disruptive innovation is an influential innovation theory in business, but how does it affect the law? Several of these technologies have brought new ways for individuals to deal with copyright works while disrupting existing market expectations, while their ability to spawn social norms has presented challenges for legislation. Considering disruptive innovation as a class, this book examines innovations that have impacted copyright in the past, what lessons can be learned from how the law interacted with them, and how the law can successfully deal with them going forward. Creating comprehensive guidance that can be used when faced with disruptive innovations with the aim of more successful legislation, it considers whether copyright law itself has been disrupted through these innovations. Exploring whether disruptive innovations as a class have unique properties that necessitate action by legislators and whether these properties have the possibility to disrupt the law itself, this book theorises how the law should deal with disruptive innovations in general, going beyond a discussion of the regulation of specific innovations to develop a framework for how lawmakers should deal with disruptive innovations when faced by one. Margery R Hilko lectures at the Sutherland School of Law at University College, Dublin.

Intellectual Property, Theory, Culture

Series Editor: Johanna Gibson, Herchel Smith Professor of Intellectual Property Law, Queen Mary University of London, UK

This series presents theoretical and cultural examinations of intellectual property laws, developments, and policy. Volumes in the series may be identified by their innovative and critical analyses and their original contributions to international debate. Interdisciplinary in approach, the series will be of interest to intellectual property experts and stakeholders, policy advisors, and NGOs, as well as students and researchers in the very critical areas of intellectual property law, anthropology, and cultural studies. Also in the series: Food Security, Biological Diversity and Intellectual Property Rights Muriel Lightbourne ISBN 978-0-7546-7611-9 Intellectual Property, Medicine and Health Current Debates Johanna Gibson ISBN 978-0-7546-7218-0 Patenting Lives Life Patents, Culture and Development Edited by Johanna Gibson ISBN 978-0-7546-7104-6 Disrupting Copyright How Disruptive Innovations and Social Norms are Challenging IP Law Margery R Hilko ISBN 978-0-367-35497-8 https://www.routledge.com/Intellectual-Property-Theory-Culture/bookseries/IPTC

Disrupting Copyright

How Disruptive Innovations and Social Norms are Challenging IP Law

Margery R Hilko

First published 2021 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2021 Margery R Hilko The right of Margery R Hilko to be identified as author[/s] of this work has been asserted by him/her/them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 9780367354978 (hbk) ISBN: 9780429342073 (ebk) Typeset in Times New Roman MT Std by KnowledgeWorks Global Ltd.

Contents

Preface Acknowledgements 1 Disruptive innovation and the law

vii xi 1

Disruptive v sustaining innovation: the core of the theory  2 What is disruptive innovation?  3 Disruptive innovation in legal discussion  7 Disruptive innovation: the noun, the theory, and the challenge  9 2 Technology, law, and shifting society  

20

How technology changes society and societal priorities  20 Law, society, and technology  26 Why disruptive innovation?  30 Signal to noise  34 3 Social norms and disruptive innovations Norms and signals  42 Norms and disruptive innovations  43 Question: is the disruptive innovation linked to a demographically significant group?  45 Question: have conflicting norms arisen?  48 Question: is there interest in the technology?  52 A confluence of factors, or how to affect policy  55 Conclusion  57

41

vi Contents

4 Legislating for well-known norms: photocopying

64

Early development period pre-1959  66 Disruptive period development 1959–1970  75 Mature technology period  79 US legal history surrounding xerography  80 Xerography’s social norm influence on the law  81 5 Legislating during the disruptive period: radio

89

Early development pre-1922  90 Disruptive period 1922–1927  95 Mature technology in the 1930s  101 Differences between the United States and United Kingdom  104 Conclusion  106 6 Legislating early: personal computers

113

Before the personal computer  114 Early personal computers 1976–1979  117 The disruptive period 1980–84  121 Post-1984  128 Conclusion  132 7 Disruptive innovation and regulation

141

Innovation and norms: identifying social needs  142 Disruptive technologies can highlight laws that require reform  148 Disruptive innovations require careful, cautious management by law reformers  153 Regulating disruptive innovations  157 8 The principles at work

169

The disruptive internet  171 Artificial intelligence: disruptive innovation or not?  173 Applying the principles  177 Conclusion  184 9 Final thoughts Bibliography Index

189 194 219

Preface

That this book is coming to completion in 2020 feels fated. This started because I had never been able to understand how copyright and the software industry became so antagonistic and I wanted to explore how that happened. Along the way, it became clear that this question was much larger than simply copyright and software. Disruptive innovation became a key concept that warranted exploration. Not in the way most legal minds had done, where the disruptiveness of a technology was assumed, but in considering how that disruptive innovation affected those around it. The behaviour of those who live and work with disruptive innovations is changed in a myriad of ways. Why were some of those proving so difficult for the law to find a solution for? Then the COVID-19 emergency struck, and it brought home just how much companies and individuals had not been using many of the new performance parameters that modern disruptive innovations provided. It was disruptive innovations, and their new performance parameters, that allowed workers to work from home, and for companies to continue to service their customers during the shutdown. Disruptive innovation’s contributions to the world have never been clearer. Some readers will be surprised that this book doesn’t spend the bulk of its time discussing modern technologies like cloud computing, cryptocurrencies, or artificial intelligence. This book aims higher than the lessons we can learn from current disruptive innovations. It wants to understand how this type of innovation finds its place in society and affects the law, and we cannot do that by studying technologies whose story has not found completion. If we want to learn how best to legislate for disruptive innovations, we have to be able to see how the legislative fixes worked (or didn’t) over time. That’s not possible with the technologies currently disrupting today’s markets. We cannot know how the laws put in place for cloud computing affect the norms of users in ten years time, or whether they will have had to be updated to take other factors into consideration. The data just isn’t there. We need technologies that have had their day, been disruptive, been legislated, and matured into stability both in the legal sphere and on the market.

viii Preface

That is why much of this book looks at the past. However, it does so in very different ways from traditional narratives. Rather than simply looking at the legislative process that surrounds a technology, this book considers the trajectory of the technologies studied, the social impact of those technologies, as well as how legislators reacted. By combining all three narratives, we can view the full spectrum of how a disruptive innovation affects the world around it. For some, this results in a book that has fingers in too many pies. This is not a black-letter law book, and could not be. Looking solely at the legal changes that happened around disruptive innovations cannot explain why a law failed to be successful or why it continued to have pushback from aspects of society. The full understanding of disruptive innovations is not possible without the history of the technology and its social impact. These innovations present clear challenges to businesses and lawmakers, and without a full understanding of their potential, it is difficult to understand why certain approaches will fail. I wanted to look at disruptive innovation as a class of innovations and determine whether this class of innovations has properties that have affected the law in the past or have the potential to do so in the future. There is no doubt that this class proves difficult for legal minds, legislative and otherwise, to find appropriate solutions. Part of this is the inherent properties of disruptive innovations, as are explored in Chapter 1, and part of it is the social ramifications that flow from disruptive innovations as explored in later chapters. These discussions brought us to three key concepts in Chapter 2. 1 Disruptive innovations uncover new or unknown social needs. 2 Disruptive technologies can highlight laws that require reform. 3 Disruptive innovations require careful, cautious management by law reformers.

These proved true in all cases, and echo some of the wisdom of the disruptive innovation theory as espoused by Clayton Christensen for business managers. Lawyers and lawmakers, as it happens, can suffer from incumbent thinking, too. Exploring technologies that historically caused difficulties with copyright, it quickly became clear that disruption was a factor. However, it is not always the technology itself that causes issues. The social norms surrounding these technologies have made the concept of controlling copyright works difficult to maintain. These technologies provide customers and the general populace with something they want – in many cases a sense of connection. They enable this need at the same time as they make it difficult for

Preface ix

the copyright holders to retain control. With their widespread appeal, these innovations have systematically made copying easier and control harder. Each studied technology had its own timeline, and it provided interesting lessons as to when legislation could and should be undertaken. The approaches that were more successful were those that acknowledged the new performance parameters of the disruptive innovations and made efforts to work with a wide variety of stakeholders. This allowed us to develop principles that can be used to guide lawmaking efforts when confronted with a disruptive innovation. Those principles were:

Principle 1: Disruptive innovations will present as something familiar but are not the same thing. Principle 2: Market saturation is not needed, but technology maturity is desirable for understanding a disruptive innovation’s impact. Principle 3: Early legislative reform enacted prior to or during disruption can face challenges from unforeseen consequences of adoption. Principle 4: Late legislation can still provide adequate protection for rights holders. Principle 5: Consider gatekeepers.

These principles work to guide lawmakers. They are deceptively obvious, reminding us that these innovations look like something we know, but are ultimately new and novel. The social impact of these innovations are widespread, and the caution that was highlighted in the key concepts is once again on display. There are warnings in these principles, too. Swift action may be called for by rights holders who are confronted with new business models where it isn’t obvious how they can receive their rents. However, the truth is that the courts are there to ensure it does happen. Being pressured to “fix the problem” with a disruptive innovation should not be condoned, as there are remedies available. These principles can be applied to issues today, explaining the problems inherent to current legislative approaches taken towards a number of disruptive innovations. Attempts to legislate for disruptive innovations where the market was unformed, the eventual norms unknown, or the innovation misconstrued has brought condemnation from industry. The lack of acceptance of social norms surrounding internet usage has seen legislative attempts that go against such protested. The lack of legally liable gatekeepers for internet content is a continued difficulty for rights holders. These continued conflicts between copyright and the tech industry speak to a failure to find an appropriate solution for rights holders and others. Overall, I hope this book invites us to look at copyright in a new way. Connection is the norm. It is a norm that has been gaining traction for over

x Preface

150 years. We cannot ignore the social need that this norm comes from, nor deny that connectivity is a human need driving modern society. To do so invites continued difficulties and social norm backlashes. It invites the kind of protests we’ve seen with the adoption of the Copyright Directive and the attempt at SOPA/PIPA. Counter to the connection norm is the idea of control. Controlling a copyrighted work has been a basic tenet for rights holders for some time. However, this has consistently become more difficult for rights holders as disruptive innovations provide new ways to share content. However, perhaps with the new revenue streams available, we should be considering whether full control is possible, or work to enable rents in different ways. Disruptive innovations are continuing to push what can be done, creating new ways to copy, share, and distribute works with low effort. We need to find new solutions that incorporate all interests that work today. Perhaps continuing to incorporate control into copyright law may be disingenuous to our technological reality.

Acknowledgements

This book was made possible by the patience and guidance of many. Foremost is Professor Phillip Johnson whose support and guidance was invaluable. Thank you for all your assistance and for keeping this project from spiralling. Thank you to Dr TJ McIntyre for the inspiration for this project in the first place and for all your assistance over the years. Lastly, thank you for the patience of my husband, who not only continued to believe in me but was willing to bring me cups of tea for one more year. Margery R Hilko

Chapter 1

Disruptive innovation and the law

“Success is a lousy teacher. It seduces smart people into thinking they can’t lose.”1

“Would you like some fries with that?” my waiter asked. His t-shirt proclaimed “DISRUPT YOUR ORDER,” but thus far, I saw nothing new or different about ordering burgers and fries. My waiter may not have known it, but his t-shirt was just one more incidence of a world gone “disruption mad.” The slogan was catchy, but the experience failed to live up to the hype that many see attached to disruption. It comes as a surprise to many, probably including my waiter, that “disruption” has an academic theory of innovation behind it. The idea of disruption has taken the fast-paced business world by storm. Some of the most sought-after new technologies currently are those deemed ­“disruptive;” driving new markets, new innovations, and new customers to stagnant fields. How does this concept interact with the law? Inevitably, technology and law will come together, whether in disputes or regulations. If this new-found craze for disruptive innovations is this prevalent in the business world, should legislators be taking greater notice of disruptive innovations? Every industry will eventually meet the challenge of disruption according to Clayton Christensen, the business thinker who coined the phrase and wrote The Innovator’s Dilemma, the book that inspired the disruptive craze.2 The legal sphere sometimes appears to pass the vagaries of time without significant change from outside influences, changing significantly only when law reform occurs. However, if Christensen is correct, then this is merely a fiction perpetuated by the inability to grasp the possibilities beyond our history. It is the very success of the legal regime, this “incumbent thinking,” that blinds our eyes to the possibilities that disruptive innovations provide. Disruptive innovation reminds us that what we think we know may not always be how it is, and the legal world is not immune to that. Seduced by the apparent success in guiding society to date, it is difficult to imagine of forces beyond the catastrophic that would upset the legal framework we

2  Disruptive innovation and the l aw

labour within. The law is ripe for disruption, whether that disruption occurs through the practice of law, the effect of specific technologies on the law, or challenges to the core principles upon which the law is built. How this disruption will play out has yet to be determined, and the prudent legal mind will learn to identify disruptive innovations that will challenge the law. This book examines the intersection of the disruptive innovation theory and the law. Before this can be fully explored, the connections between technology, society, and the law are explored generally. In drawing these links, it is possible to see the interconnectedness of the three and how important considerations of technology and society are to law creation and reform. We start by considering how the disruptive paradigm can be applied to and within the legal world, this chapter will explore how and why disruptive innovation is relevant to the legislator. But before we look at how it intersects with the law or society, we have to understand what disruptive innovation is. The simple response is that disruptive innovation is a business management theory first hypothesised by Clayton Christensen and popularised in his 1997 book The Innovator’s Dilemma.3 It has had a significant impact on the business and technology industries and been applied to a myriad of industries such as online financial marketing, low-cost airlines, human resources, Peer-to-Peer networking, personal computers, and education to name a few.4 However, a deeper understanding of this theory is necessary before we continue.

Disruptive v sustaining innovation: the core of the theory Business management is interested in technological innovation for two purposes. Understanding innovation allows companies to predict future growth patterns or opportunities, and it enables managers to direct their R&D efforts towards those that will maximise profits. Business innovation theories have grown to interpret, explain, and guide businesses through “periodic shifts between chaos and continuity,”5 and studied innovation in a variety of sectors. It comes as no surprise that there are competing theories, categories, and models of innovation. One of the common factors among many business innovation theories is their polar nature in categorising innovations. Broadly speaking, categorisations attempt to show the differences in how innovations and markets change. Each of these categorisations attempts to put into context the challenge faced by firms when confronted with that inevitable change. Whatever the names and the specifics, each of these theories and categorisations attempts to explain minor change versus major change in innovation patterns. In the disruptive innovation theory, the categories are “disruptive” and “sustaining.” Understanding the differences in these categories is

Disruptive innovation and the l aw  3

key to understanding the disruptive paradigm as a whole. Innovations that bring smaller change are classified as sustaining, incremental, or competency-enhancing.6 According to Christensen, the survival of a firm is rarely challenged by such innovation, and business managers and consumers find this type of change easy to understand. These minor innovative changes are the kind we all are familiar with. Sustaining innovation, the disruptive theory’s minor change categorisation, is where the core technology in a new product is an improvement on what has come before, an obvious upgrade, or merely incorporates new features.7 Sustaining technologies are ordinary, building upon the technology that has come before. Sustaining innovation is common, and happens regularly. We intuitively understand this type of change having been conditioned to expect it through business-innovation practices over the past century. Sustaining innovation simply makes sense. Most importantly, sustaining innovations improve their performance in ways that the primary customer base understands, in working towards standards that customers have traditionally valued.8 The path forward is clear for these innovations, as both the firms that make them and the customers that use them know what to expect and how the improvements will benefit them. When Apple launches its latest improvement and the market upgrades to the shiny new iPhone, this is a sustaining innovation. The upgrades and new features on the iPhone are typically accepted and understood by the market and customers. Better security, faster processing, improved camera, and larger screen size are all traditional performance parameters for the smartphone market. These improvement parameters have a known ability to attract customers. While some customers would have no need for some of these features, the majority are able to see the use and benefits of the new model.9 This is the classic way that sustaining innovations behave with a ready market for the innovation. Opposing these are the technologies and innovations, which result in big changes to business models, supply chains, markets, and underlying technological processes. These can be classified as disruptive, radical, architectural, or competency destroying.10 These are innovations with the capability to radically alter existing markets, undermine the position of firms within that market, and “cannibalize” previous technologies.11 These types of innovation present greater challenges for business firms who may find it difficult to cope or adapt to the new technology’s framework and market and, if it meets the requirements, may be disruptive.

What is disruptive innovation? The question becomes, what, precisely, is disruption? Disruptive change is a major and rare change.12 The fact that disruption does not happen on a regular basis makes it difficult to study, define, and understand but also

4  Disruptive innovation and the l aw

makes the theory better for assisting in selecting technologies that may have an impact. It becomes a select group by definition. One of the most compelling and persistent criticisms of Christensen’s disruptive theory is the issue of definitions, particularly the lack of a definitive definition of the theory and terms used.13 Christensen’s body of work does not provide concrete definitions of the terms “disruptive,” “disruption,” “technology,” or “innovation.” These last two are compounded as Christensen changes from technology to innovation in later works, accepting that the theory holds true for broader innovation models and not just specific technologies. This requires any discussion on these subjects to consider what these terms mean. In creating the disruptive theory, Christensen focused on the circumstances surrounding an innovation rather than merely its properties.14 This differs from prior categorisations which consistently looked at the nature of the innovation itself. For example, architectural innovation concentrates on how the components of a particular technology are pieced together.15 This differs from the disruptive theory which would only consider a technology disruptive based on its effect on the market, regardless of how the technology was pieced together. Perhaps more useful than a definition, Christensen created a road map of the circumstances that surround disruption and the technologies that produce it, which can be identified. These include an over-served market, new entrant possibilities, and an under- or non-served consumer base.16 Where these circumstances exist, disruption is more likely to follow. This does not give us a usable definition, but it does lead towards a standardised understanding of disruption. Despite the initial difficulty found in this lack of a precise definition, the literature has taken the concepts elucidated by Christensen and applied them. A definition, or at least a collection of attributes, has become standard in the literature. Distilling the definitions from the literature, the definition used in this book includes the major characteristics of a disruptive innovation as well as providing a way to test whether an innovation falls under the disruptive category. A disruptive innovation can be defined as such:

A technology that creates new markets or changes the performance metrics upon which companies compete.17 Additionally, a disruptive technology will have at least two of the three characteristics: • • •

Lower performance along metrics traditional customers value Lower price points for products18 Higher accessibility for non-mainstream consumers19

Disruptive innovation and the l aw  5

These three factors prove highly indicative in determining what is and what is not a disruptive innovation and will be used to help identify disruptive technologies. While not all disruptive technologies have all three factors, not having any is often a sign that an innovation may be purely radical and not disruptive.20 However, these three factors must be considered secondary to the primary requirement that a disruptive innovation must change the performance metrics of its market or create new markets as this is the core difference between disruptive and sustaining innovations. This still does not guide us in the most basic question; what is a technology/ innovation? “Technology” v “innovation” In a general sense, defining “technology” is a difficult proposition. Many definitions, including those found in popular dictionaries, seem inadequate. Rather than construct a meaning merely useful for this project, the definition of technology used will be tied to other concepts in use already. Specifically, how is the term “technology” defined or utilised within the disruptive paradigm? The disruptive theory came from considering a high-tech industry, the disk-drive industry. Hard drives are commonplace today, however, the time period studied by Christensen was a particularly turbulent and inventive period for the industry, producing five new architectures over twenty years, establishing common formats, sizes, and standards. Initial disruptive innovations were predominantly high-tech industry products; the Bell telephone, Honda motorcycles, minicomputers, personal computers, wireless telephony, endoscopic surgery, and eBay. However, by 2003 the list of disruptive technologies included some surprises. Discount department stores (K-mart, Walmart, etc.) and catalogue retailing (Sears, JC Penney, and Montgomery Ward) notably stand out as businesses not synonymous with advanced technologies.21 The reason for this comes from a broader meaning to the term “technology” in Christensen’s theory. This broader definition of technology is not unknown to the business world. Tushman and Anderson defined technology as “those tools, devices, and knowledge that mediate between inputs and outputs (process technology) and/or that create new products or services (product technology).”22 Burgelman defines it as “the theoretical and practical knowledge, skills and artifacts that can be used to develop products and services as well as their production and delivery systems.”23 This means that the usage of the term “technology” in business-management discussions encompass much more than what an average person might consider technology to be. Perhaps because of this ambiguity or to increase applicability, Christensen changed his terminology.24 Christensen originally used the term “disruptive

6  Disruptive innovation and the l aw

technology,” but he changed this to “disruptive innovation” in later works. By changing to “innovation,” this opened up the theory to incorporate business models, supply-chain management techniques, and even production secrets. For example, Ford’s Model T is considered to have been disruptive to the automotive industry,25 but what was disruptive about it? The Ford production line, which revolutionised car-making and no doubt used a number of high-tech or cutting-edge machines, was an innovation in and of itself. While the process of the production line was in its time a new and innovative idea, does it really classify as a technology? Further, was the production line the disruptive innovation in question or was it the low-cost car that resulted from that process? The broader definition of technology would include both as they gave Ford a significant competitive advantage. The change in definition came not just with the shift from “technology” to “innovation.” Partly, this may have been in response to the growing realisation that the word “disruptive” had ordinary connotations that do not immediately line up with the way Christensen expresses it. Christensen has admitted the failures of the theory’s naming nomenclature. This disconnect led to some attempts at re-branding the name. Intel’s Andrew Groves called it the “Christensen effect,” while Christensen himself admits that in many cases it is the business model, not the technology, that is the source of disruption.26 There has also been an expansion into “new-market”/“high end” or “low end” disruption.27 “New market” disruptions are those which create new markets rather than competing for users who would already be using a device. “Low end” disruptions are those which pitch their product or service at the lower end of the market, providing users with sufficient usefulness or services without overburdening them with more than users can utilise. This has been used to identify different types of disruptive innovations based on the circumstances surrounding their entry into the market, as opposed to where the innovation comes from. Is there a significant difference between “technology” and “innovation?” Christensen simply replaced the first term with the second, without significant commentary on the definition of either. In using the disruptive theory in policy debates, Hasselbalch defines the difference as technology being the underlying technological solution to create better, faster solutions, while innovations are the end-user products or services that allow the commercialisation of those technologies.28 While the distinction is mainly semantics, the usefulness of such a distinction is questionable. If innovation isn’t commercialised, then it cannot affect, change, or create a new market and therefore fails to be disruptive. Perhaps a solution to the answer of whether technology should be defined broadly or narrowly can be found in the law side. “Technology” in law is used in the way one might expect – to discuss mechanical arts or applied

Disruptive innovation and the l aw  7

sciences and the knowledge thereof. If one considers the usage of the term “technology” in legal literature, the narrow definition of technology as “high technology” is seen more consistently both as a potential regulatory tool and a regulatory target.29 However, if one shifts to use the term “innovation” in the legal literature, much of what is readily found is primarily relating to patent law. Patents, of course, while new and inventive, are not confined to products. Processes are a patentable subject, which would be covered under the business definition of innovation but would not necessarily be a product. There are difficulties in limiting the definition of “technology” to merely the original high-tech vision of Christensen and, for that matter, the business world. For one, it no longer reflects the usage of the term disruptive innovation in the current literature that has grown since the theory’s inception. Therefore, restricting the technology through a tight definition to those found to be “cutting edge” is overly restrictive. Rather than attempt to limit the type of technology or innovation, our definitions should focus on how the terms are used. The differences between the two usages being that technology may be defined as a specific, individual technology being discussed. Innovation encompasses the greater aspects of a technology, including the human element and processes that allow the technology to be utilised or marketed.

Disruptive innovation in legal discussion Legal commentary has been haphazard in the application of disruptive theory. Some commentators have a clear understanding of disruptive innovation,30 whereas others use the term without a true basis of understanding the implications of disruption. Often the term appears to be used as an attention grab within the title with no discussion of the theory or its applicability in the text. Much of the discussion in legal scholarship pertains to case law surrounding specific disruptive innovations that have spurred legal debate. For instance, Napster, a disruptive innovation of Peer-to-Peer, is mentioned when discussing copyright law. The technology is not the focus, nor is the fact that it is disruptive. Merely the impact of the technology in the legal sphere is considered. There has been little to no application of the disruptive theory beyond the identification of a technology as disruptive, often simply taking a technology’s classification as disruptive as given without engaging in what that means. This is particularly notable in the discussions surrounding case law on disruptive innovations where the only mention of disruption is to identify the technology as such. Outside of discussions of case law pertaining to specific disruptive innovations, most legal research on disruptive innovation has focused on the disruption of legal services31 and legal education.32

8  Disruptive innovation and the l aw

Perhaps the greatest impact of disruptive innovations in the legal sphere to date has happened in the modern law office, where technologies used today as a matter of course differ greatly from those used in the early 1990s.33 The work-flow of the modern lawyer, while similar, uses a number of processes and technologies that did not exist before the present age,34 including the automated document assembly, online web advisors, and predictive coding.35 The introduction of laptops, tablets, and smartphones has altered the possibilities of the modern lawyer, allowing them flexibility in the location of their work that was non-existent previously. The provision of online databases36 and legal journals37 has offered further freedom of movement for lawyers, providing access to materials that formerly resided only in law libraries. While neither the office nor law libraries are replaced fully, the freedom of movement and accessibility are two benefits that have come from these innovations. The literature’s consensus is that change to the way lawyers provide legal services is coming, and disruptive innovations have a clear role to play in that change. In his book, The End of Lawyers, Richard Susskind argues convincingly that disruptive innovations will eventually challenge the legal services market, potentially resulting in the failure of “complacent” law firms.38 Using Christensen’s definition of disruptive innovation to identify “disruptive legal technologies” that pose challenges for law firms, Susskind demonstrates how the shifts in the technological world have and will continue to change the way legal services are provided.39 His conclusions on disruptive technologies and the legal profession are that they have and will continue to affect the manner in which legal services are provided. His analysis provides us with the inescapable truth that disruption is coming to the unwary law firm that chooses to ignore these technologies. Competitiveness in today’s global market demands legal firms provide services that are better, faster, and cheaper. The law firm or law school that ignores these possibilities may find their competitors providing cheaper alternatives to a broader base of clientele. Without considering such innovations, a law firm may struggle to stay competitive in face of technological change just like any incumbent business faced with disruption. However, the provision of legal services does not disrupt the law itself, no matter how or by whom it is done. While changes in legal services will no doubt affect how people interact with the law, it does not disrupt the underlying laws. Whether a lawyer works from home versus an office or uses pre-formatted document assembly software rather than writing drafts from scratch does not fundamentally change what law is. The law being practiced is not changed due to the changes in how lawyers are working. The law continues to exist in its current form, without any challenge to its precepts and tenets, even with radical changes to the provision of legal services. As such, disruption to legal services is outside the remit of this research. So, if this legal services disruption is not part of this research, what is?

Disruptive innovation and the l aw  9

In applying the disruptive theory to the legal sphere, several possibilities are identified. We can think of the intersection of the law and disruptive innovations in three ways. By simply considering three different linguistic uses of the term “disruptive innovation,” different approaches become apparent. Specifically, we can consider disruptive innovation as a noun, a theory, and a challenge.

Disruptive innovation: the noun, the theory, and the challenge The noun Disruptive innovation the noun refers to the products that the theory applies to. These innovations have altered and created markets, changing values and standards. This legal commentary thus far has mostly discussed disruptive innovation. These innovations have already come into contact with the law in various ways, appearing in our legislatures and courts as the very item in question. Using particular innovations as a lens to view disruption, we can see how a single disruptive innovation can interact with the law. One such innovation is the telephone. Despite it and its mobile successor’s popularity now, the telephone was not immediately a success.40 Like many disruptive innovations, the telephone went through a period where its very usefulness was questioned. As a disruptive innovation (the noun), the telephone interacted with the law in several ways. First, the telephone was considered property, both the actual physical telephone and the franchise of providing telephone services. It was commoditised when Bell filed his patent application, shortly followed by suits on the entitlement of Bell’s patent.41 Legislatures found themselves compelled to act on foot of the telephone, passing legislation regulating the creation of telephone poles,42 privacy considerations,43 competition factors,44 and eventually creating the basis for modern telecommunications law.45 So as a noun, disruptive innovations have been objects, rights, property, and the impetus for legislative action. Disruptive innovations as a noun are relevant for legal practitioners who will inevitably come into contact with these innovations, whether in practice or as the subject of litigation. These innovations have the potential to change the legal service market, altering how lawyers practice law and provide services to clients.46 For instance, in its first fifty years, the telephone’s impact transformed the legal services community, providing new communication avenues for both lawyers and clients.47 Whether it is as the subject of judicial proceedings or as a change in work practice, disruptive innovations will creep into the legal sphere. Strategies for managing innovation and technologies through law reform need to be considered carefully to avoid creating new problems. The study

10  Disruptive innovation and the l aw

of disruptive innovations shows that there are unique challenges presented to the legislators and law reformers when encountering these technologies. Thus far, there has been no coherent strategy applied to disruptive innovations beyond following the current legal framework for technology in general. One common theme that emerges with disruptive innovations in legal proceedings is that courts are asked to determine whether a disruptive innovation could be considered a different technology. When faced with a similar, yet different, technology the courts have repeatedly failed to notice the difference of the disruptive innovations compared to technologies that have come before them. For telephones, the legal question in the United Kingdom was could the signals sent by the telephone be considered a telegram? The wording of the British telegraph statute was broad in its definition of a telegraph. In fact, the drafters of the Telegraph Act had made it so broad it covered almost any form of communication using a wired telegraph, and the question was whether the telephone qualified as such. “The term ‘telegram’ shall mean any message or other communication transmitted or intended for transmission by a telegraph. The term ‘telegraph’ shall, in addition to the meaning assigned to it in the Telegraph Act, 1863, mean and include any apparatus for transmitting messages or other communications by means of electric signals.”48 Because of this, the telephone could be regulated under the already existing telegraph legislation, something desired by the Postmaster-General who was keen to prevent the telephone from impinging on his telegraphic monopoly.49 Despite widespread confusion at how the two could be the same, the courts found it expedient to classify the telephone as a telegraph, despite the myriad of differences between the two technologies.50 The telephone is not the only innovation to suffer this fate. This confusion of how to classify disruptive innovations and the difficulty in finding equivalents for these innovations continues to be a theme the courts face today that can cause frustration and concern.51 One legal issue that the telephone did not have to battle was the question of legality, but the legality of other disruptive innovations has been challenged at times, particularly when traditional business models are at risk. The fate of such disruptive innovations in court may mean the success or demise of the innovation in general. Using the term as a noun has been the primary source of discussion on disruptive innovations in the legal literature. This usage is the home of the case study. Using disruptive innovation as a noun will inform our discussion of law reform providing relevant examples, but it is but one interpretation.

Disruptive innovation and the l aw  11

The theory Disruptive innovation can also be viewed as a process, and this process elucidates the core of the disruptive innovation theory. Disruptive innovation as a process is the theory, discussion, and principles derived from Christensen and shaped over the years through research.52 The “disruption” associated with these technologies stems not from the technologies themselves but the circumstances that surround the technologies in the market.53 This body of work was originally designed to assist business managers, but the lessons available are applicable to the law and law reform. Perhaps, the most immediately useful lesson that Christensen offers law-makers is the importance of vigilance. Without anticipating disruptive innovation, a business firm is highly unlikely to be able to deal with the challenge disruption poses.54 Disruptive technologies often show very little market impact immediately on release. Failure to detect either the changes in technology or the changes in consumer needs has been identified as one of the key factors in whether a business will fall in the face of disruption.55 Those changes can only be detected by a ready vigilance and attention to the shifting patterns of consumer and market needs. Vigilance is already a part of the work law reformers must engage in to identify and work through both personal and competing viewpoints.56 Unfortunately, technological change has resulted consistently in reactionary law-making, perhaps spurred by a lack of vigilance in looking at technologies coming down the line. Technologies arrive, begin to interact with society, and legislation only occurs once a technology becomes a nuisance or legal issues arise. In rare cases, social aims or the benefits of a technology can spur legislative action, allowing for infrastructure creation, providing new rights, or otherwise altering the trajectory of the technology. Failure to update the law and provide guidance on how technologies should be interpreted or dealt with has meant a “makeshift approach” in the courts with the fate of various technologies decided on a case by case basis. By failing to identify how technologies should be managed, the courts have found themselves shoe-horning each technology into the existing legal framework. In attempting to apply the law to various technologies, courts and legislators have often attempted to create equivalencies between technologies that may not be appropriate.57 This may be a by-product of the nature of persuasive arguments where narrative and ideologies are key, whether they adequately reflect facts or not.58 It is easy to view a cheaper version of a current technology as nothing more than just a straight replacement, but with disruptive innovations, this is not always the case. However, vigilance is only part of the equation. Consistently, big firms who fall prey to disruptive innovation are found to have been well aware of the innovations that eventually brought about their downfall.59 Added features are consistently created, even where they are unnecessary or unneeded

12  Disruptive innovation and the l aw

by customers, thereby creating the “overserved” market necessary for disruption. By not understanding the customer needs, firms create the ecosphere for their own downfall.60 The lesson here is that it is not enough to merely mark the presence of a disruptive innovation, but understanding the implications and possibilities implicit in that innovation’s adoption is crucial. In essence, approaching all technology that looks the same, in the same manner, can result in failure. Certainly, the literature on disruption makes this point for business managers. Treating disruptive innovations like any other technology consistently leads to market leaders failing as the ability to shift to disruptive innovation proves difficult for businesses. This seems obvious, however, the law has had a tendency to approach technologies without differentiating between them. Attempts to avoid injustice has seen the rise of “technology neutral” law-making, which attempts to create laws that are not specific to a single technology but can be applied broadly. The need for solutions to current technological issues runs headlong into the desire for technology-neutral provisions that will provide longer-term legislation.61 Laws drafted without acknowledging current or anticipated future innovations may quickly become irrelevant or, worse, anachronistic. Even those laws drafted with future innovations in mind may end up failing to adequately deal with the reality of technological change. Such can be seen with the Digital Millennium Copyright Act (DMCA).62 Designed to bring Copyright to the modern internet, the Copyright Office has concluded: “Congress’ original intended balance has been tilted askew.”63 The DMCA was a forward-looking piece of legislation, but it failed to predict the ability for users to generate their own content, the speed of modern internet uploads and downloads, and the sheer amount of new websites that would be created. What was intended to be a simple notice and takedown process to prevent infringement online has resulted in an ongoing game of “whack-a-mole” for rights holders64. The technology progressed beyond the legislation and its inability to deal with the reality of the digital landscape has been apparent. As a process, disruptive innovation can be demonstrated through time. The theory provides us with assistance in identifying and dealing with innovations with unique challenges, warnings of the dangers, and guiding principles in the management of disruptive changes. Longitudinal studies can elucidate the challenges faced by legislators and law reformers in the past. By using the principles Christensen has developed, law reformers can avoid the trap of disruptive innovation, identifying potential sources of inequality through a watchful eye. The study of how the disruptive process interacts with the law provides an opportunity to consider how and where our guiding principles of law reform come from. Disruptive innovations are irrevocably tied to shifting priorities – in the uptake by the public, the changes in markets, and the push for companies to innovate faster, harder, smarter. Those shifting priorities

Disruptive innovation and the l aw  13

are useful for benchmarking and identifying areas where the law may be outdated or require reform. The challenge The last intersection is the usage of disruptive innovation as a challenge. This places the emphasis on the disruption caused by these innovations. Seen as a challenge, the disruptive part of the equation begins to take on greater impact. Business thinkers who understand the disruptive theory know that its existence presents a challenge to the very existence of a firm.65 Managers who fail to identify the possibility of disruption are consistently taken by surprise and find it difficult to recover once a disruptive innovation changes a market. Whether it is a dictionary definition of disruption or the more nuanced version of Christensen’s disruptive theory, the law is fundamentally averse to disruption. The law needs certainty, which is diametrically opposed to the changes that occur with disruption. Indeed, a defining feature of the law is certainty. For example, in European jurisprudence the term “legal certainty” has been accepted since the 1960s.66 This requires EU law to be clear, its consequences foreseeable, and sufficient information made public so that all parties can understand and comply with the law.67 This safeguards the fairness of legal proceedings by creating a level playing field for all. Without clear laws and sufficient information to interpret them, a party could not know whether an action, behaviour, or contract was illegal, resulting in an uneven playing field. In principle, these requirements exist at national levels as well. Legislators seek to create legal norms and frameworks that provide certainty for individual citizens.68 Indeed, the professional body of lawyers can be viewed as maintaining legal certainty through their shared knowledge of how the law works.69 This doctrine of legal certainty comes from the necessity of ensuring fairness in the legal system, ensuring that all parties are on the same footing. The challenge presented by disruptive innovation is that our view of the basis for legal principles and law may be challenged by these innovations. Law creates a stable basis for decisions through precedent and lasting legal norms that assist in creating predictability in the legal regime.70 If the basis for that reasoning is changed, how does that affect the law? Additive 3D printing demonstrates this possibility. Additive 3D printing uses computer-generated patterns to build an object sequentially and can be used to generate objects that would be difficult to create otherwise, such as enclosed gearboxes and replacement bones. The utilitarian justifications that underlie intellectual property require protection for goods due to the possibility of copying.71 If patent law is partially predicated on the cost of manufacturing and therefore the cost of infringement being high, what then

14  Disruptive innovation and the l aw

happens when 3D printing makes copying objects relatively cheap? With the advent of in-home 3D printers, that cost has dramatically reduced. If one of the assumptions behind patent law has changed, does that law still adequately balance all interests? Copyright law has already had to grapple with these questions having felt the impact of disruptive innovations with the digitization of music and books.72 Disruptive innovation as a challenge is the knowledge that disruption is likely to affect the law eventually. Like any business, the possibility of disruption should be a call for education and vigilance amongst law-makers so that the wave of disruption may be ridden to safer waters.73 The result of disruption to the law is of greatest concern to those who value the law’s stabilising aspects, but its possibility has been all but ignored. Is our lack of concern at the possibility of disruption the type of classic incumbent thinking that leads to the demise of businesses? Disruption need not necessarily mean the destruction of what came before, however, firms that have managed to survive the impact of disruptive innovations must change to do so.74 Therefore, the challenge presented to law-makers is how do we not merely future proof the laws created for technologies to come, but assimilate and ride the wave of disruption that may be heralded? By considering the challenge of disruption, we can place the changes wrought by these innovations within the context in the legal field and identify propositions that guide interactions with disruptive innovations in a way that minimizes the threat of disruption. With these intersections of the law and disruptive innovations, the possibility exists for the disruption of the law itself. The legal profession and academics have paid scant attention to the theory and how it could be applied to the law and the tenets for law. In doing this, they have played the part of the incumbent, expecting that these innovations will not impact the status quo. This book examines these intersections through a number of case studies, tracing disruptive innovation and how the law has reacted. But before we can do this, we have to understand the place disruptive innovation has in society, which is explored in the next chapter.

Notes

1. Bill Gates, The Road Ahead (Viking Penguin 1995). 2. Clayton M. Christensen, The Innovator’s Dilemma: The Revolutionary National Bestseller That Changed The Way We Do Business (First Collins Business Essentials. HarperBusiness 1997). 3. ibid. 4. Including this work and those in the literature, over 60 industries have been studied. Scott D Anthony and others, The Innovator’s Guide to Growth: Putting Disruptive Innovation to Work (Harvard Business Press 2008); Stephen K Callaway and Robert D Hamilton III, ‘Managing Disruptive technology— Internet Banking Ventures for Traditional Banks’ (2008) 5 International Journal

Disruptive innovation and the l aw  15











of Innovation and Technology Management, 55; Paul Vlaar, Paul De Vries and Mattijs Willenborg, ‘Why Incumbents Struggle to Extract Value from New Strategic Options: Case of the European Airline Industry’ (2005) 23 European Management Journal, 154; Jac Fitz-enz, ‘Disruptive Technology for Human Resources’ (2009) 35 Employment Relations Today, 1; Michael W Carroll, ‘Disruptive Technology and Common Law Lawmaking: A Brief Analysis of A&M Records, Inc. V. Napster, Inc.’ (2002) 9 Villanova Sports & Entertainment Law Journal; Joseph L Bower and Clayton M Christensen, ‘Disruptive Technologies: Catching the Wave’ [1995] Harvard Business Review, 43–53; Clayton M Christensen and Henry J Eyring, The Innovative University: Changing the DNA of Higher Education from the Inside Out (John Wiley & Sons 2011); Terry Anderson and Rory McGreal, ‘Disruptive Pedagogies and Technologies in Universities.’ (2012) 15 Educational Technology & Society, 380. 5. M.A. Maidique and R.H. Hayes, ‘The Art of High-Technology Management’ in Robert Burgelman, Clayton M Christensen and Steven Wheelwright, Strategic Management of Technology and Innovation (5th edn, McGraw-Hill 2009), 227. 6. Business managers aim to create ‘core competencies’ within their businesses – core skill sets and knowledge bases that form the rock of the firm’s capability for success. Competency-enhancing innovations are those that do not require or destroy old skill sets and knowledge within a firm. Competency-enhancing innovations merely “substitute for older technologies, yet do not render obsolete skills required to master the old technologies.” Michael L Tushman and Philip Anderson, ‘Technological Discontinuities and Organizational Environments’ [1986] Administrative science quarterly, 439–442. 7. Christensen The Innovator’s Dilemma (n 2), 10. 8. ibid., xviii. 9. Todd Haselton, ‘The Analysts Were Wrong: The IPhone X Is Now the Most Popular IPhone’ (2 May 2018) accessed 20 June 2020. Unless otherwise stated, all online sources accessed 20 June 2020. 10. Architectural innovation is defined as “innovations that change the architecture of a product without changing its components.” Rebecca M Henderson and Kim B Clark, ‘Architectural Innovation: The Reconfiguration of Existing Product Technologies and the Failure of Established Firms’ (1990) 35 Administrative Science Quarterly 9, 9–10; Clayton Christensen ‘Exploring the Limits of the Technology S-Curve. Part 1: Component Technologies’ in Robert Burgelman, Clayton M Christensen and Steven Wheelwright, Strategic Management of Technology and Innovation (5th edn, McGraw-Hill 2009) 3; Competency destroying innovations come from technological discontinuities, leaps in technology where wholly new product classes are created or a substitution for an established product is made. These are competency destroying as the skill sets and knowledge (“core competencies” of the firms) previously held become obsolete in the face of the innovation. Tushman and Anderson (n 6), 442. 11. Robert Burgelman, Clayton M Christensen and Steven Wheelwright, Strategic Management of Technology and Innovation (5th edn, McGraw-Hill 2009), 244. 12. Clayton M. Christensen, The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail (HighBridge Audio, Harvard Business School Press 2007).

16  Disruptive innovation and the l aw 13. Erwin Danneels, ‘Disruptive Technology Reconsidered: A Critique and Research Agenda’ (2004) 21 Journal of product innovation management, 246–247; Constantinos Markides, ‘Disruptive Innovation: In Need of Better Theory’ (2006) 23 Journal of Product Innovation Management, 19; Gerard J Tellis, ‘Disruptive Technology or Visionary Leadership?’ (2006) 23 Journal of Product Innovation Management, 34–35. 14. Christensen and Michael E. Raynor, The Innovator’s Solution: Creating and Sustaining Successful Growth (Harvard Business School Press 2003), 32. 15. Henderson and Clark (n 10), 9. 16. Christensen The Innovator’s Dilemma (n 2), 17. Adapted from Danneels (n 13). The inclusion of both change in market and change in performance metrics allows the inclusion of business model disruption, which has been a huge source of innovation in the 20th century. 18. This lower price point should be viewed as the price point for end consumers, not necessarily those who must put the innovation into manufacture. The end product for consumers must be cheaper to fulfil this requirement. 19. Adapted from Christensen The Innovator’s Dilemma (n 12). 20. For the difference between radical and disruptive consider Henderson and Clark (n 10), 9. 21. Christensen and Raynor (n 14), 48, Figure 2–4. 22. Tushman and Anderson (n 6), 440. 23. Burgelman et al (n 11), 2. 24. Christensen openly discusses his change in terminology in Interview with Clayton M Christensen, ‘Disruptive Innovation Explained’ (30 March 2012) ; Christensen and Raynor (n 14); Clayton M. Christensen, ‘The ongoing process of building a theory of disruption’ (2006) 23 Journal of Product Innovation Management, 39. 25. Christensen and Raynor (n 14), 49. 26. Andrew S Grove, ‘Intel Keynote Transcript’ (Academy of Management, Annual Meeting, San Diego, CA, 9 August 1998) ; Christensen, ‘The Ongoing Process of Building a Theory of Disruption’ (n 24), 43. 27. Vijay Govindarajan and Praveen K. Kopalle, ‘The Usefulness of Measuring Disruptiveness of Innovations Ex Post in Making Ex Ante Predictions’ (2006) 23 Journal of Product Innovation Management 12, 15; Christensen and Raynor (n 14), 45–46. 28. Jacob Hasselbalch, ‘Regulating Disruptive Innovations: The Policy Disruption of Electronic Cigarettes’ (GR:EEN 2014) >, 10. 29. Roger Brownsword and Karen Yeung, ‘Regulating Technologies: Tools, Targets and Thematics’ in Roger Brownsword and Karen Yeung (eds), Regulating Technologies: Legal Futures, Regulatory Frames and Technological Fixes (Hart Publishing Ltd. 2008), 7–14. 30. The best example of commentary that clearly understands disruption as defined here and by Christensen comes from Richard Susskind in his books where he not only explains the theory but then uses it to analyse legal technologies that may change the legal profession. Richard Susskind, The End of Lawyers: Rethinking the Nature of Legal Services (Oxford University Press 2010); Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press 2013).

Disruptive innovation and the l aw  17 31. ibid; Ray Worthy Campbell, ‘Rethinking Regulation and Innovation in the US Legal Services Market’ (2012) 9 NYUJL & Bus., 1; Darryl R Mountain, ‘Could New Technologies Cause Great Law Firms to Fail’ (2002) 52 Syracuse L. Rev., 1065; Darryl R Mountain, ‘Disrupting Conventional Law Firm Business Models Using Document Assembly’ (2006) 15 International Journal of Law and Information Technology, 170; Darryl R Mountain, ‘An Update and Reconsideration of Chrissy Burns’ “Online Legal Services-A Revolution That Failed?”‘ (2010) 1 European Journal of Law and Technology; Cassandra Burke Robertson, ‘Facebook Disruption: How Social Media May Transform Civil Litigation and Facilitate Access to Justice, The’ (2012) 65 Ark. L. Rev., 75. 32. Eugene Clark, ‘Looking Forward: Challenges Facing Legal Education in the 21st Century’ (2010) 3 Phoenix L. Rev., 461; Ray Worthy Campbell, ‘Law School Disruption’ (2013), 26 Geo. J. Legal Ethics, 341. 33. Lee Loevinger, ‘Science, technology and law in modern society’ (1985) 26 Jurimetrics J. 1, 5–6. 34. Mireille Hildebrandt, ‘Legal and Technological Normativity’ (2008) 12 Techné: Research in Philosophy and Technology, 169–171. 35. Richard Susskind, The End of Lawyers: Rethinking the Nature of Legal Services (Oxford University Press 2010); Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press 2013). 36. Of particular note are the collections of case law such as British and Irish Legal Information Institute http://www.bailii.org and Justis http://www. justis.com. However increasingly official databases of decided cases are being provided by judicial branches. See Irish Courts: http://www.courts.ie, United States Supreme Court http://www.supremecourt.gov. 37. Journal publishers are increasingly offering their subscriptions online, however there has also been a rise of sites that aggregate journals, such as Westlaw http://www.westlaw.com. 38. Richard Susskind, The End of Lawyers: Rethinking the Nature of Legal Services (Oxford University Press 2010), 96. 39. ibid, 108-113; Richard Susskind, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press 2013), 42. 40. For a good discussion on the struggles of Bell and his compatriots to bring acceptance and success to the telephone see Herbert Newton Casson, The History of the Telephone (2nd edn, A C McClurg & Co 1910), 24–60. 41. The Telephone Cases, 126 U.S. 1, 8 S. Ct. 778, 31 L. Ed. 863 (1888). For a comprehensive discussion on the telephone patent see Christopher Beauchamp, ‘Who Invented the Telephone?: Lawyers, Patents, and the Judgments of History’ (2010) 51 Technology and Culture 854–878; Alexander Graham Bell; Improvement in Telegraphy, US Patent No. 174465, (filed February 14, 1876, issued March 7, 1876). 42. The United Kingdom dealt with telephones originally by folding their regulation into that of the telegraph. The London Overhead Wires Act 1891 (54 & 55 Vict. c. lxxvii); The United States had similar provisions on a state by state basis, and did not federally regulate telephones until 1934 with the Communications Act of 1934, 47 U.S.C. 43. Telegraph operators were required to keep the content of messages confidential. William L Scott and Milton P Jarnagin, A Treatise upon the Law of Telegraphs: With an Appendix, Containing the General Statutory Provisions of England, Canada, the United States, and the States of the Union, upon the Subject of Telegraphs (Little, Brown & Company 1868), 118. This was extended

18  Disruptive innovation and the l aw

















to telephone operators as telephones were given the same obligations as telegraph operators. Attorney General v. The Edison Telephone Company of London ltd. (1883) LR 6 QB D244. 44. Mann-Elkins Act, 61st Congress, 2nd session, ch. 309, 36 Stat. 539, June 18, 1910. Daniel F. Spulber and Christopher S. Yoo, ‘Toward a Unified Theory of Access to Local Telephone Networks’ (2008) 61 Fed. Comm. LJ, 43–46. However it is useful to note that while at first competition was encouraged, in the US the stance was changed to that of a ‘natural monopoly’ and eventually did away with the competition aspects. Adam D. Thierer, ‘Unnatural Monopoly: Critical Moments in the Development of the Bell System Monopoly’ (1994), 14, The Cato Journal. 45. The US Communications Act of 1934 is broadly acknowledged as the beginning of US federal communications law: Ian Walden (ed), Telecommunications Law and Regulation (Oxford University Press 2012), 188. 46. Susskind The End of Lawyers (n 38); Richard Susskind Tomorrow’s Lawyers (n 39). 47. The telephone was initially introduced and sold as a business tool, rather than for personal communication. By 1891, the majority of residences with telephones were still primarily that of doctors and businessmen. Claude S Fischer, America Calling: A Social History of the Telephone to 1940 (University of California Press 1992), 41. 48. Telegraph Act 1869 (32 & 33 Vict, c. 73), s3. 49. The telegraphic monopoly was established by the Telegraph Act 1869 (32 & 33 Vict, c. 73) section 4; The Postmaster-General reacted particularly aggressively against the telephone. After acquiring the telephone monopoly as well, the Postmaster-General made it difficult for those interested in creating telephone businesses to become licensees. ‘The Development of the Telephone Law’ Glasgow Herald (Glasgow, Scotland, 23 April 1892). The Post Office also made a concerted effort to ‘blind’ the public to the telephone’s possibilities. Marlborough, ‘The Telephone and the Post Office’ (1892) 6 The New Review, 320–322. 50. Attorney General v The Edison Telephone Company of London ltd LR 6 QB D244 [1880] QB D244, VI LR. The definition of a telegraph was so broad in the Telegraph Acts that the telephone could be brought under its remit. Sidney Walter Jones, A Treatise on the Law of Telegraph and Telephone Companies: Including Electric Law (2nd edn, Vernon Law Book Company 1916), 2; ‘The Decision in the Telephone Case’ Glasgow Herald (Glasgow, Scotland, 29 December 1880); ‘The Decision in the Telephone Case’ Glasgow Herald (Glasgow, Scotland, 24 December 1880). 51. See Part 3 “Guilt by Resemblance” of Scalia’s dissent in the Supreme Court Aereo decision for an excellent discussion on how the tendency to use “lookalikes” as the basis of legal decisions can warp the law. American Broadcasting Companies et al. v. Aereo, 573, US(2014). 52. Clayton M. Christensen, Dina Wang, and Derek van Bever, ‘Consulting on the cusp of disruption’ (2013) 91 Harvard Business Review, 106–112; Maxwell Wessel and Clayton M Christensen, ‘Surviving Disruption’ (2012) 90 Harvard Business Review, 56–58. 53. Jay Paap and Ralph Katz, ‘Anticipating Disruptive Innovation’ (2004) 47 Research Technology Management 13, 15; Eileen D. Weisenbach Keller and William L. Shanklin, ‘The Perfect Storm for Disruptive Technologies’ (2005) 15 The Marketing Management Journal, 172–172. 54. Christensen The Innovator’s Dilemma (n 2), 185.

Disruptive innovation and the l aw  19 55. Paap and Katz (n 53), 14. 56. John Burrows, ‘Academics and Law Reform’ (2013) 25 New Zealand Universities Law Review, 667–680, 669. 57. For example, the telephone was ruled to be legally equivalent to the telegraph despite the fact that telegraphs and telephone operated in drastically different ways. Attorney General v. The Edison Telephone Company of London ltd. (1883) LR 6 QB D244. For a modern version of this problem see Aereo’s innovative retransmission model which worked much like a DVR in the cloud was ruled equivalent to a cable system. American Broadcasting Companies et al. v. Aereo, 573 US (2014). 58. Cory S Clements, ‘Perception and Persuasion in Legal Argumentation: Using Informal Fallacies and Cognitive Biases to Win the War of the Worlds’ [2013] BYU L. Rev., 319331. 59. For instance, the disruptive innovations of quartz batteries and digital watches were actually invented by the Swiss incumbents who were eventually supplanted by the Japanese companies who commercialised the product. Paap and Katz (n 53), 14. 60. Constantinos Markides, ‘Disruptive Innovation: In Need of Better Theory’ (2006) 23 Journal of Product Innovation Management, 19–23. See also Clayton M. Christensen, The Innovator’s Dilemma: The Revolutionary National Bestseller That Changed The Way We Do Business (First Collins Business Essentials. HarperBusiness 1997), 207. 61. Lyria Bennett Moses, ‘AGENTS OF CHANGE: How the Law ‘Copes’ with Technological Change.’ (2011) 20 Griffith Law Review, 763–765. 62. Digital Millenium Copyright Act 17 U.S.C. §, 512. 63. The United States Copyright Office, ‘Section 512 of Title 17: A Report of the Register of Copyrights’ (2020), 1. 64. ibid., 33. 65. Since the inception of the disruptive theory, it has been used to explain the downfall of firms. See Christensen The Innovator’s Dilemma (n 2), Part One: Why Great Companies Can Fail, 1–89; Joseph L Bower and Clayton M Christensen, ‘Disruptive Technologies: Catching the Wave’ [1995] Harvard Business Review, 43–53; Wessel and Christensen (n 52), 64. 66. Joined Cases 42 and 49/59 SNUPAT v High Authority [1961] ECR, 109. 67. Damian Chalmers, European Union Law: Text and Materials (4th edn, Cambridge University Press 2007), 454. 68. Mireille Hildebrandt, ‘Legal Protection By Design: Objections And Refutations.’ (2011) 5 Legisprudence: International Journal for the Study of Legislation, 238. 69. Mireille Hildebrandt, ‘Legal and Technological Normativity’ (2008) 12 Techné: Research in Philosophy and Technology, 169 and 172. 70. Stefanie A Lindquist and Frank C Cross, ‘Stability, Predictability And The Rule Of Law: Stare Decisis As Reciprocity Norm’ (2011), 1. 71. Brett M. Frischmann, ‘Economic Theory of Infrastructure and Commons Management, An’ (2005) 89 Minn. L. Rev., 917–946. 72. Xavier Greffe, ‘Artistic jobs in the digital age’ (2004) 34 The Journal of Arts Management, Law, and Society 79, 85; Deven R Desai and Gerard N Magliocca, ‘Patents, Meet Napster: 3D Printing and the Digitization of Things’ (2014) 102 Geo. LJ, 1691. 73. An early work by Christensen described the introduction of disruptive innovators in the hard disk industry as different waves, each disruptive to the incumbents and waves that came before. Joseph L Bower and Clayton M Christensen, ‘Disruptive Technologies: Catching the Wave’ [1995] Harvard Business Review, 43–47. 74. Christensen, Wang and van Bever (n 52) 112; Wessel and Christensen (n 52), 58.

Chapter 2

Technology, law, and shifting society

“[A]ny division we make between society on the one hand and scientific or technical content on the other is necessarily arbitrary.”1 Technology has always had a relationship with society. The existence of innovations affects the society in which they reside, transforming the social groups therein. Even before the transition to an information society, which has seen a significant encroachment of technology into everyday life, the advent of new technologies can be seen to alter society’s values. Where society ends and technology begins is a question that has been debated for decades. Indeed, the societal differences between the developing and developed worlds can be viewed in relation to access to technology as well as economic and cultural factors. Advances in technology fuel the changes in a society, changing priorities for users by allowing them to refocus their energies from physiological needs to more abstract desires. Social movements can drive technology advancement as surely as technology can illuminate social change.2 Whether social needs shift through expectations or merely by removing previous obstacles, technology plays a key role in the changing values of a society. Today’s innovations, like yesterday’s, have the potential to affect our lifestyles, global economy, skill sets, and social needs of society. New technologies can drive and provide opportunities for leisure, education, relationships, and personal identity.3 This is true of even the simplest of technology.

How technology changes society and societal priorities Technology, at its core, is designed to assist humans. That assistance comes in physical, mental, and sometimes even emotional ways. In a gross oversimplification, one could say technology allows us to identify new needs by relegating automatable tasks to inanimate objects. In doing so, humanity is able to concentrate on other tasks and issues, re-prioritising needs. The introduction of technology can shift societal needs or generate new values that did not exist prior to the technology’s introduction.

Technology, law, and shifting society  21

Consider how access to a well, a simple but life-changing human technological feat, can change the priorities of a village. Water is essential to human life, yet clean, safe water access has been recognised as a major difficulty for many developing countries, particularly those in Africa. Recognising that access to water is “essential for the full enjoyment of life and all human rights,”4 the United Nations, World Health Organisation, UNICEF, and other charities work to provide access to safe, local water in these areas due to the immediate impact on people’s lives by the simple addition of water technology. Water technology can be as simple as rain barrels to catch the fall of water, but water technology can also include more complex water filtration systems and pipelines to deliver water in addition to wells. The simple provision of a technology that brings clean local water has the ability to transform a village. When access to a resource as vital as water is difficult, that access becomes a major priority for those affected. In Africa, where clean water may be miles away, women and children can be forced to spend hours a day walking to a clean water supply. The need for water to survive must be met, despite potential dangers and difficulties. This lack of access to clean water is felt in illness and disease, which can rob a village of both work and school days. While the effectiveness of water technologies depends on community management and behavioural changes,5 there is still an effect through the introduction of water technology simply by giving back the hours spent obtaining water. Villagers can eliminate this travel time, allowing new opportunities – such as the time for education, food production, or industry. The needs of an individual and community change with the addition of technology. Where once a village’s greatest needs may have been about survival, as evidenced by their efforts in sourcing water, the provision of water technology changes their priorities. When sourcing clean water no longer becomes an all-consuming priority, villagers are able to concentrate on other tasks. Children may stay longer in classes and workers spend less time off sick due to water-borne diseases. Alongside the benefits of better health due to easier and safer sanitation, water technology can provide opportunities for agriculture and rural development. Water technology allows their needs to shift from one based on the physiological need of survival to the betterment of their lives.6 Taking this principle further, we can mould a society through the provision, or deprivation, of technology. Technology as a sociological tool has been suggested before.7 Latour argues that social constructions, including social norms and needs, always involve both human and non-human components.8 Associations between social actions and innovations mould behaviour until the chains of interaction lead us to predictable behaviour, a social norm.9 This predictable behaviour, the social norm, is predicated on the use of a technology. Social norms, those pesky social constructions that

22  Technology, law, and shifting society

can help define a society, are as much reliant on the technology that exists as the values that are part of a society. The existence of certain technologies in a society allows a frame of reference for that society to be developed. This frame of reference includes the social norms of the society which can be used to extrapolate what social needs are prevalent. The social norm of personal hygiene, which not only includes personal grooming but the consistent use of washing hands after contact with potential sources of infection, prevalent in many developed cultures today, is not a social norm for the villages in Africa where water technology is not present.10 As discussed, water technology enables the use of water for more than mere consumption. The value on water is then decreased, as it no longer requires significant effort to obtain. The step beyond is for water to become prevalent, at which point it is no longer a scarcity and can be used to fulfil new social needs, such as hygiene practices to prevent the spread of disease. It is only through access to water technology that developing countries can begin to value such practices enough for them to become a recognisable social norm.11 These shifting needs can be seen in the opposite direction as well, with technology adapting to new social norms. Technology creators adapt technologies to reflect a new social norm, and the next generations of innovations begin where the current technology ends. Not all social norms that come about from technological advances are welcome. With peer-to-peer (P2P) technologies, many users became accustomed to using that technology, so much so that a “psychological norm against copyright law”12 arose despite its illegality. Such norms can be difficult to curb once established, which may put a greater duty on legislators to evaluate technology and act early, thereby curbing such behaviour before it becomes well established. Creative destruction, disruption, and social needs In many ways, this cyclical replacement of technology exemplifies Joseph Schumpeter’s “creative destruction.” Sometimes referred to as the “gale of creative destruction,”13 Schumpeter described the innovative process as cyclical waves that lead to the rise and troughs of recessions as technological change results in the destruction of what existed before. The nature of innovation is that the creation of new ideas destroys the monopoly rents of previous inventions, resulting in the potential decline of a market leader and refreshing a given industry.14 The parallels of this concept with disruptive innovation are great. Disruptive innovations, whose disruptiveness is based on their impact on a market as opposed to an inherent property of the technology itself, seem ideal in demonstrating creative destruction in practice, providing the impetus for new emerging markets or changes in existing ones. Schumpeter’s

Technology, law, and shifting society  23

work may explain the environment within which firms operate, but disruptive innovation describes the individual moments of creative destruction. This cycle of replacement technology can be seen in the communications technologies of the 1800s. Consider the impact of the introduction of the telegraph and telephone. Prior to the introduction of the telegraph, the pace of communication was slow with long-distance communication only possibly by human transfer by horse, boat, or train.15 The primary communication technology was human transport, romanticised in the Pony Express whose fastest time for transcontinental intelligence across the United States was ten days.16 The telegraph was a clear upgrade. Both optical and electrical telegraphs grew out of a genuine social desire to communicate over distances. As one treatise on the telegraph noted, “prompt and speedy communication between different localities is one of the most urgent wants of the present age.”17 Optical telegraphs, which used visual signals to pass messages from station to station, were invented in 1791, providing faster travel times for messages than the postal services; they were limited in use due to cost and issues with operation during the dark, fog, or other bad weather.18 Such was the social demand for long-distance communication, unhampered by these drawbacks, that various inventors worked to improve telegraphs, ultimately arriving on the electrical telegraph in 1837.19 Like many disruptive innovations, the electric telegraph wasn’t immediately successful. It took some education of the public before it was embraced wholeheartedly; however, the support from then on was fierce.20 In 1852, Scientific American announced that “no invention of the modern times has extended its influence so rapidly as that of the electric telegraph.”21 The social need exemplified in the telegraph’s influence existed regardless of circumstances and irrespective of status, with both private and public bodies utilising the service.22 This social desire was particularly felt in large countries, such as the United States and Australia, where distances provided an obstacle to quick communication. While it took years to build, almost immediately upon the completion of a transcontinental electric telegraph line, the Pony Express collapsed. The telegraph was a culmination of social need and technological innovation, addressing the needs of many. As society embraces a new technology, the social norms of the society shift in reaction to that technology. The existence of the telegraph and acceptance of telegraphic capabilities made fast communication the new social norm. Users of the telegraph became accustomed to the workings of the technology, and the speed of communication possible. While there was still sufficient social impetus to justify the extension of telegraph services, the social need that brought about the invention of the telegraph shifted. Eventually, the one-sided nature of the information passed along proved insufficient to the social needs of the day. The Victorians had become accustomed to the telegraph, and their needs outgrew what technology

24  Technology, law, and shifting society

could provide. They still had a desire to communicate, but they wanted it faster, more reliable, with greater options. The next major innovation was the telephone, which moved from one-way communication with a delay to instant two-way communication. The telephone was intended to be an improvement on telegraphy, which began by investigating whether it was possible to improve upon existing telegraphic devices.23 The telegraph reigned supreme until 1926 by which time long-­ distance telephone calls overtook the number of telegrams sent in Britain.24 Whether by design or happy accident, the telephone fit the new social needs of the day. In introducing the telephone, the way society valued the transfer of information changed again. While the telegraph proved that there was a viable market for fast transmission of information over long distances, the telephone proved that this social need to connect extended even over shorter distances.25 Additionally, the telephone became the first communication technology to enter the home of the average person, changing the divisions between private, familial lives, and the rest of the community.26 This, in turn, changed social norms, blurring class lines and challenging the formal social rules of the day.27 We see, in this, the cyclical rise and fall of innovations heralded by Schumpeter’s gale of creative destruction as well as that of disruptive innovations. The rise and fall of the telegraph and telephone arose from the social needs of the day, and those needs continued to feed innovation. From markets to norms Technology affects the needs and desires of the populace in many ways. A simple example is demonstrable in changing customer expectations. Advances in technology can create a shift in customer expectations, driving changes in behaviour. As technology becomes less an obstacle and more an expectation for customers, the benefits of technological advances become more accessible to larger segments of society, particularly when it becomes cheaper and more widespread. This shift in expectations can result in a shift in market values. When customers begin to expect a level of technology commensurate with their experience in one industry, it places pressure to adopt technology in other industries. This can be illustrated in a more modern example through the adoption of online services by the banking industry. Where the standard banking interaction once involved a trip to the physical location of the bank, the advent of online retailing changed customer expectations. Online retailing has led customers to value convenience and access on their own terms in ways that the traditional banking business model was unable to provide. Banking managers, like most incumbents, wanted more evidence of success than merely the enthusiasm for new technology before

Technology, law, and shifting society  25

shifting their business in response to the information society. Early, purely online banks failed to make a significant impact on the financial sector; however, online banking services such as PayPal arose, providing the flexibilities and convenience of the online retail experience.28 Despite the initial customer security fears, online payment services became acceptable and are now the new normal. Eventually, the weight of customer desires for online access, customer trust in online tools built through non-banking applications, and greater flexibility has led to widespread adoption of online services by the industry itself. Most banks now provide more than just useful information on their websites, allowing transactions, loan quotes, credit applications, and even providing their own apps for smart devices. Each of the inventions discussed above responded to social needs, and the societies and social needs then responded to them in turn. “Standing on the shoulders of giants” has been a constant source of innovation and improvements throughout history. However, innovations that improve upon existing technologies do not merely stand on the scientific principles learned through prior inventions and discoveries but respond to the new social norms created by those innovations. Building on what has come before, technologies cannibalise the market share of earlier technologies as well as using their scientific know-how in creation.29 This cyclical nature of technology is one that repeats through history and parallels the changes in society wrought by changing social norms. The necessities of today were the luxuries of the rich only a few decades ago. New social norms generate new social needs, and the cycle repeats itself. Key concept: disruptive innovations uncover new or unknown social needs What we see with disruptive innovations is that they are uniquely placed to uncover new social needs. Disruptive technologies are peculiarly well suited to uncovering and exploiting these new needs as they are first successful with customers whose needs were previously not being met. One of the challenges with disruptive innovations is that the market for them may not exist until they are created. Not only do disruptive innovations often create new markets at the low end of a market, but they are not usable by current customers due to their worse performance. As Christensen commented, markets that do not exist cannot be analysed, resulting in “unknowable” markets and market applications.30 One of the consequences of this is the impossibility of studying or anticipating the market or social needs that disruptive innovation meets prior to the innovation’s creation. Therefore, neither the social needs that are met by disruptive innovation nor the social needs that a disruptive innovation may create are known prior to the introduction of the innovation. It is only after a disruptive innovation has identified and created the market for a new social norm that it can be

26  Technology, law, and shifting society

understood. This makes disruptive innovations peculiarly placed to identify social needs. The ability to survive and thrive in the gaps of the market demonstrates that disruptive innovations excel at identifying customer desires that current incumbents are failing to cater to. By changing the market parameters or creating new markets, the disruptive innovation taps into needs that had been ignored or hidden. This makes disruptive technologies remarkably useful in charting shifts in societal needs and values. If disruptive technologies can uncover the shifts in societal and social needs, how does this help the law-maker? If law reform consists of analysing current law, how it was created, how effective it is, and making suggestions for improvement, then to accurately source potential improvements, an understanding of the society and players surrounding that law is necessary. By using the disruptive paradigm to uncover shifts in the social fabric, law-makers can be certain of what the social needs in a current society actually are, through the adoption of disruptive innovations. From there, the calls of concerned parties can be put in perspective, allowing law reformers to adequately understand the current state of society before embarking on changes, updates, or reforms. By using disruptive innovations and touchstones of change, law reformers can accurately assess changes in social values even where competing interests are present. This may also be useful in finding a potentially silent majority’s position.

Law, society, and technology The intersections between technology and society discussed above are inextricably linked with the law. Latour asserts that one cannot understand the path an innovation takes without understanding the resistance put up by the various actors it encounters.31 Certainly, part of that resistance can be legal barriers. Innovation, in general, can be difficult. Beyond disruptive innovation, innovation itself has proven difficult to quantify and identify. Even once an idea is found, bringing that innovation to market can be fraught with challenges. First-to-market innovators regularly lament that competitors are able to capitalise on their innovation better without protections such as those obtained from intellectual property rights.32 Firms bringing new innovations to market consistently encounter the reluctance of users to adopt new technologies.33 All of these difficulties are only magnified if legal barriers exist to the implementation or introduction of a technology. With governments espousing innovation-friendly policies, it is important that anyone making law contemplates how law and technology are linked. Like Latour’s social programs created through technology,34 social norms can be viewed as constraints within a community that either induce

Technology, law, and shifting society  27

or enforce certain behaviours. This is very similar to the effects that law has on a society. In essence, it can be argued that laws are tools used to set social norms. Laws create social norms through guiding individuals to certain behaviours,35 although the norms created this way require a certain level of compliance by individuals. Societies, and the laws within them, should be created in such a way that the populace can justify following their guidance. In doing so, law creates its own social programs for humans to follow, by emphasizing the social values through behavioural/social norms. The discussion of laws and social values can be both circuitous and circular. Legal change inevitably follows widespread social change,36 just as changing law can produce social and societal shifts. Social values or trends are not the same as political fads but are the deeper, more significant movements of a society through time. We can see these social values in our laws today. For example, restrictions on a company’s ability to pollute the atmosphere directly demonstrate the value a society places upon the environment, clean air, and the health of their people.37 The social values of the society are placed above the rights of a company to affect the environment. In this way, laws can reflect social values. These types of regulation abound with their basis found in a common social goal for that society. Shifting social norms can direct change in the law. This can be seen in Lionel Bently’s discussion of the changes to copyright in news stories in Australia that occurred on foot of the arrival of an international telegraph line. Bently details the concerns of newspaper moguls in 1870s Australia who feared that not only would international news be costly, but it would also prove tempting and easy to appropriate by rival newspapers.38 The drive for the submarine cable that allowed international news came from a “virtually insatiable appetite”39 for international news by the Australian public. That social desire not only drove the creation of the submarine cable to connect the colony, but it also created new needs for newspaper moguls. Was there a real need for copyright in news stories outside of the international telegraphs? It is clear that the Australian newspapers thought so, as petitions for copyright in news stories began even before completion of the submarine cable.40 In this way, the perceived social need for copyright was pushed into legal reality. One indication that social values are already inextricably linked to the law is that where social needs are not met through legislation, they become the subject of litigation, demanding the judiciary find a solution for the lack of legislation.41 Instead of providing the protections, balances, or guidance that is needed, legislators leave gaps in the law that courts may be forced to adjudicate on. Courts then find themselves forced to deal with issues that legislators might defer as lower priority, leaving them in the unenviable position of having to decide on issues without the freedom to set policy when none exists. The need to resort to the courts in the absence of legislation can be considered a market failure by the law.

28  Technology, law, and shifting society

The opposite is perhaps easier to demonstrate. Law has been used to direct social change in all modern societies, irrespective of their development or governing ethos.42 While the law is usually used in conjunction with other policy tools,43 using law to direct social change nevertheless plays a role in shifting societal values. One cannot downplay the role that law has had in such cases as Brown v Board of Education44 or the passing of the Civil Rights Act 196445 in the acceptance of racial diversity. One of the more recent directed social changes through law may be the acceptance of samesex marriage, which has seen courts reject discriminatory legislation.46 The law can, and has, led on a number of human rights issues, each pushing the acceptable social values towards a more inclusive goal. While the influence of law to mould society with human rights is easy to see, it can also be seen with technology. The impact of law on science and technology is perhaps deeper than the reverse. One example would be the growth of the “chemical weapon taboo”47 after international laws outlawed their usage. After the usage of lethal gas in battlefields of World War I, public outcry resulted in the Geneva Protocol of 1925.48 This piece of international politics became a focal point for an international social norm that has lasted through the World War II and the various conflicts since. Following the legal rejection of the acceptance of chemical warfare, its usage has become a lasting stigma in the minds of the populace, and an accepted norm in the international community.49 This has further guided the creation of future weapons, with an almost self-imposed ban on chemical weapon research. From the rejection of chemical warfare technology in law, the social norm emerged. It is easier to demonstrate the effect of the law on society than to demonstrate the effect of the law on technology. Courts play a role in directing scientific and technological innovation, shaping the resultant technology and our relationship to it.50 The relationship among society, technology, and the law is complicated; however, there are similarities between law and technology in the way they impact on society. One such similarity is the way law and technology both affect the society in guiding behaviour. Technology and law as behavioural regulators In traditional policy debates, technology and behaviour have been treated as separate, however, there are compelling reasons to consider them as a part of a holistic whole. Both law and technology can be seen to affect an individual’s behaviour. The link between the law and behaviour is strong, with Koops defining regulation in terms of “controlling human or societal behaviour by rules or restrictions.”51 Klang discusses regulation as the “exercise of power within social interaction.”52 Guiding behaviour through regulation or law is not just within the possible outcomes of legal provisions but one of the reasons for law itself: to regulate behaviour through deterrence or encouragement.

Technology, law, and shifting society  29

If law shifts human conduct from the optional to the obligatory, then where behavioural changes are achieved through technology coupled with policy goals, the directed change in behaviour can resemble the effects of law,53 meaning it resembles the control of behaviour. Technology has clear norm-creating potential by providing cues and conditioning responses from users. Few would say that their smartphone had trained them to respond to their ringtone, preferring to say they had learned to respond to that trigger themselves. However, from a certain point of view, it is the smartphone training them. If the phone were to change its tone or the length of the ringtone, we would adapt to that stimuli. As such, technology’s influence over society can be both hugely impactful and difficult to notice. Some norms created through technology have been created by design. Technology is already intentionally used to regulate human behaviour. This can be perhaps most clearly seen in the discussions on techno-regulation, where outcomes are determined by building boundaries in the technologies themselves.54 Where technology is designed to force an outcome, it behaves much like law, obligating users to follow a certain path.55 Failure to account for user behavioural patterns can result in the failure of regulations as user behaviour and technological change create social norms that are not reflected in law.56 Similarly, it is difficult to change behaviour without harnessing the persuasive effect of technology design.57 Where friction lies, whether due to norms or technology, we see difficulties in enforcement of law. We saw this in the difficulties surrounding the adoption of the Copyright Directive.58 The stability a legal system can bring to a society is undermined where control is wrested against the wishes of the populace.59 Key concept: disruptive technologies can highlight laws that require reform As disruptive innovations can uncover new or formerly unknown shifts in social needs, and, by extrapolation, societal needs, they become an ideal focus for identifying current tensions between the legal regime and underlying social norms. By identifying shifts in societal values, disruptive innovations are in a unique position to offer insight into which laws are in need of reform. This tension is caused when the needs and norms of the populace do not match the behaviour that is induced/moulded by the law. The social shifts heralded by disruptive innovations are notoriously difficult to identify,60 especially without the innovation’s success. The difficulty in predicting and understanding previously unidentified customer/ social needs even without disruption is a consistent challenge. One can infer the values and priorities of a society by studying the technology it produces that is adopted by a large segment of the populace. While adoption rates of technology are indicative, it is rare that everyone in a social

30  Technology, law, and shifting society

system will adopt a specific technology. However, it is logical that the greater the rate of adoption, the more likely there is an acceptance of a technology within a society. This may demonstrate a common social need that was not previously met. Disruptive innovations then provide guidance of where to seek new social norms by indicating an acceptance by a percentage of the populace. This is particularly useful to law-makers as it becomes more imperative to consider regulatory options as a technology becomes widespread.61 Importantly, without considering disruptive innovations, there may not be another way to identify these social needs with any degree of certainty. Disruptive innovation changes markets and, in doing so, affects societal change. Disruption may present difficulties for markets, businesses, and society as they come to grips with new realities. These difficulties can expose “previously hidden problems or cause old problems to intensify.”62 There is nothing quite like the crucible of change to display the potential inadequacies of a system, and disruption is no different. Therefore, it is more likely that difficulties with existing laws will be seen when they encounter disruptive innovations.

Why disruptive innovation? If technology, society, and law are as intertwined as argued, are disruptive technologies so different to require alternative regulatory and law reform methods and processes? Why should disruptive innovations be singled out as the touchstone technologies for law reform? One reason disruptive innovations are so different is that the natural inclination of any incumbent is to discount disruptive innovations until they are forced to act.63 Incumbents often presume a disruptive innovation is a passing fad, ignoring it until it is competing directly or threatening their position in the market. This is more likely to result in disruption, an option that is not beneficial to the law. By utilising the disruptive theory, law-makers may be able to avoid the pitfalls inherent in incumbent culture and thinking. We must also consider the cultural pressures of a society. Culture plays a role in our thinking, both societally and within individual segments. The development of corporate and legal culture has led to the world we now live in, but what of the possibilities that were omitted because of that culture? Our inability to see potential disruptive innovations comes as much from our cultural thinking as it does from the innovations themselves. There can be a tendency to miss the changes in the basic problems surrounding our society or disregarding the values that may be particular to a specific place and time.64 More pertinently, the proverbial hammer to which all solutions look like a nail makes it difficult to think beyond the borders of the culture we exist within.

Technology, law, and shifting society  31

Cultural hammers and nails Culturally, most businesses are not in a position to adequately deal with disruptive innovation when it occurs.65 One concern in understanding disruptive innovations is that traditional business management thinking has valid and understandable reasons for preventing the acceptance and birth of disruptive innovations.66 A disruptive innovation cannot be presented in a traditional business pitch with expected costs, profits, and estimated customer base projections. This presents business managers and financiers with valid concerns and reasons to ignore a disruptive innovation in favour of a traditional sustaining innovation where costs, customer base, and expected profits can be easily projected. Disruptive innovations often present as illogical options that can paralyse a firm.67 The rational option when presented with the largely unknown disruptive innovation and the easily understood sustaining innovation is to follow the option that guarantees greater success, the sustaining option. Christensen even goes so far as to call this natural tendency of industry leaders to respond defensively when faced with disruption “survival instincts” that are eventually overwhelmed by the benefits the disruptive innovation brings to consumers.68 However, disruptive innovations have difficulty finding support in management for other reasons as well. Put bluntly, a disruptive innovation’s potential for success is consistently underestimated.69 This is not new to disruptive technologies of today. When the then-market leader in telegraphs was offered the patent for the telephone, Western Union refused, dismissing the telephone to nothing more than an “electric toy.”70 Can the same thinking affect legal minds presented with disruptive ideas? Jessica Litman poignantly noted that, in the copyright community, both the institutional and legal structure make it difficult to avoid “foolish approaches to new technology.”71 The same could be said for the legal community at large, but especially where disruptive innovations are concerned. To date, lawyers have approached disruptive innovations like a house redecorating: “Science and technology have partially redecorated the house of law, and have changed some of the furniture; but the structure and its foundations remain untouched.”72 The thinking habits of how judges and lawyers approach the law and its relationship with technology has been hardly impacted by the changes in technological change over time. Lawyers are taught to think of solutions that fit within the box and they are very good at doing so. Finding creative solutions that abide by the letter of the law in a manner that allows for different outcomes is at the core of the profession. However, the ability to find new ways of shoe-horning ideas within the current framework is only useful as long as the framework operates the same. Change the rules of the game and previous strategies may crumble. This requirement for a stable framework may make lawyers

32  Technology, law, and shifting society

particularly prone to misidentifying disruptive innovations in much the same way that traditional business managers do. Institutionally, the legal community is ill-placed to either notice or react to changes in society wrought by new technology. It has been argued that the law is consistently the tortoise to technology’s hare, and the legal profession seems to lag behind in the adoption of new technologies.73 Beyond the simple issue of technology adoption, the cultural risk-aversion that can cause difficulties for businesses faced with disruptive innovations can also affect law firms. One reason that rational risk-aversion behaviour is problematic with these innovations is that disruptive innovations require a certain amount of learning to be done by new customers and consumers.74 The applications and properties that make disruptive innovations a success are often hidden by their properties that seem so similar to items customers already know. Remarkably, the usefulness of the telephone was not immediately apparent to those who viewed it. It was viewed as a nothing more than a toy and there are even reports of disgust at the idea of sending their words over a wire.75 The utility of having everyone a quick phone call away was not immediately apparent to the people of the 1870s. However, once they realised how useful the telephone could be, it became a success. This is a classic example of the pattern of a disruptive innovation. Part of the reason that disruptive technologies take time to rise to prominence is this need to educate the customer base. This makes it difficult for those who are studying disruptive innovations to see the upcoming changes that might be wrought by such a technology. Therefore, a serious challenge for legislators and law reformers is the ability to identify disruptive innovations as potentially disruptive. By ignoring the potential side effects of disruptive innovations, we are creating a space for disruption to occur to the law itself. Part of this issue may be mitigated by the fact that legislators and law reformers have the luxury of time. Unlike business and innovation thinkers who seek to identify new potential disruptive innovations before competitors, legislators do not have to immediately act on the introduction of a new technology. Technology adoption can be uncertain, and advice to business managers on managing disruptive innovations has included such pithy suggestions as “be patient”76 until the market resonates with a new innovation.77 This can be difficult for business managers with financial commitments and investors demanding a return; however, it is good advice for the legislator who is using the disruptive paradigm. Key concept: disruptive innovations require careful, cautious management by law reformers If disruption is coming, then law reformers must be vigilant and proactive, which is the advice given to business managers. However, they need not act as swiftly as business managers. The timing of legislation or law reform for

Technology, law, and shifting society  33

disruptive technologies is complicated but vital. It is likely that disruption will spur legislation in related, but unforeseen, areas. This can be seen in the legislative approach to the telephone. Our earlier example of the telephone once again proves fruitful in demonstrating this. The telephone did not generate legislation quickly in the United Kingdom; however, it was brought under existing telegraph legislation that provided for the creation of infrastructure such as poles and lines within its first few years.78 The need for such infrastructure may have been foreseeable as similar legislative efforts had occurred with the telegraph;79 however, legislation on the safety and establishment of a system to regulate overhead lines certainly was not. By the end of the nineteenth century, larger cities such as New York and London suffered from darkened skies from the proliferation of overhead telephone wires, accompanied by regular injuries due to falling wires (Figure 2.1).80 There was no central system for those wires and legislation was required to bring order and peace to the streets.82 One of the consistent trends in technology-related legislation is that it results from reactionary thinking and the political need to be seen to “do something.”83 Certainly, this was present with the telephone wires where legislation was used to solve the overhead wires crisis. The decision of when to legislate is crucial when dealing with disruptive technologies, far more so than traditional technologies due to the sometimes

Figure 2.1  Broadway and John Street, New York, in 1890, showing the density of overhead wires.81

34  Technology, law, and shifting society

long time-frame needed to fully realise a disruptive technology’s full implications. Not only do disruptive innovations take time to effect the market, but the question of precisely when does disruption occur still exists.84 Therefore, legislative action should not be taken too early in a disruptive innovation’s cycle as all societal shifts may not be identifiable. However, supportive measures, such as providing the basis for creating infrastructure, can be necessary for the success of a technology and should not be delayed simply because a technology may be disruptive. What successful disruptive innovations consistently provide is behaviourally compatible products while engaging broader audiences, the two factors key to maximising the adoption of new technologies.85 Waiting for a disruptive innovation to finish its disruptive period and become widely adopted may be a viable strategy for law reform, as it is only after this period that the market implications and, therefore, the social shifts underlying the innovation’s success can be fully grasped. Many innovations that could significantly improve on existing technology are never adopted, sometimes due to the entrenched position of customers.86 Without waiting for a disruptive innovation to achieve at least a marginal success, the social implications may continue to be unidentifiable.

Signal to noise It is all very well understanding the links between technology, society, and law, but how does that help the law reformer? Indeed, why would using technologies, any technology, as a framework for law reform be useful? The possibility of using disruptive innovations as a way to tap into the social changes happening in society, a signal through the noise, is one way to provide an answer to an age-old problem – the difficulty with ensuring that all parties in a democracy are heard and represented. If balanced reform is the goal, then it is necessary to consider the varying perspectives of both group interests and individuals. The law has long been used as a societal tool, using legislation and court decisions to shape the way society runs. It has been suggested that legislation is unable to respond to rapid social change in part due to the difficulties in organising group interests to pressure for change.87 If positive law is almost unnecessary where there is already agreement,88 then where disagreement occurs, a full balancing of all interests would be desirable. Implicit in this is the acknowledgement that the role of lawyers in law reform is only part of how law is reformed or created. Burrows argues that law reform must involve more individuals and interests than simply lawyers.89 While lawyers have important roles to play in drafting legislation, their role in creating law is bounded by politics, policy, and practical considerations. Beyond the need for political will and desire for reform,

Technology, law, and shifting society  35

money, parliamentary time, and the effect of current events can create challenges for law reform to occur.90 Identifying policy may be key and should involve non-lawyers, particularly in issues that impinge on social issues.91 Understanding the interests and influences outside of simply legal matters is vital for effective legal drafting, a part of which may be understanding technological and social shifts. This is an especially important concern when considering technology as there are powerful groups that have vested interests in the success or failure of many of today’s new innovations. The money brought by technology lobby groups and special interest groups is vast and should not be underestimated, which brings questions of representation to the fore. Democratic inclusion requires not only the participation of voters, but that there is some determination of what the popular view on policies is. Efforts to be inclusive of the populace in policy making have been made, partially through the use of public consultations.92 However, questions also exist concerning the effectiveness of those public consultations, and it continues to be a “crucial, yet deeply problematic process.”93 With a rise in requests for input, but no significant outputs coming from such consultations, the usefulness of such efforts can easily be questioned. Additionally, such consultations are generally replied to by parties who have an interest in the questions at hand, leaving silent a majority whose voices may not be mentioned at all. There are real questions as to the continued democratic input into legal measures, with international laws and treaties, such as the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership, being negotiated without democratically elected representatives.94 The pressures created by outside forces or minorities have the potential to override the democratic will of the majority. The difficulty presented with both special interest and non-democratically elected negotiators is that there is a danger that the will of the majority may be missing or under-­ represented. Using disruptive innovations as ways of viewing societal shifts can prove helpful for law reformers in determining silent swathes of the populace. Through our discussions of law, technology, and society there comes a common thread – that of the circularity of technological innovation and social shifts. If disruptive innovations have the potential to display the social shifts in society, then they form an ideal way of differentiating useful technologies. By using disruptive innovations as touchstone technologies, law-makers can ensure the input of social norms and changes are reflected in their laws. In doing so, laws can better reflect not just the current society, but the direction that society is moving. In acknowledging the linkages between technology, society, and law, law-makers can better create laws that reflect the values of a particular society.

36  Technology, law, and shifting society

Notes











1. Bruno Latour, ‘Technology Is Society Made Durable’ (1990) 38 The Sociological Review, 103–105. 2. Michel Callon, ‘Society in the Making: The Study of Technology as a Tool for Sociological Analysis,’ The Social Construction of Technological Systems: New Directions in the Sociology and History of Technology (MIT Press 1987). 3. J Wajcman, ‘Addressing Technological Change: The Challenge to Social Theory’ (2002) 50 Current Sociology, 347–347. 4. UNGA Res 64/292 ‘The human right to water and sanitation’ (3 August 2010) Doc A/RES/64/292, 2. See also Goal 6 in the UN’s Sustainable Development Agenda. UNGA Res 70/1 ‘Transforming our world: the 2030 Agenda for Sustainable Development’ (25 September 2015) UN Doc A/70/L.1. 5. Red Cross, ‘Water and Sanitation Global Momentum’ (International Federation of Red Cross and Red Crescent Societies) accessed 20 June 2020. Unless otherwise stated, all online sources accessed 20 June 2020. 6. This is a prime example of Maslow’s hierarchy of needs. When an individual no longer needs to seek survival, then their focus changes to a new need or desire. See Abraham H Maslow, ‘A Theory of Human Motivation.’ (1943) 50 Psychological Review, 370–376. 7. Callon (n 2) 83. 8. Latour (n 1) 116. 9. ibid 103. 10. VA Curtis, LO Danquah, and RV Aunger, ‘Planned, Motivated and Habitual Hygiene Behaviour: An Eleven Country Review’ (2009) 24 Health Education Research, 655–655. 11. ibid. There is still some debate to the full uptake and social normalisation of washing hands with soap, however general personal grooming hygiene has been valued for some time. 12. Kevin P Siu, ‘Technological Neutrality: Toward Copyright Convergence in the Digital Age’ (2013) 71 University of Toronto Faculty of Law Review, 76–101. 13. Often shortened to simply ‘creative destruction’, the full term ‘gale of creative destruction’ comes from Joseph A Schumpeter, Capitalism, Socialism and Democracy (Fifth, Routledge 1939), 84. 14. Philippe Aghion and Peter Howitt, ‘A Model of Growth Through Creative Destruction’ (1992) 60 Econometrica 323, 331; James M Utterback and Happy J Acee, ‘Disruptive Technologies: An Expanded View’ (2005) 9 International Journal of Innovation Management, 1–2. 15. Tom Standage, The Victorian Internet: The Remarkable Story of the Telegraph and the Nineteenth Century’s On-line Pioneers (Berkeley Books 1998), 2. 16. Lewis Coe, The Telegraph: A History of Morse’s Invention and Its Predecessors in the United States (McFarland 2003) 38; Anton A Huurdeman, The Worldwide History of Telecommunications (John Wiley & Sons 2003), 99. 17. William L Scott and Milton P Jarnagin, A Treatise upon the Law of Telegraphs: With an Appendix, Containing the General Statutory Provisions of England, Canada, the United States, and the States of the Union, upon the Subject of Telegraphs (Little, Brown & Company 1868), 115. 18. Standage (n 15) 21; Ken Beauchamp, History of Telegraphy (IET 2001), 4. 19. Samuel Morse, William Fothergill Cooke, and Professor Charles Wheatstone invented electrical telegraphs simultaneously in different jurisdictions in the same year.

Technology, law, and shifting society  37 20. Standage (n 15) Chapter 3 ‘Electric Skeptics’ 41–56. 21. ‘Progress of the Electric Telegraph.’ (1852) 8 Scientific American, 25–26. 22. William L Scott and Milton P Jarnagin, A Treatise upon the Law of Telegraphs: With an Appendix, Containing the General Statutory Provisions of England, Canada, the United States, and the States of the Union, upon the Subject of Telegraphs (Little, Brown & Company 1868), 115. 23. Bell’s patent was even titled ‘Improvement in Telegraphy.’ Alexander Graham Bell; Improvement in Telegraphy, US Patent No. 174465, (filed February 14, 1876, issued March 7, 1876). While it was not an improvement in telegraphy, this was how Bell was “obliged” to describe it as such to the patent office. Herbert Newton Casson, The History of the Telephone (2nd edn, A. C. McClurg & Co 1910), 33. 24. Brian R Mitchell, British Historical Statistics (CUP Archive 1988), 567. 25. ‘Sooner than Expected the Telephone Has Been Applied to Actual Business Purposes, and Is Now Advertised for All Who May Choose to Buy.’ Boston Daily Advertiser (Boston, MA, 23 May 1877). 26. Carolyn Marvin, When Old Technologies Were New: Thinking About Electric Communication in the Late Nineteenth Century (first. Oxford University Press 1988), 6. 27. ibid 89–90. 28. Established as Confinity in 1998, by 2001 PayPal changed its name, focusing first on the American market with the provision of a “digital wallet” and becoming available in euros and pounds in late 2002. With the inclusion of a PayPal payment option on eBay UK, PayPal’s revenue reached $1.4 billion worldwide in 2004. See https://www.PayPal-media.com/history. PayPal has continued to lead business in digital wallets since its inception; Tero Pikkarainen and others, ‘Consumer Acceptance of Online Banking: An Extension of the Technology Acceptance Model’ (2004) 14 Internet research, 224–225. 29. Paul Vlaar, Paul De Vries and Mattijs Willenborg, ‘Why Incumbents Struggle to Extract Value from New Strategic Options: Case of the European Airline Industry’ (2005) 23 European Management Journal, 154–156. 30. Clayton M Christensen, The Innovator’s Dilemma: The Revolutionary National Bestseller that Changed the Way We Do Business (First Collins Business Essentials, HarperBusiness 1997) 165. 31. Latour (n 1), 121. 32. David J Teece, ‘Profiting from technological innovation: Implications for integration, collaboration, licensing and public policy’ (1986) 15 Research Policy, 285–285. 33. John T Gourville, ‘Eager Sellers and Stony Buyers: Understanding the Psychology of New-Product Adoption’ (2006) 84 Harvard Business Review, 98–106. 34. Latour (n 1), 103. 35. Mireille Hildebrandt, ‘Legal and Technological Normativity’ (2008) 12 Techné: Research in Philosophy and Technology, 169–183, 173. 36. Wolfgang Friedmann, Law in a Changing Society (University of California Press 1959) 25. 37. Lawrence Lessig, Code: Version 2.0 (Basic Books 2006), 5. 38. Lionel Bently, ‘Copyright and the Victorian Internet: Telegraphic Property Laws in Colonial Australia’ (2004) 38 Loy. LAL Rev., 71,74–75. 39. Overland telegraph cables ran across the European and Asian continents, winding its way to Indonesia. A cable that connected Java and Australia of necessity could not be built overland, and so a submarine cable was necessary. Bently (n 39), 75–78.

38  Technology, law, and shifting society 40. ibid., 77. 41. Lee Loevinger, ‘Science, Technology and Law in Modern Society’ (1985) 26 Jurimetrics J. 1, 16. 42. Yehezkel Dror, ‘Law as a Tool of Directed Social Change’ in Stuart S Nagel (ed), Law and Social Change (Books on Demand 1974), 75. 43. ibid., 76. 44. 347 U.S., 483 (1954). 45. Pub.L., 78 Stat. 241, enacted July 2, 1964, 88–352. 46. United States v. Windsor, 570 U.S. (2013). 47. Richard Price, ‘A Genealogy of the Chemical Weapons Taboo’ (1995) 49 International Organization, 73–73. 48. Steven Pinker, The Better Angels of Our Nature: The Decline of Violence in History and Its Causes (Penguin UK 2011). 49. Richard MacKay Price, The Chemical Weapons Taboo (Cornell University Press 1997), 165. 50. Alex Faulkner, Bettina Lange and Christopher Lawless, ‘Introduction: Material Worlds: Intersections of Law, Science, Technology, and Society’ (2012) 29 Journal of Law and Society, 1–5. 51. EJ Koops and others, Starting Points for ICT Regulation; Deconstructing Prevalent Policy One-Liners (TMC Asser Press 2006), 81. 52. Mathias Klang, ‘Disruptive Technology: Effects of Technology Regulation on Democracy’ (Doctoral Dissertation, Göteborg University 2006), 38. 53. Ronald Leenes, ‘Framing Techno-regulation: An Exploration of State and Non-state Regulation by Technology’ (2011) 5 Legisprudence, 143–169, 145. 54. Lawrence Lessig, Code: Version 2.0 (Basic Books 2006) 4; Leenes, n 54, 146–147. Leenes defines techno-regulation as “deliberate employment of technology to regulate human behaviour”. 55. See also discussions on ‘privacy by design’ Mark A Lemley, ‘Convergence in the Law of Software Copyright’ (1995) 10 Berkeley Tech. LJ 1; Marc Langheinrich, ‘Privacy by Design — Principles of Privacy-Aware Ubiquitous Systems’ in Gregory D Abowd, Barry Brumitt and Steven Shafer (eds), Ubicomp 2001: Ubiquitous Computing, vol 2201 (Springer Berlin Heidelberg 2001). 56. Peter-Paul Verbeek and Adriaan F. L. Slob, User Behavior and Technology Development: Shaping Sustainable Relations Between Consumers and Technologies (Springer Science & Business Media 2006), 5. 57. ibid. 58. Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC; 59. Phillippe Nonet and Philip Selznick, Law and Society in Transition: Toward Responsive Law (Transaction Publishers 1978), 6. 60. Rebecca Henderson, ‘The Innovator’s Dilemma as a Problem of Organizational Competence’ (2006) 23 Journal of Product Innovation Management, 5–10. 61. Roger Brownsword and Morag Goodwin, Law and the Technologies of the Twenty-First Century: Text and Materials (Cambridge University Press 2012), 66. 62. Scott D Anthony, The Silver Lining: An Innovation Playbook for Uncertain Times (Harvard Business Press 2009), 7. 63. Incumbents who fail to adapt when a disruptive innovation enters the market often find themselves forced to compete with the lower cost disruptive technology later to ensure their business continues. Vlaar et al (n 29), 159.

Technology, law, and shifting society  39 64. Roberto Mangabeira Unger, Law in Modern Society (The Free Press 1976), 5. 65. Christensen (n 30) 33–34; Ashish Sood and Gerard J Tellis, ‘Demystifying Disruption: A New Model for Understanding and Predicting Disruptive Technologies’ (Social Science Research Network 2010) SSRN Scholarly Paper ID 1629493 31 ; Rebecca M Henderson and Kim B Clark, ‘Architectural Innovation: The Reconfiguration of Existing Product Technologies and the Failure of Established Firms’ (1990) 35 Administrative Science Quarterly, 9. 66. Fred von Lohmann on Doug Lichtman, ‘A Conversation with Fred von Lohmann’ . 67. Christensen (n 30) 166; Clayton M Christensen, Dina Wang and Derek van Bever, ‘Consulting on the Cusp of Disruption’ (2013) 91 Harvard Business Review, 106–114. 68. Clayton M Christensen, Jerome H Grossman and Jason Hwang, The Innovator’s Prescription: A Disruptive Solution of Health Care (2009), 103. 69. Sofy Carayannopoulos, ‘How Technology-Based New Firms Leverage Newness and Smallness to Commercialize Disruptive Technologies’ (2009) 33 Entrepreneurship Theory and Practice, 419, 431; Eileen D Weisenbach Keller and William L Shanklin, ‘The Perfect Storm for Disruptive Technologies’ (2005) 15 The Marketing Management Journal, 172–173. 70. Casson (n 23), 59. 71. Jessica Litman, Digital Copyright (Prometheus Books 2006), 22. 72. Loevinger (n 42), 9. 73. Lyria Bennett Moses, ‘AGENTS OF CHANGE: How the Law ‘Copes’ with Technological Change.’ (2011) 20 Griffith law review 763; Joe Dysart, ‘Catch up with Tech or Lose Your Career, Judges Warn Lawyers’ (ABA Journal, 1 April 2014) ; David Houlihan, Esq., ‘Law Firm IT Strategy: Change Is Slow But Happening’ . 74. Saima Hussain, Mohammad Zaki Rashidi and Faheem Bukhari, ‘Consumer Innovativeness Leading to Innovation Adoption’ (2014) 6 European Journal of Business and Management 229, 230 75. Casson (n 23), 24–25. 76. Gourville uses these words and goes on to suggest that companies need to “brace for slow adoption.” Gourville (n 33). 77. See Moore’s discussion of the difficulties in obtaining consistent adoption rates with technology products and the stages of technology adoption for a better overview. He focuses on the differences between different consumer groups, noting that this often comes from differing market needs. Geoffrey A Moore, ‘Crossing the Chasm-and beyond’, Burgelman et al. op cit (2004), 432–433. 78. Attorney General v The Edison Telephone Company of London ltd LR 6 QB D244 [1880] QB D244, VI LR. 79. Similar legislative efforts had already occurred with the telegraph. Telegraph Act 1863 (26 & 27 Vict. C. 112); Telegraph Act 1868 (31 & 32 Vict. C. 110); Telegraph Act 1869 (32 & 33 Vict, C. 73). 80. ‘Overhead Wires: Alarming Accident’ The Bristol Mercury and Daily Post (Bristol, England, 20 December 1883); ‘Local and District’ Manchester Times (Manchester, England, 29 December 1883); ‘Special Telegrams, &c.’ Liverpool Mercury etc. (Liverpool, England, 29 October 1883); Casson (n 23) 127; Marlborough, ‘The Telephone and the Post Office’ (1892) 6 The New Review, 320–327.

40  Technology, law, and shifting society 81. Image & caption from Casson (n 23). Before picture page129, after image page 133. 82. In 1883, out of 97 wires strung in one major thoroughfare, only 3 belonged to the Post Office who had a monopoly on both telegraph and telephone services. POST OFFICE—OVERHEAD WIRES HC Deb, 14 June 1883, Vol 280, cc556–7; The London Overhead Wires Act 1891 (54 & 55 Vict. c. lxxvii). 83. Patrick J Egan, ‘“Do Something” Politics and Double-Peaked Policy Preferences’ (2014) 76 The Journal of Politics, 333–336; Bruce P Keller, ‘Condemned to Repeat the Past: The Reemergence of Misappropriation and Other Common Law Theories of Protection for Intellectual Property’ (1997) 11 Harv. JL & Tech., 401–403. 84. Erwin Danneels, ‘Disruptive Technology Reconsidered: A Critique and Research Agenda’ (2004) 21 Journal of product innovation management, 246, 248–249. 85. Gourville (n 33), 98. 86. Daniel Kahneman and Amos Tversky, ‘Choices, Values, and Frames.’ (1984) 39 American psychologist, 341. 87. C Thomas Dienes, ‘Judges, Legislators, and Social Change’ in Stuart S Nagel (ed), Law and Social Change (Books on Demand 1974), 35. 88. Unger (n 64), 61. 89. John Burrows, ‘Academics and Law Reform’ (2013) 25 New Zealand Universities Law Review, 667–680, 669. 90. Hammond Knzm, ‘The Challenge of Implementation: Getting Law Reform Reports onto the Statute Book’ (2013) 13 Oxford University Commonwealth Law Journal, 239–241. 91. Burrows (n 89), 670. 92. James Fishkin, When the People Speak: Deliberative Democracy and Public Consultation (Oxford University Press 2009), 1. 93. Dee Cook, ‘Consultation, for a Change? Engaging Users and Communities in the Policy Process’ (2002) 36 Social Policy & Administration 516, 517; Eleonora Rosati, ‘Do Ask, Do Tell, Do Nothing: The EU Commission and All Those Copyright Consultations’ (2014) 9 Journal of Intellectual Property Law & Practice, 785. 94. Thomas Dubuisson, ‘When the World Wide Web Becomes the World Wild Web: PIPA, SOPA, OPEN Act, CISPA and The “Internet Revolution”’ , 29; Anti-Counterfeiting Trade Agreement (May 2011); ‘Introductory Note to the Anti-Counterfeiting Trade Agreement’ (2011) 50 International Legal Materials, 239.

Chapter 3

Social norms and disruptive innovations

“Every innovation begins as a deviation from existing social norms.”1

“Actions speak louder than words.” It is a mantra repeated across the world, in part because it simplifies a truth – that actions carry meaning. While we speak to express ourselves, self-expression is not limited to language. Our behaviours carry meaning as well. This makes social norms, which are focused on individual’s behaviours, indicators of social shifts. The quest to find the next disruptive innovation can be seen as the quest to find a technology that will create new social norms. Technologies that develop, including disruptive ones, can create social norms. The goal for any business is to create a large market for their product, whether by opening up new markets or gaining a majority in an existing one. The by-product of that market is often new norms for users. Disruptive innovations specifically are products that go against conventional market wisdom on what customers want, which in turn goes against the current market norms. Where they flourish, the new parameters that outperform current innovations on are indicators of shifts in values. Their period of disruptiveness happens as the market sorts out which of these paradigms, the disruptive or conventional, will prevail going forward. This battle can be seen as a conflict of norms. The winner of the disruptive/conventional technology market fight will determine the new norms for that market. The idea is that with sufficient understanding of a disruptive innovation’s impact on society, a law reformer can make better decisions. Like markets, social norms grow and fall, sometimes concurrently. A natural question is “who decides what the social norm is?” but asking this question ignores the base characteristics of norms. The answer to such a question has to be “those who follow the norm” are those who decide what a social norm is. As Lawrence Lessig wrote, “these social meanings are what is orthodox. They constitute what is authority for a

42  Social norms and disruptive innovations

particular society, or particular culture.”2 As outsiders, we can observe what appear to be social norms, but the definitive decider is those who adhere to them. By considering social norms we ensure that society’s current and growing ideas surrounding a subject are relevant and necessary. Much of legal scholarship misses this consideration, dissecting legal processes and case law as if in a vacuum where the opinions and standard practices of the outside world are irrelevant. This chapter explores social norms as indicators of change and market desires.

Norms and signals Behaviour by individuals, viewed collectively, can show the direction of society. According to Eric Posner, social norms act as signals.3 The act of following a social norm involves sending signals to differentiate oneself as a “good type” by following the norm.4 This signals to other norm followers that the individual belongs and can be trusted. Posner discussed signalling primarily in terms of business relations, however, the principle can be applied more broadly. For instance, if I choose to follow the social norm of following traffic control rules, then my behaviour signals to others around me that I am a trustworthy road user. If a man follows the social norm of wearing a suit and tie to work, he demonstrates that he takes his job, colleagues, and the expectations of his work seriously. However, if he were to wear a suit and tie to a job where that was not the norm, such as in the tech sector, it might not be perceived in the same way and may even be seen negatively. These signals become part of the makeup of how we interact with each other. We react to the signals given by others and give out our own. In doing so, we communicate our values, or at least how we wish others to perceive our values. The signals given by those who follow a social norm link to the values that they hold. On a larger scale, each individual’s choice to follow a social norm can be seen as part of the whole. Social norms that flourish in a society likely reflect the values of the individuals in that society, and potentially the society as a whole. By understanding the norms that exist within it, we can form a greater understanding of the society. Rather than considering social norms a specific point, social norms should be viewed as a range of acceptable or permissible behaviour, although that range may change between individuals.5 The evolution of social norms is a continual process, whereby individual meanings to social structures and constructs (such as language) mutate over time.6 Changes in language norms are unlikely to require changes in the law, although language has a significant role to play. There is always flexibility in what is acceptable in social norms. What does not change within that range is the intent behind adherence to the norm.

Social norms and disruptive innovations  43

Norms and disruptive innovations Where a society finds that rapid change, technological or otherwise, is occurring, then allowing the social norms that develop to regulate behaviour may not satisfy the needs or goals of that society.7 Do disruptive innovations spawn more social norms than normal and do those norms attract regulatory behaviour? The choice to use a disruptive innovation over any other carries meaning in itself. By definition, a disruptive innovation reflects the values of its market in identifying lower performance factors that the market finds acceptable. Therefore, they are already linked to the values of the market, meaning the norms that arise around them may be a reflection of those values. For business managers, the choice of technology can mean the difference between efficiencies within the organisation. Finding a technology that not only works efficiently, but that shares the values of employees can maximise productivity. Malhotra and Galletta found that, regardless of motivation, adopting information systems that matched pre-existing values of employees could result in a greater commitment to the success of adoption resulting in greater effort on the part of the employees to learn the new system, decreased cost in enforcing compliance, and increased efficiency.8 When the values represented in the technologies reflected the values of the user, adoption was greater. This suggests that the choice of technology by an individual can reflect their personal values. Markets also have effects on social norms, whether it is through the norms that develop within a market or by the emergence of new markets that threaten the stability of old markets. Market regulation in many ways is the regulation of norms, so regulations that affect markets may shift the norms attached to that market. One of the interesting parallels between social norms and disruptive innovations happens around the question of diffusion. Social norms are more likely to become established the more people act in accordance with them. This can be seen in discussions of conformity and herd behaviour that contribute to individuals adhering to a social norm.9 Conformity relates to individuals finding themselves at a disutility or disadvantage by having different possessions/abilities than others. To avoid this, they will work towards conforming with the norm to minimise this disutility. Herd behaviour takes conformity a step further when individuals do not have sufficient information and (assuming other individuals have more information than they do) follow another’s example to what they believe will be the best alternative. The social norm then comes from these individuals’ attempts to avoid a bad outcome based on their own lack of information. This makes it likely that disruptive innovations affect social norms, as this kind of uptake is seen with disruptive innovations. The very definition of a disruptive innovation is that it used by an audience greater than the

44  Social norms and disruptive innovations

original market. As such, disruptive innovations are more likely to create new social norms through their usage than typical technological innovations simply by virtue of their greater usage in the populace. Because of this wide influence, they also are likely to attract regulatory action. Norms and law The question is are there social norms that develop around disruptive innovations that require interventions by regulators or legislators? The easy answer is, of course, there are norms that require intervention, however, whether there is a systematic type of norm or a likelihood of social norm growth following the introduction of disruptive innovations is a more complicated question. Norms must at least have some minimal effect upon behaviour in order for the norm to exist.10 Otherwise, the norm is not functioning as a social norm and therefore does not exist. Social norms can be seen as rules that require no government for creation, dissemination, or enforcement.11 While social norms can be useful in assisting regulators in guiding behaviour, they are also “complex, poorly understood, and sensitive to factors that are difficult to control.”12 This makes them difficult to rely on as regulatory tools in and of themselves. Broadly speaking, the law operates much like social norms in that it is accepted behaviour. Laws can be viewed as orders or commands backed up with the threat of sanctions for non-compliance or a norm that comes with non-social enforcement. This considers law as a top-level command that filters down to guide behaviour, but the opposite view can be useful as well. Many legal rules can be viewed as “efforts to harness the independent regulatory power of social norms.”13 The law can be used to buttress “good” social norms by attaching sanctions where those norms are violated.14 This by no means applies to all legal rules and regulation, however social norms can be harnessed as cheap, low-cost regulatory tools that can assist in guiding behaviour.15 Technological growth regularly happens without specific legal guidance, and the courts are often the first point of contact between a new technology and the legal regime. Where courts use community standards to settle a dispute, they are using social norms to determine what law should be. This idea of “enacting custom” works with prior jurisprudential principles, which suggest that judges can only make a law where they find a norm worth enforcing.16 Legal regulation has the possibility of “crowding out” existing social norms, if not outright displacement.17 There have been efforts in the past to regulate social norms through legal regulation “to eliminate the pathologies produced by social norms”18 whether or not those norms reflected social values. While this can be useful in curbing bad behaviour, regulation may also accidentally destroy beneficial norms that had already been established and thereby end up costing society.

Social norms and disruptive innovations  45

Inevitably, the government and governmental agents affect social norms, creating new norms with the passing of laws.19 Through legislation, regulation, and policy implementation, the government affects norms on a regular basis.20 Where social connectedness is low, it becomes more difficult for social norms to provide punishments or disincentives for inappropriate behaviour. This is where the law should regulate behaviour, which tracks with the historical assertion that informal regulation or norms have been increasingly replaced by formal law.21 How do we know if a norm produced by technology requires regulation? When should this formalisation occur? We’ve identified key questions to consider when looking at norms and technology that may inform when legal efforts are required.

Question: is the disruptive innovation linked to a demographically significant group? When considering whether regulation is necessary or likely, one of the first steps is in considering who will be regulated. Typically, demographics looks at basic data like age, gender, location, and social status. This is helpful in establishing demographically significant user groups of disruptive innovations that are likely to attract regulatory action. At the simple end of the scale, the sheer size of a group may be demographically significant. Where majorities exist, the social norms followed by that majority may indicate social values. A norm followed by a large number of people is likely to end up affecting mainstream behaviour. A social norm that becomes widespread across the populace may be a signal as to what is considered valuable in a society. Therefore, large groups that follow a particular norm are likely to be demographically important. Location can also be important. Local customs, culture, and social norms that develop in small localities may not attract the same kind of regulatory attention that social norms that cut across a country will. There is little need for the federal government to deal with the social norms of a small area, but a norm that cuts across several regions might be indicative of wider social values. Generational differences also help explain shifting values in society.22 As one generation’s experiences shape their values, this becomes more influential as they grow, take up positions of power, and pass their values to their children. This means that generational change in power can elicit “radical policy shifts, especially at the ideational/normative level.”23 It is clear the generations who grow up with different technology adapt to, value, and consider technology differently. The values of a younger generation can show future societal leanings. Social norms defined by age groups may be fleeting, like the fashion and speech affective adopted by teens,24 however, when they tap into the values held by that generation, they can have an impact on society as a whole as these young people grow into adults.

46  Social norms and disruptive innovations

For example, whether the usage of a mobile phone in a restaurant is acceptable is contentious. While nearly half of eighteen to twenty year old Americans found using a mobile in a restaurant “generally OK,”25 overall only 38% of adults believe it to be acceptable behaviour.26 While restaurant use may not be yet accepted widely, using mobile phones while walking down the street, on public transportation, or while waiting in a queue is acceptable by approximately three-quarters of the American populace.27 The social norms surrounding mobile phone use is still being determined with younger users not only being more likely to use their phone in public but also finding it acceptable to do so. As the technology grows, and the younger generations who grew up with this acceptance of its usage, the social norms created by these younger generations become more relevant. For a group to be demographically significant, it must be more than just the early market users for a disruptive innovation. Every technology begins with niche users, early adopters, who often use the technology in ways that the mainstream markets do not.28 Early-tech enthusiasts often adopt a technology simply because it is new. Because of this, early adopter values and decisions cannot be seen as indicative of broader social norms or values. One measure of disruption is that the technology underperforms on attributes valued by mainstream customers,29 not early adopters. Therefore, disruptive innovations can only begin to be linked to social norms adopted by the mainstream consumer base. Gatekeepers The question of who adheres to a certain norm is important in terms of what role they play in society. For instance, if the cohort consists of a large group that cuts across social-, political-, and age-groups, then it is likely that that social norm will be harder to eradicate if it is undesirable. On the other hand, if the majority of those following the social norm come from a specific section of society, then it may be easier to adjust their behaviour to fit a new social norm. The gatekeeper role is ideally suited to create new norms as their guidance and actions are can shape an industry. This is an ideal type of cohort for regulation/legislation to work with and one consistently used in legislation already. The gatekeepers of the internet, service providers, platform owners, etc., are given both freedoms and responsibilities in most countries to combat copyright infringement. By changing a gatekeeper’s behaviour, the industry will necessarily be changed. This can be seen in the regulation of fertility treatments in the United States. In 2009, the states were left to legislate on assisted reproductive therapy (ART), and the United States as a whole lacked a framework for issues involving human tissue that covered both ethical and technological issues.30 Social, or at least professional, norms built up in the United States

Social norms and disruptive innovations  47

around the early provision of in-vitro and other treatments in the absence of legal guidance. Those who followed these norms were mainly practitioners, not the couples seeking to get pregnant. Bernstein likened the lack of regulation of fertility treatments to that of Peer-to-Peer networking, suggesting that because of the cohort of norm followers (the gatekeeper physicians and providers) regulation on fertility issues could avoid the same compliance problems found with Peer-to-Peer.31 Were new regulations to come in, especially with the potential for loss of license with non-compliance, it is highly likely that fertility providers would follow the new regulations. Social norms that develop around gatekeepers can be particularly useful to target. For disruptive innovations, where their spread is wide across groups of users, gatekeepers proved vital in the formation of effective legislation with regards to these innovations. Whether voluntary or created, their position ensured compliance without overly burdening users. Regulating gatekeepers provided flexible options that could adjust to shifting social norms. Rights holders This leaves the question of minorities that can be demographically significant. The number of those following a norm does not have to include a majority of the population to be significant. While mass usage can be a significant factor, smaller groups can be significant enough to also warrant regulation. This is true for all regulation. Criminal law, for instance, regulates behaviour that is not performed by the majority of the populace. Special-interest legislation is nothing new and has the added quandary of often fighting established norms to provide equality through the law. Minorities can play a part in shifting social norms. Where a minority has a central role within its social network it can gradually recruit new members to eventually lead to new social norms.32 While minorities can bring about new norms, until a norm has broken out into the mainstream market it is unlikely to attract legal regulation unless the behaviour is significantly in opposition to mainstream values.33 Having said that, it is necessary to ensure that a group is demographically significant, and not just shouting louder than a silent majority. The problem is how can a small minority group influence behaviour enough that their behaviour becomes a social norm? For copyright, the minority with the largest influence is rights holders. While gatekeepers are effective regulatory focuses, rights holders are effective at bringing the need for regulation to light. The continuing issues over filesharing show the conflict between the norms that have developed around filesharing against the norms that previously were established around the legal usage of copyright works. This could be seen as a clash of norms between two demographic groups, one of which has the backing of copyright law. Neither of these is a majority group, but rights holders

48  Social norms and disruptive innovations

are clearly a group protected by the law. This backing by law allows the minority position to have much more influence than is traditionally seen. The conflict often seen between rights holders and infringers brings us to our next question.

Question: have conflicting norms arisen? One of the signs that a disruptive innovation is at the point where it will attract regulatory behaviour is that conflicting norms have arisen surrounding its use. Social norms grow and fall, often concurrently. The norms followed by one group may not make sense or be followed by another. Norms may overlap with similar obligations imposed on adherents,34 but that is not always the case. Often social norms and constraints are not complimentary but in outright conflict. Directing social norm change is a difficult prospect. As Posner wrote, “the only way for individuals to self-consciously change [social norms] in a direction they seek is to violate them. Not just violate them, but to violate them in a public and decisive way.”35 This puts individuals in conflict with the status quo and can mean uncomfortable times and the consequences of shame, guilt, and reputation damage. One of the basic tenets of social norm behaviour is that it begins with the assumption that an individual will act in its own interest.36 Much of the work on social norms and cooperation starts with the Prisoner’s Dilemma37 and the question of why people act against their own best interest. Because social norms typically adapt behaviour from pure self-interest, it can be difficult to identify the specifics of what is motivating behaviour.38 In an attempt to explain the origin of norms, McAdams theorised the possibility of “dysfunctional norms” whose creation would warrant legislation.39 For Eric Posner, the norms created that signalled to others were those that went against self-interest and made up the difference between “good” and “bad” types.40 However, norms do not necessarily have to be dysfunctional or “bad” to require regulation. They merely must stand in conflict to something currently in existence. While discussions on norms often focus on the beliefs and values held that uphold a norm, they are more usefully discussed as behavioural modifiers.41 Sunstein argued that behaviour is “pervasively a function of norms.”42 However, a difficulty with these models is that what appears rational from an insider’s perspective, may not seem rational at all by those that are outside of a norm or situation.43 The follow-on question is which norm is the “correct” norm to consider? This can be a difficult proposition as conflicting norms exist all the time. There is no central authority for the creation or management of norms, although one could argue that law provides such to a degree.44 Social norms

Social norms and disruptive innovations  49

may become widespread, but they can also rise in smaller groups that may not significantly impact society. One group may adhere to a certain social norm, while another follows a conflicting norm. The resultant plethora of social norms are not necessarily ones that require consideration. Nor is it necessary to determine which of these norms is the “correct” social norm. If a social norm exists, then to a section of the populace it is real. We need not determine which norm is better than the other, merely establish its existence and whether there is a need to address it. This question is not about the conflict that occurs where norms conflict with an individual’s self-interest, but the conflicts norms generate outside the individual. There are two possible facets, norms that conflict with social values and norms that are in conflict with current legal rules, causing rifts between adherents. The conflict between norms and law can help identify laws in need of reform. This is particularly useful as it presents a potential answer to the question “why is regulation occurring?” Regulation should not occur purely for the sake of regulation, however, regulation to solve a conflict is a worthy goal. Norms v social values Many norms develop organically, without direction. As this happens, adherents reflect their values in the norms they follow,45 so it is unsurprising that these may develop into conflicting norms between groups who hold different values. One of the difficult questions to answer is whether a social norm is also an individual’s ethical norm. Morality is often linked to criminal law, where the punishment of immoral behaviour by society is seen as appropriate. However, what of behaviour that is not morally wrong but is against prevailing social norms? Rather than being influenced by whether an action is illegal or not, the morality of the action is more likely to impact whether an individual engages in the behaviour.46 This means that illegality is less likely to prevent adherence to a norm than the consideration of whether it is right or wrong. Perhaps a more difficult question to answer is whether a social norm conflicts with current social values? Practices may arise that are not against the law and do not cause significant conflict between individuals sufficient to warrant legal intervention but do challenge basic social values. These norms will also attract regulation due to their potential to divert the current course of society. The question of whether a technology’s usage is moral or not can be fundamental to the norms that arise surrounding it. This is not easy to identify. Early internet users, for example, often adopted the libertarian anti-copyright ideals espoused by Barlow.47 However, these ideals were certainly not shared by intellectual property rights holders who liken

50  Social norms and disruptive innovations

internet filesharing activities to theft.48 The average person’s position on copyright is unknown, but it is unlikely to have the strong preference for strict copyright protections that drives rights holders or the absolute rejection of authority of Barlow. This may explain part of the struggle that is occurring with Peer-to-Peer networking today. Peer-to-Peer (P2P) filesharing began for the young, technically savvy in the 1990s. In 2004, Moore and McMullan found that a majority of US university students were engaged in filesharing activities.49 In that study, they found despite a majority realising filesharing was illegal, only 62% of respondents felt that filesharing was unethical (although the data collection of this study happened prior to the first publicised legal cases prosecuting filesharers, which may have contributed to this result). While infringement in eighteen to twenty-four year olds may be down, 25% of online users continued to access illegal content in 2018.50 While students are often expected to be more likely to engage in this behaviour, later studies have shown that the ethical approach to filesharing is comparable between students and intellectual property conscious groups.51 If, as research suggests, there is a large segment of the population who do not feel that breaking the law with regards to filesharing is a problem,52 then this brings up difficulties for regulators. This is the quintessential question when norms arise that conflict with social values: are the social norms a product of a changing society that needs new regulations to accommodate new social values or are the values inherent in current law that should be prioritised? While the expressive function of law is often overlooked by regulators, when norms conflict with social values, regulators should engage in questioning whether current values embodied in law are still relevant for society today. This is not to say that regulation needs or has attempted to find solutions for every conflicting norm. This would be an insurmountable task. However, it does bring up the next point, which is; what happens when norms conflict with existing law. Norms v laws Friedman argues that any legal change is a social change within the law.53 If so, then new norms, which conflict with law, may be one way of identifying where social change has occurred and new regulation may follow. Behaviour that runs contrary to law is likely to produce conflict between state actors and individuals. A consistent theme in norms literature is the concept of “internalising” norms, such as transmuting fear into guilt. Internalising norms can change the behaviour of individuals.54 Economical discussions on this primarily focus on the benefits and costs, while the psychological approach allows for more complications than the simple cost/benefit exercise of game theory.

Social norms and disruptive innovations  51

Either way, internalisation of norms means that norms are followed. It is the “ultimate decentralisation of law.”55 Some of the struggles with enforcement in recent years exemplify this. Intellectual property has faced continued conflict with the tech industry and difficulties with compliance, and the Internet has seen numerous norms arise that conflict with the long-held norm of respecting copyright law. In 1997, Tyler suggested that the public was unwilling to accept that infringing intellectual property laws was wrong, pointing out that without such acceptance there was little incentive to follow the law.56 Online media consumption norms run in opposition to copyright regulations, a difference seen as “a gap between legal and social norms.”57 Filesharing is one of these norms, and in 2009 Hetcher argued that the best explanation of the continued usage of filesharing in spite of its illegality was the centrality and adherence to social norms.58 The Gowers Report considered the introduction of a personal copying exception, in particular with regards to format-shifting, noting that “[m] ost of the British public were unaware or unconcerned”59 that currently, this was copyright infringement. The prevalence of format-shifting, which Gowers qualifies as “an entirely legitimate activity,” led both Gowers and Hargreaves Reports to conclude that format-shifting should be legal.60 A part of that recommendation is an understanding that the norms of how that technology worked and how individuals used that technology ran afoul of existing current copyright provisions. The suggestions made considered the norms of the time and recommended a change to accommodate personal copying for individuals. In spite of the popularity of the notion, threats and risk evaluations have been found to play only a minor role in whether an individual will follow the law.61 Legal sanctions can create the possibility of a social norm-driven backlash surrounding a technology.62 This backlash can happen in two ways – by increased unwanted behaviour when enforcement is suspended and by increasing the perception that unwanted behaviour is more prevalent than it is through implication. These beliefs, predicated on social trust, can become self-fulfilling.63 While harsher copyright law enforcement measures appear to deter those who already do not infringe, it also appears to create firmer anti-copyright norms where they already existed.64 Sunstein argues that norms can go further than merely hampering legal effect by creating obstacles to both “human autonomy and well-being.”65 In such situations, it may not be possible for social actors other than governmental regulators and legislators to affect significant change. By aligning regulation with accepted social norms, laws can complement the effect of social norms. Where laws align with social norms and values, individuals are more likely to comply even where complying is not within their self-interest.

52  Social norms and disruptive innovations

Question: is there interest in the technology? The question of conflict brings us naturally to this question. In order to attract regulatory behaviour, the norms created by a technology have to be significant enough to attract attention. Conflict is more likely to bring attention to a social norm and the technology that established it. This is not to say that the “majority” social norm is found solely in the media. Social norms are not determined by who shouts the loudest, however, conflicts that are brought to the attention of the public, and regulators, through publicity are more likely to be acted upon. Part of this is because social norms are not determined just by individuals. Public disputes play a significant role in determining exactly which social norms should take precedence.66 One of the reasons lawmakers do not wait and see is because of pressure from interested parties who clamour for regulation or protection. The fastest way to attract regulatory action is by grabbing the attention of the actual regulators themselves. This involves engagement in the political process by those involved in some form or other. Technological adoption is unlikely to happen at the governmental level first, however, the demand for change can come from several sources. Legal sources, lawyers, governmental bureaucracy, and judges can all call for change in the legal system. Politicians may hold opinions on the usage of technology that may be transformed into policy at the governmental level. Although interest in technology may attract the notice of political actors, it may not bring about change. Considering the history of law and technology, Kranzberg noted that “[a]lthough technology might be a prime element in many public issues, nontechnical factors take precedence in technology-policy decisions.”67 This can be seen in how the technical aspects of technology are often ignored, with legal interpretations hinging on creating parallels between existing and new technology.68 Of importance is whether there is a will behind pushing for regulation. Market forces alone may not provide incentives for regulators, however, private interests have proven to incentivise politicians.69 Creators of new technologies are not always averse to regulation, and some even welcome it. As Brian Chesky, Founder and CEO of AirBnB, said in an interview “We want to be regulated because to be regulated is to be recognised.”70 One of the clear indicators of this is the creation of a political or special interest group. By definition, the formation of a political or special interest group is a sign that there is interest in that subject and a will to push for regulation. The rise of special interest groups in the late 20th and early 21st Centuries has led to a growing unease in Western cultures over the power and influence of special interest groups. In the United States, with the Supreme Court judgment in Citizens United71 and the rise of Political Action Committees, the tools available to influence and pressure the political landscape has increased dramatically from traditional lobbyists. Money has

Social norms and disruptive innovations  53

become the defining factor of the worthiness of a cause. As the legislative process of creating new laws is inextricably linked to politics,72 the power of lobbying and special interest groups has to be taken into consideration. Concern over special interest groups is not new.73 Interest groups pose particular challenges for democracy in that they have the potential to achieve results in their favour that is disproportionate to their size due to the power of organisation.74 Consistently, individual interests, those put forth by individuals or through poorly organised groups, provide little incentive for legislative action.75 Disregarding the risk that a particular candidate may become beholden to the demands of organised interest groups, organisation has the potential to raise the concerns of the few above those of the many. While lobbying success may be predicated on a number of factors,76 the existence of a group dedicated to that topic is more likely to find its agenda championed than a non-supported topic. Further political interest groups can find support for their positions not just in legislation, but in the creation of policy and agenda-setting. Regardless of what they attempt to influence, the likelihood is that some regulatory action will attach to the actions of these groups. Further, it shows a level of interest that is likely to raise a technology’s profile to the point where it will become regulated. General media interest Our elected officials, non-elected governmental officials, and policymakers do not always recognise the Next Big Technology. The general media has a role to play in bringing new technologies to the forefront of regulatory priorities. More basic than education or guiding discourse, the media plays a significant role in bringing the existence of new technology to the populace.77 The media’s role in society has grown with technology and has an influential role in educating the populace on the world at large. Media plays a role in not only informing the public of issues, but also in raising issues that might otherwise not be discussed. It can act as an empowerment for the marginalised, providing a platform to offer differing perspectives.78 The deliberation provided by journalists can mobilise voters and assist in clarifying positions that can ultimately form policy.79 However, it goes further than this. The media, particularly those who work in areas that touch the political spectrum, cannot help but exert influence on the discourse of a topic. Despite attempts at journalistic integrity, the news we see is rarely, if ever, truly neutral.80 The portrayal in the media can impact not only how the public sees an issue, but how political players view and legislate on an issue. For example, the portrayal of welfare recipients as morally inferior in media led to a denial of welfare in general in the United States.81 In this way, the media portrayal of welfare recipients directly influenced the outcome of the legislative process.

54  Social norms and disruptive innovations

Sensationalism or tabloidisation, whether in works of fiction or in ordinary news, has been a time-honoured technique to grab the public’s attention. While sensationalist news is often linked to misleading or misinformation,82 media interest in a technology can act as an agitator, pushing for action. This is particularly true now with social media pressures.83 3D printing is one example where the media’s interest resulted in legislative change. While 3D printing had been considered in academic legal circles,84 it did not receive significant notice by regulators until Defense Distributed demonstrated the possibility of a 3D printed weapon.85 By January 2013, the tech media were expecting legislation after media attention had brought 3D printing to the attention of legislators in the United States. By the end of 2013, lawmakers in both the United States and United Kingdom had responded to the advent of the 3D printed gun. In the United States, Congress passed an extension to the Undetected Firearms Act.86 The UK government brought 3D printed guns under their existing firearms law after discussions in Parliament.87 Both governments made it clear that how a firearm was created was not the issue at hand.88 Rather than regulate all the potential uses of the technology, regulation took the form of regulating certain applications. Despite attempts to block the provision of these files, the United States would ultimately see Defense Distributed reach a settlement with the State Department that allows the provision of these files online.89 While gun control is a hot topic and one might be tempted to dismiss this as a politically charged issue coming to the fore, it was the media’s attention that highlighted the existence and possibilities of the 3D printed gun to those in power. While it is likely that the 3D printed gun would have generated interest on its own, it is telling that other aspects of 3D printing have not yet generated regulation. Media interest is therefore one possible avenue for regulatory attraction. With its adaptability and decentralised control, media’s interest can vary with social, cultural, and technological change. Norms may be idealised in the media and “inconspicuously acquire the quality of stubborn social facts.”90 Additionally, media attention can be coupled with the interest of other parties to significantly increase the possibility of regulation. Grassroots interest While regulatory action is likely to follow interest by those in power, other demands can come from outside the system. One of the most important areas that interest can come from is the public at large. Initially, these will likely make up the market users of the disruptive innovation itself as well as those who are funding, creating, and marketing the innovation. Innovators will naturally push to raise their product’s profile as the success of the

Social norms and disruptive innovations  55

disruptive innovation can be linked to interest by the public. While political interest and interest groups may come from grassroots supporters, the interest generated by the public opinion itself can generate the need or demand for legal change.91 This can be driven by the media, but the general populace is important to consider as they are often those who are actually complying with a social norm. When there is a gap between the law and social norms, the question of enforcement becomes problematic. One of the dangers of legal regimes that run counter to current social norms and opinion is that enforcement may “trigger opposition and protest.”92 Such protests are clear indicators not only of the gap between law and the values of the populace, but of an interest by that populace. Of course, not all protests are those which align with social norms. Protests can run counter to the prevailing norms, pushing for a change in the current regime whether that regime is driven by law or social norms. Activism, whether formal or informal, can be positively seen as interest. Consumer behaviour and policy support can lead to social movements that lead to activism or organisations like lobby groups.93 Non-activists movement support theory comes from similar ideas to social norms, where human values spur social movements.94 Such social movements are the ideal hallmark of societal shifts in values as they demonstrate the will of the people, or at least a vocal section of it. It is in these cases where laws can assist in creating new, better for society, social norms. However, activism isn’t necessary for grassroots interest to factor into whether a technology is regulated or not. Not all grassroots activity is negative or antagonistic. Mere adoption, a positive action, can be a signal of interest. Enough support for a technology, such as making it mainstream, can have an impact.

A confluence of factors, or how to affect policy While single points of interest are likely found, it is usually where multiple streams take an interest that regulatory change is most likely to occur. Grassroots interest will not amount to much if regulators dismiss it or it is not carried by the media to a degree which attracts attention. Where multiple points of interest coincide, action is more likely. The Stop Online Piracy Act (SOPA)95 was designed to stop internet piracy, but provisions in the bill caught the eye of the technology sector. The bill would see internet sites become liable for user’s behaviour, something that large internet companies knew could become problematic for them. Despite lobbying against it, the technology companies had not found much support until they staged a protest in January 2012, enlisting thousands of other sites as well as the public, through a staged blackout of popular internet sites.

56  Social norms and disruptive innovations

The effect of the blackout was surprising and fast. Political support for the bills began to crumble.96 In the wake of the intense popular effort, support for a bill once thought to be unstoppable became so toxic that it failed to get off the ground, despite attempts to revive it later.97 The ability for politicians to support such a bill was dramatically changed due to the position of their constituents. The SOPA protests saw a surge in awareness and interest in proposed governmental policies that would regulate certain aspects of the internet. Rather than simply blacking out sites, tech companies used the opportunity to provide information alongside links to contact legislators, sign a petition, and otherwise provide support against the proposed legislation.98 This meant that otherwise uninterested parties had the issue raised before them, were provided with easy-to-access information, and a way to act upon it without significant effort. To be fair, the SOPA/PIPA protests did not start as a grassroots movement, but as a protest by a number of gatekeepers, notably the website Wikipedia in the form of a service outage.99 However, the reaction amongst the grassroots populace to the gatekeeper’s protest was significant. Spurred by what they viewed as an attack on norms of the technology they already used, the populace made their voices heard. Whether you consider the actions of the gatekeepers as a form of freedom of expression or as an abuse of power,100 is it unlikely that the simple blackout would have changed much without further support from the grassroots population. A petition run by Google claimed over 4.5 million signatures in protest,101 while Avaaz.org had over 1.45 million signatures within one day of the protest. It was an unprecedented mobilisation of the internet as a whole. What some had dismissed as a “gimmick”102 was later categorised in the US Government’s 2013 paper on copyright policy as an “unprecedented online activism from individuals, companies, and civil society.”103 In that green paper, the difficulty in passing legislation on enforcement was noted, with particular regard to SOPA and PIPA, concluding that further legislation may not be the answer in all cases. Yochai Benkler, co-director of the Berkman Center for Internet and Society at Harvard University, noted “[y]ou’ve got millions of citizens who care enough to act. That’s not trivial.”104 While the SOPA/PIPA blackout was not a solely an episode of grassroots activism, it is one of the largest movements in recent times centred around the usage of technology. The combined grassroots and gatekeeper protest had real consequences for the future of internet legislation, scaring Congress into backing away from the kind of closed-door negotiations with vested interests that had been the normal way of developing legislation, at least for a time. This kind of interest can make a difference in the political agenda and what technologies attract regulatory behaviour.

Social norms and disruptive innovations  57

Conclusion When confronted with a confluence of factors, a demographically significant group, keen interest, and rising conflict, it is likely a technology will attract regulatory action. Conflict is the strongest of these, and the most easily identifiable reason behind legislation. The need to resolve conflict, whether, between existing practices, social norms, legal pressures, or vested interests are a strong motivator for regulators to act. In fact, even the possibility of conflict can produce action. However, that conflict is often not brought to the attention of legislators without interest. Rights holders have a part in this as they have a vested interest in ensuring their rights are not infringed. However, other interests such as general public policy, commercial interests, and widespread population use can also produce regulatory action. These factors allow legislators to justify action. Conflict needs resolution, that conflict was highlighted by interested parties, and demographics allowed a justification. This proved to be the case in the majority of instances. With this understanding of social norms, how they interact with the law and technology, we can identify disruptive innovations that will require legal efforts. Legislative efforts can then be focused where they are most needed. However, there are questions that still remain. Of crucial importance is when should you regulate? This is a complicated question. Disruptive innovations take time to establish themselves on a market. Social norms take time to develop and become a fixture of society. Legislating at different points of a disruptive innovation’s life cycle can have dramatically different results. This question is explored in the following chapters as we consider three historic disruptive innovations; xerography, radio, and computer programs.

Notes

1. D Lawrence Kincaid, ‘From Innovation to Social Norm: Bounded Normative Influence’ (2004) 9 Journal of Health Communication, 37–37. 2. Lawrence Lessig, ‘The Regulation of Social Meaning’ [1995] The University of Chicago Law Review, 943–947. 3. See Eric A Posner, Law and Social Norms (Harvard University Press 2000), 18–27. 4. ibid., 19. 5. Samuel A Stouffer, ‘An Analysis of Conflicting Social Norms’ (1949) 14 American Sociological Review 707, 708–717. 6. Lessig, ‘The Regulation of Social Meaning’ (n 2), 962. 7. Richard A Posner, ‘Social Norms and the Law: An Economic Approach’ (1997) 87 The American Economic Review, 365–366. 8. Yogesh Malhotra and Dennis F Galletta, ‘Extending the Technology Acceptance Model to Account for Social Influence: Theoretical Bases and Empirical Validation’, Proceedings of the 32nd Annual Hawaii International Conference on Systems Sciences, 1999. (IEEE 1999), 9–10.

58  Social norms and disruptive innovations 9. Posner, Law and Social Norms (n 3), 40–42. 10. Robert D Cooter, ‘Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant’ (1996) 144 University of Pennsylvania Law Review 1643–1664. 11. Richard A Posner and Eric B Rasmusen, ‘Creating and Enforcing Norms, with Special Reference to Sanctions’ (2000) 19 International Review of law and economics, 369–369. 12. Posner, Law and Social Norms (n 3), 8. 13. ibid. 14. Richard A Posner, ‘Social Norms and the Law: An Economic Approach’ (n 7), 367. 15. Posner, Law and Social Norms (n 3), 8. 16. Robert D Cooter (n 10). 17. Ben Depoorter, Francesco Parisi and Sven Vanneste, ‘Problems with the Enforcement of Copyright Law: Is There a Social Norm Backlash?’ (2005) 12 International Journal of the Economics of Business, 361–362; Yoshinobu Zasu, ‘Sanctions by Social Norms and the Law: Substitutes or Complements?’ (2007) 36 The Journal of Legal Studies, 379–394. 18. Posner, Law and Social Norms (n 3), 8. 19. For more on this point see Cass R Sunstein, ‘Social Norms and Social Roles’ (1996) Coase-Sandor Working Paper Series in Law and Economics Working Paper No. 36 University of Chicago Law School 1; Lessig, ‘The Regulation of Social Meaning’ (n 2), 947. 20. Sunstein (n 19), 8–9. 21. Zasu (n 17), 382. 22. Russell J Dalton, ‘Citizenship Norms and the Expansion of Political Participation’ (2008) 56 Political Studies, 76–84. 23. Jeffrey T Checkel, ‘Why Comply? Social Learning and European Identity Change’ (2001) 55 International organization, 553–571. 24. It is also worth noting that teens often accept or require norms to include a rejection of adult social norms. These types of teen norms are usually left behind as individuals grow into the adult workplace. See Richard H McAdams, ‘The Origin, Development, and Regulation of Norms’ (1997) 96 Michigan Law Review, 338–387. 25. Lee Rainie and Kathryn Zickuhr, ‘Americans’ Views on Mobile Etiquette’ (Pew Research Center 2015) 7 accessed 20 May 2020. Unless otherwise stated, all online sources accessed 20 June 2020. 26. ibid. 27. ibid. 77% of adults view usage while walking on the street as acceptable. 75% of adults view use on public transport as acceptable. 74% of adults view usage while standing in line acceptable. 28. See Geoffrey A Moore, ‘Crossing the Chasm-and beyond’, Robert Burgelman, Clayton M Christensen and Steven Wheelwright, Strategic Management of Technology and Innovation (5th edn, McGraw-Hill 2009). 29. Vijay Govindarajan and Praveen K Kopalle, ‘The Usefulness of Measuring Disruptiveness of Innovations Ex Post in Making Ex Ante Predictions’ (2006) 23 Journal of Product Innovation Management, 12–13. 30. Naomi R Cahn, Test Tube Families: Why the Fertility Market Needs Legal Regulation (NYU Press 2009), 20. 31. Gaia Bernstein, ‘Regulating Reproductive Technologies: Timing, Uncertainty and Donor Anonymity’ (2010) 90 Boston University Law Review, 1189–1201. 32. Kincaid (n 1), 55.

Social norms and disruptive innovations  59 33. For instance, it is hard to imagine that a minority that values child molestation would find their behaviour sanctioned by the state, no matter how small their operation was. 34. Robert E Scott, ‘The Limits of Behavioral Theories of Law and Social Norms’ (2000) 86 Virginia Law Review, 1603–1612. 35. Posner, Law and Social Norms (n 3), 8. 36. Robert C Ellickson, Order Without Law (Harvard University Press 1991) 123; Posner, Law and Social Norms (n 3), 11–14. 37. The Prisoner’s Dilemma is an example of game theory where two prisoners are given the option to confess to a crime, and the first to do so will receive leniency. It has been used across various disciplines (such as economics, psychology, sociology, and law) to demonstrate the issues within a reputation economy and map behavioural patterns. See Wendy J Gordon, ‘Asymmetric Market Failure and Prisoner’s Dilemma in Intellectual Property’ (1991) 17 U. Dayton L. Rev., 853; McAdams (n 24) 338; Posner, Law and Social Norms (n 3), 12–15. 38. Cristina Bicchieri, The Grammar of Society: The Nature and Dynamics of Social Norms (Cambridge University Press 2005), 68. 39. McAdams (n 24), 391. 40. Ellickson (n 36) 123; Posner, Law and Social Norms (n 3), 18–24. 41. Stephen A Hetcher, ‘The Music Industry’s Failed Attempt to Influence File Sharing Norms’ (2004) 7 Vand. J. Ent. L. & Prac., 10–11. 42. Sunstein (n 19). 43. Kincaid (n 1), 54. 44. Lawrence M Friedman, ‘Law Reform in Historical Perspective’ (1968) 13 St. Louis ULJ, 351–352. 45. See Lessig for discussion of expressiveness of norms. Lessig, ‘The Regulation of Social Meaning’ (n 2). 46. Tom R Tyler, ‘Compliance with Intellectual Property Laws - A Psychological Perspective’ (1997) 29 New York University Journal of International Law and Politics, 219–226. 47. John Perry Barlow, ‘A Declaration of the Independence of Cyberspace’ (Electronic Frontier Foundation, 1996) ; John Perry Barlow, ‘The Economy of Ideas’ (WIRED, 1 March 1994) ; Richard A Spinello, ‘Intellectual Property: Legal and Moral Challenges of Online File Sharing’ in Kenneth Einar Himma and Herman T Tavani (eds), The Handbook of Information and Computer Ethics (Wiley and Sons), 555. 48. Mohsen Manesh, ‘The Immorality of Theft, the Amorality of Infringement’ (2006) 2006 Stan. Tech. L. Rev., 5–6. 49. Robert Moore and E McMullan, ‘Perceptions of Peer-to-Peer File Sharing among University Students’ (2004) 11 Journal of Criminal Justice and Popular Culture, 1. 50. Chris Cooke, ‘Piracy Level Downs among Younger Consumers, Reckons IPO Stats Pack’ (Complete Music Update, 5 July 2018) 51. Michał Krawczyk and others, ‘“Piracy Is Not Theft!” Is It Just Students Who Think So?’ (2015) 54 Journal of Behavioral and Experimental Economics, 32–36. 52. Stefan Larsson, ‘Conceptions in the Code: What “the Copyright Wars” Tell Us About Creativity, Social Change and Normative Conflicts in the Digital Society’ (2012) 4 Societal Studies, 1009–1016. 53. Friedman (n 44), 352.

60  Social norms and disruptive innovations







54. Cooter (n 10), 1662. 55. ibid., 1664. 56. Tyler (n 46), 226. 57. Larsson (n 52), 1011. 58. Stephen A Hetcher, ‘Using Social Norms to Regulate Fan Fiction and Remix Culture’ (2009) 157 University of Pennsylvania Law Review 1869–1876; Hetcher (n 41). 59. Andrew Gowers, Great Britain and Treasury, ‘Gowers Review of Intellectual Property’ (HMSO 2006), 62. 60. Ian Hargreaves, ‘Digital Opportunity: A Review of Intellectual Property and Growth: An Independent Report’ (2011) 44, s5.14; The Report was challenged and its conclusions that private copying posed no harm to rights holders found to be based on poor evidence. R (on the application of British Academy of Songwriters, Composers and Authors) v Secretary of State for Business, Innovation and Skills [2015] EWHC 1723 (Admin) (19 June 2015); Thomas Dillon, ‘Evidence, Policy and “Evidence for Policy”‘ (2016) 11 Journal of Intellectual Property Law & Practice, 92. 61. It should be noted that this effect has only been determined in relation to criminal behaviour, not civil law. Tyler (n 46), 220–221. 62. Depoorter et al. (n 17), 363. 63. Iris Bohnet, Bruno S Frey and Steffen Huck, ‘More Order with Less Law: On Contract Enforcement, Trust, and Crowding’ (2001) 95 The American Political Science Review, 131–141. 64. Depoorter et al. (n 17), 367. 65. Sunstein (n 19), 7. 66. ibid., 8. 67. Melvin Kranzberg, ‘Technology and History: “Kranzberg’s Laws”‘ (1986) 27 Technology and Culture, 544–550. 68. See for instance Sony Corp of Am v Universal City Studios, Inc [1984] (464 US 417, 456–57) where the VCR was given the narrative of ‘time shifting’; American Broadcasting Companies et al v Aereo (2014), 573 US, where streaming broadcasts were linked to cable provision; Attorney General v The Edison Telephone Company of London ltd LR 6 QB D244 [1880] QB D244, VI LR where the telephone was likened to the telegraph. 69. Jonathan R Macey, ‘Promoting Public-Regarding Legislation through Statutory Interpretation: An Interest Group Model’ (1986) 86 Columbia Law Review, 223–224. 70. Comedy Central, ‘The Daily Show: With Trevor Noah’, The Daily Show (24 February 2016). 71. Citizens United, Appellant v. Federal Election Commission 130 S.Ct. 876 (2010). 72. John Burrows, ‘Academics and Law Reform’ (2013) 25 New Zealand Universities Law Review, 667–680, 673. 73. Gene M Grossman and Elhanan Helpman, Special Interest Politics (MIT Press 2001), 4; Lawrence Lessig, Republic, Lost (Hachette Book Group 2011) 4; Ronald Reagan, “Remarks to Administration Officials on Domestic Policy, 13 December 1988,” Weekly Compilation of Presidential Documents, vol. 24, no. 50, 19 December 1988, 1615–20. 74. Eoin Carolan, ‘Democratic Control or “High-Sounding Hocus-Pocus”?-a Public Choice Analysis of the Non-Delegation Doctrine’ (2007) 1 Dublin University Law Journal, 111–117. 75. See, for example, the difficulties experienced in assisting welfare recipients. C Thomas Dienes, ‘Judges, Legislators, and Social Change’ in Stuart S Nagel (ed), Law and Social Change (Books on Demand 1974), 35.

Social norms and disruptive innovations  61 76. Richard A Smith, ‘Interest Group Influence in the U.S. Congress’ (1995) 20 Legislative Studies Quarterly, 89–106. 77. Douglas Kellner and Jeff Share, ‘Critical Media Literacy, Democracy, and the Reconstruction of Education’ [2007] Media literacy: A reader 3, Chapter 1, 5. 78. ibid., 9. 79. Jürgen Habermas, ‘Political Communication in Media Society: Does Democracy Still Enjoy an Epistemic Dimension? The Impact of Normative Theory on Empirical Research’ (2006) 16 Communication Theory, 411–416. 80. Lucy A Williams, ‘Race, Rat Bites, and Unfit Mothers: How Media Discourse Informs Welfare Legislation Debate’ (1994) 22 Fordham Urb. LJ, 1159–1162. 81. ibid, 1195. 82. Yimin Chen, Niall J Conroy and Victoria L Rubin, ‘Misleading Online Content: Recognizing Clickbait as False News’, Proceedings of the 2015 ACM on Workshop on Multimodal Deception Detection (ACM 2015), 4. 83. Rabia Karakaya Polat, ‘The Internet and Political Participation: Exploring the Explanatory Links’ (2005) 20 European Journal of Communication 435; José Van Dijck and Thomas Poell, ‘Understanding Social Media Logic’ (2013) 1 Media and Communication, 2; Karen Mossberger, Caroline J Tolbert and Ramona S McNeal, Digital Citizenship: The Internet, Society, and Participation (MIT Press 2008); Homero Gil De Zúñiga, Eulàlia Puig-I-Abril and Hernando Rojas, ‘Weblogs, Traditional Sources Online and Political Participation: An Assessment of How the Internet Is Changing the Political Environment’ (2009) 11 New Media & Society, 553; Homero Gil de Zúñiga, Nakwon Jung and Sebastián Valenzuela, ‘Social Media Use for News and Individuals’ Social Capital, Civic Engagement and Political Participation’ (2012) 17 Journal of Computer-Mediated Communication, 319. 84. Simon Bradshaw, Adrian Bowyer and Patrick Haufe, ‘The Intellectual Property Implications of Low-Cost 3D Printing’ (2010) 7 ScriptEd, 5; Deven R Desai and Gerard N Magliocca, ‘Patents, Meet Napster: 3D Printing and the Digitization of Things’ (2014) 102 Geo. LJ, 1691. 85. Andy Greenberg, ‘Meet The “Liberator”: Test-Firing The World’s First Fully 3D-Printed Gun’ (Forbes, 5 May 2013) ; Lee Hutchinson, ‘3D Printed Handgun Available for Download after Successful Test-Firings’ (Ars Technica, 6 May 2013) . 86. H.R.3626 – To extend the Undetectable Firearms Act of 1988 for 10 years. Became Public Law No: 113–57; Associated Press, ‘Senator Seeks to Extend Ban on “Undetectable” 3D-Printed Guns’ The Guardian (17 November 2013) . 87. HC Deb, 3 September 2013, Vol 567, 35WH-56WH; Section 3.25 in Chapter 3 of Home Office, ‘Guide on Firearms Licensing Law’ (UK Government 2015) 24. See also Adi Robertson, ‘UK Home Office Adds Formal Ban on 3D-Printed Guns to Firearms Rules’ (The Verge, 6 December 2013) ; see updated list in ‘Firearms Licensing Law 2015 Publications - GOV.UK’ .

62  Social norms and disruptive innovations 88. “The method of manufacture is not material to this consideration.” Section 3.25 in Chapter 3 of Home Office, ‘Guide on Firearms Licensing Law’ (UK Government 2015) 24. 89. Cyrus Farivar, ‘3D-Printed Gun Lawsuit Ends after 3+ Years—in Gun Publisher’s Favor’ (Ars Technica, 17 July 2018) ; Dan Zimmerman, ‘SAF, Dept. of Justice Settle Defense Distributed First Amendment Lawsuit’ (The Truth About Guns, 10 July 2018) . 90. Habermas (n 79), 419. 91. Friedman (n 44), 353. 92. Depoorter et al. (n 17), 362. 93. Paul C Stern and others, ‘A Value-Belief-Norm Theory of Support for Social Movements: The Case of Environmentalism’ (1999) 6 Human ecology review, 81–91. 94. ibid., 92. 95. H.R. 3261, 112th Cong. (2011). 96. Matt Peckham, ‘Did It Work? “Day After” Results of the SOPA, PIPA Blackout’ [2012] Time ; Eric Engleman, ‘Google Protest of Piracy Bills Upends Traditional Lobbying’ (Bloomberg.com, 19 January 2012) ; Jonathan Weisman, ‘In Piracy Bill Fight, New Economy Rises Against Old’ The New York Times (18 January 2012) . 97. Andrea Peterson, ‘SOPA Died in 2012, but Obama Administration Wants to Revive Part of It’ The Washington Post (5 August 2013) ; Parker Higgins, ‘As Hollywood Funds a SOPA Revival Through State Officials, Google (And The Internet) Respond’ (Electronic Frontier Foundation, 19 December 2014) ; Russell Brandom, ‘Project Goliath: Inside Hollywood’s Secret War against Google’ (The Verge, 12 December 2014) ; Timothy B Lee, ‘Internet Wins: SOPA and PIPA Both Shelved’ (Ars Technica, 20 January 2012) . 98. Participating sites presented visitors with a black page that read “This is what the web could look like under the Stop Online Piracy Act. Keep the web open. Contact your representatives or find out more.” The site http://sopablackout. org/ provided blackout banners that included this and would allow visitors to click through to the main site or click on where they could find information to contact their representatives or find out more information on the protest. 99. See http://sopablackout.org/; Vlad Savov, ‘The SOPA Blackout: Wikipedia, Reddit, Mozilla, Google, and Many Others Protest Proposed Law’ (The Verge, 18 January 2012) .

Social norms and disruptive innovations  63 100. This was the opinion of Christopher Dodd, then chairman of the Motion Pictures Association of America. Eric Engleman, ‘Google Protest of Piracy Bills Upends Traditional Lobbying’ (Bloomberg.com, 19 January 2012) . 101. Netburn, ‘Google Says 4.5 Million People Signed Anti-SOPA Petition Today’ ; Dara Kerr, ‘Millions Sign Google’s Anti-SOPA Petition’ (CNET, 18 January 2012) . 102. Christopher Dodd, then chairman of the Motion Pictures Association of America. Stephanie Condon, ‘SOPA, PIPA: What You Need to Know’ (CBS News, 18 January 2012) . 103. The Department of Commerce Internet Policy Task Force, ‘Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy’ (2013), 63. 104. ‘Internet’s Dark Day: Anti-Piracy Bills Take a Beating’ (The Seattle Times, 18 January 2012) .

Chapter 4

Legislating for well-known norms Photocopying

“[Copying] has become a national disease because copying has been made so easy and speedy.”1 The term “photocopy” today is used broadly to describe methods and machines that allow us to create copies at or near their original size. This use of the term pre-dates our next disruptive innovation, xerography. The term itself became popular in the early 20th Century as a shorthand for any copy made using a photographic process and was used interchangeably with the Rectigraph and Photostat machines.2 Today’s usage of the term does not differentiate between the various methods, nor does it reference the vast impact that one method had on the entire industry. The term itself in many cases is a misnomer, as most photocopiers by the end of the 20th Century had nothing to do with photographic processes at all. Instead, they used xerography. With the advent of xerography, “photocopying” took on a new meaning. Before, processes were literally using photos to create copies. Photocopying became a generic term for any type of copying process even when it did not include photographic processes. That we continue using the term “photocopy” instead of the arguably more popular term Xerox, may be down to Xerox’s fear of the term becoming generic and therefore losing its trade mark protection. Xerography became so popular at one point that Xerox began running “anti-genericide” adverts, aimed at promoting the use of the term photocopy over people’s uses of the term Xerox.3 While the naming issue is legally interesting, of more interest is this widespread inclusion of xerography in the populace, a key indicator if its disruptiveness. Xerography’s impact goes far beyond just semantics. Few of us think much of the ability to place a paper on a copier to have a perfect copy spit out, however in the early 20th Century such a feat was nearly impossible. The office copier, the printer/copier/scanner attached to a home computer, the fax machine that doubles as a duplicator; these share a backstory that owes its existence to the persistence of an ideal that changed the modern work-flow.

Legislating for well-known norms  65

Xerography did more than just provide a better way to copy documents. Some argue that it changed “the way we worked and played.”4 However, a more pragmatic approach views photocopiers as simply a faster way of doing what was already in practice. Prior to xerography’s arrival, copying was already a necessary part of everyday business. Copies of contracts, technical specifications, and invoices were necessary. For a while the printing press performed this function, but it was impractical for business needs and in the 19th Century carbon paper almost wholly replaced its usage for this purpose.5 Carbon paper worked well for the creation of copies as the original was created, but was impractical for large numbers of copies, nor did it help if something already printed required copying. At the time, the only real solution for this was copying by hand. Hand copying was not an ideal solution. Not only did copying by hand require time itself, but the time required was increased by the necessity of checking if the copy was accurate. In providing these services, copying became a profession. Individuals sold their skills on their proficiency in “the copying of technical m[anuscripts] and ability to decipher difficult handwriting.”6 Being able to create accurate copies was a skill. Technology that assisted copy clerks and typists focused on what would create extra copies as the typist worked; mainly carbon paper, ditto machines, and mimeographs. Both machines used wax-based stencils to create masters for the copy process but were incapable of multiple copies at one time.7 Due to the nature of the wax-based stencils, masters would eventually degrade and have to be recreated. In 1964, the expected job for ditto machines were 200–300 copies,8 within the expected tolerance of a single master. These machines were found in workplaces but had limitations. A big one was that they were only capable of reproducing text or writing. Copying imagery was problematic, particularly if more than one copy was desired. Even handwriting was difficult for the mimeograph. To copy an image required painstaking hand-copying or resorting to costly photographic methods. The closest predecessors to xerography were machines that used photographic processes to create copies. Two of the more popular models were the Rectigraph and Photostat. Both of these machines used photographic chemical processes in conjunction with specially treated photographic paper to create copies. The machines themselves were extremely large, required the usage of a dark room, trimmers for the excess, and specially treated photographic paper.9 Beyond space requirements, these machines also required specialised training. Photographic paper was expensive, the process to develop it required skill, and the chemicals used were noxious and could be toxic. This meant that much of the usage of Rectigraphs and Photostats happened in specialist copy shops and not in offices. None of these options provided easy, cheap copies for all purposes. A number of copying and duplication

66  Legislating for well-known norms

machines were released close to 1950,10 demonstrating the market’s need for better solutions than the established copying techniques available. Chester Carlson’s patent on “electrophotography” was one of the rare patents that referenced no prior art.11 He understood the importance of protecting his interests and using the patent system to provide himself and his partners with the time necessary to develop a working innovation.12 Xerography’s success is even more impressive when considering the challenges Carlson faced in finding a successful way to market his innovation at a time when disruption was neither understood nor sought after.

Early development period pre-1959 Most discussions on xerography start with Chester Carlson’s breakthrough in 1938, briefly touching on the first commercial Haloid machine in 1949 and then skipping straight to the success of the Xerox 914 in 1959. It is natural to talk of the “dramatic invasion” of a new technology as if it had burst fully formed onto the mainstream market, but this ignores the usually significant period of development within a smaller, niche market.13 Beginning with the Xerox 914 fails to explore the development period for xerography which was longer and is indicative of a disruptive innovation. One of the consistently identified characteristics of disruptive innovations is that there are generally good reasons why a management team would ignore the disruptive option in favour of a sustaining technology.14 This was the case with xerography. Lewis Walkup from Battelle said that xerography had “many stages in its development at which any sane management committee would have been justified in turning it down.”15 Xerography had potential but lacked sufficient success to gain supporters or orders in its early years. Xerography presented itself to managers as something different, difficult to predict, and therefore it was difficult to ascertain its monetary value. This is the classic presentation of a disruptive innovation. Xerography is typical of disruptive innovation. A small company whose product was ignored by the big corporations, the difficulties in finding a market, the cost factors that greatly reduced with the introduction of xerography, the expansion of customers who could use the product, and most importantly, the change in the performance metrics of copying.16 All of these factors point to a case of disruption. In 1938, Chester Carlson was determined to create an office copying machine for the masses. He began working with Battelle and Roland M. Schaffert. Schaffert not only saw the commercial potential but identified two key issues in bringing xerography to the standard the market would accept, a sharper image and a workable technique for printing sharper images consistently.17 Haloid Company, which would ultimately be renamed Xerox, joined the effort in 1947.

Legislating for well-known norms  67

It took two years to produce a workable machine, though nothing was automated. In 1948, with a view to commercialisation, Haloid felt “electrophotography” needed a new name. Xerography, meaning “dry writing” in Greek, was felt to be more marketable and unique.18 Armed with a new name and the determination to find a market, xerography was presented at an Optical Society of America meeting that year.19 The process was much the same as it had been when Carlson first sought business partners ten years earlier, but the reception was far different. Carlson and his process became an “instant celebrity.” Flush from their success at the Optical Society, Haloid and Carlson released the Model A in 1949. The Xerox Model A was released to little fanfare and even less profit. With over 4 dozen manual steps, finicky photoreceptors, and an inability to print on both sides, the Model A was a dismal failure. Despite the excitement at its release, all of the Model A field test machines were returned promptly with the dooming pronouncement that trained secretaries were capable of producing copies in less time than it took the Model A.20 Carbon paper and the Photostat, what the Model A was intended to replace, were safe. Xerography’s development was next pushed by Haloid’s competitor, RCA, with the development of the Electrofax in 1953, a machine that used xerography, but still required specially treated paper, a major drawback. Other competitors for the office copier market began to emerge such as 3M’s Thermo-Fax and Kodak’s Verifax, although no other company based their product on xerography. Haloid’s next-generation machine was the Copyflo 11 which finally enjoyed the benefits of automation even though its size and copying restrictions left something to be desired. Launched in 1954, the Copyflo 11 was little more than a microfilm enlarger despite improvements. Too large and cumbersome but able to make clear prints, the Copyflo wasn’t a competitor for the Verifax and Thermo-Fax.21 Xerography would eventually beat these competitors,22 but it took a further ten years and an entirely new machine before commercial success became apparent. Social norms and devaluating the act of copying The question of social norms and regulation in the case of xerography is difficult. Looking for social norms in photocopying, it is difficult to differentiate how much came directly from xerography as opposed to xerography’s predecessors. The development of social norms surrounding photocopying grew up with not just with xerography, but its predecessors the Photostat, Rectigraph, and even carbon paper. Xerography tapped into existing social norms as well as creating new ones later on. Clear social norms surrounded copying existed in the 1950s that were not xerography dependent. One of those norms is the acceptance and even desire for automation as a way of progress. As far back as the 19th Century,

68  Legislating for well-known norms

politicians believed that mechanical reproductions would assist in reducing the number of copyists in the civil service.23 The efficiency ideology did not die in the 19th Century, and both the mid-20th Century and today’s business world search for efficiency savings. While efficiency itself is not a social norm linked to this technology, the ideology underpins much of the wisdom of the business world and has had a significant influence on the norms surrounding copying. It is unsurprising that the ideology of efficiency was linked to office machinery in the search to control expenses by driving down wages.24 Business copying is a norm that is prevalent in both advertising and literature. From the advertisements for copying jobs in the early ’50s to the advertisements of Xerox in the 1960s, businesses were copying documents regularly.25 Copying was initially a legitimate profession going back to the Middle Age monks, like St. Columba, from whom copyright is said to derive. This changed with the introduction of xerography. One specific norm that came from xerography and other copy machines was devaluing of the work involved in creating copies. This is not the discussion of whether more copies devalue the original work. This is about the physical act of creating a copy and how that work is viewed. It is clear that the way copying was advertised changed over the first ten years of xerography’s existence as a viable technology. The early 1950s saw regular postings available seeking copy typists whose work was primarily to create new copies. Many of these copy jobs were based around invoices and other general office documents as this type of copying in the workplace was common. It was accepted practice and has continued to this day. By 1955, most of the positions listed specifically for copy typists came from public appointments, which might indicate that the private sector was beginning to focus on automated solutions such as xerography, the Photostat, and Rectigraph. By 1960, the term “copy typist” was used more by those seeking work than by employers seeking fulfilment of such a position. The type of copy-able document had shifted, and by the 1960s, something as simple as CV references were being paid for and acquired by job seekers. This was reflected in the adverts of the day. Requesting references was an inconsistent feature in job adverts in 1950 and requests for copies of references were sporadic at best. As the ’50s progressed and adverts for copy typists slowed, there was an increase in the number of advertisements that sought “copies of references” as opposed to merely “references.”26 However, by the 1960s, requests for copies of references were common, Xerography made the previous jobs based around copying difficult to sustain. Photostat operators had been specially trained to duplicate through photographic processes. Copy typists painstakingly copied items by hand. Xerography took much of the skill in creating copies and shifted it into automation. As one author wrote, “the trend toward mechanisation

Legislating for well-known norms  69

of information has started.”27 The cheap access to copies made the public value the work that went into copying less. The ability to create quick, accurate copies was valued and marketable but faded as automation took over. The skill that was once recognised and sought after became a part of other’s work. While the profession continues to exist today, copy typist work is often incorporated into the work of other positions. From this one can conclude that copying, in and of itself, was not significantly viewed as wrong by the public. These attitudes may reflect the fact that this type of copying did not produce copies of copyright works on a large scale. Library copying and the gentleman’s agreement The greatest amount of copying at this time occurred in the library. Libraries held a unique position. The right to copy excerpts and portions of texts for research and study had been enshrined in British copyright law,28 and this personal use existed in both the United States and the United Kingdom.29 For some time, the practice of students and researchers had been to enter libraries and copy by hand relevant research, a practice that still continues. While this right wasn’t limited to libraries, the invention and provision of automated copying machines by libraries brought the library’s position into starker light. Libraries became gatekeepers in two ways with xerography. Not only were libraries gatekeepers for the copyrighted works on their shelves, but they also became access points for xerographic machines outside of businesses. Copying machines were expensive and cumbersome in the 1950s. They were primarily marketed at and bought by large organisations, including libraries. Increased access to copying facilities changed the services libraries could provide.30 Copying as a service began due to xerography and other copying machines. Copying machines and the xerographic machines that came later were primarily marketed as office work copiers,31 however, copying of copyrighted works did occur. Questions began to arise as to how much could or should be copied, possible evidence of norms highlighting laws that may need revision. Libraries were already in the habit of sharing documents. By the mid1950s, libraries were providing photocopies to distant scholars. Additionally, libraries were and had been readily exchanging photocopies of books globally for some time.32 This was not just the practice of public libraries, but also trade libraries and in journalism to disseminate news. Improvements and wider usage of the fax machine during this period allowed libraries to provide copies quickly to readers on a global scale.33 American librarians were aware of the threats that various copying machines presented to journals and other rights holders, and felt they could

70  Legislating for well-known norms

adequately deal with issues under current copyright law.34 Rather than avoid these technologies altogether, libraries implemented their own policy on photoduplication, looking back prior to the invention of xerography to the principles in the Gentleman’s Agreement in 1937.35 The Agreement, although lacking in legal footing, served as a guideline for libraries and attempted to create solutions that allowed them to provide copies without unduly impinging on rights holders’ rights. In the absence of decisions on whether “fair use” applied, libraries built their own vision of what was an appropriate balance between copyright holder rights and the public. Not all rights holders or librarians were happy with the status quo of the Gentlemen’s Agreement, and a number of stakeholders, including researchers themselves and other archival specialists like museums, did not have their interests represented in the Agreement’s negotiation. Rights holders consistently pushed for greater restrictions on libraries copying, whether it was providing the facilities or providing the copies.36 In turn, the question of implementation and determination of fair use provisions was felt deeply by librarians who “resent[ed] being made into mixtures of policemen and accounting departments.”37 The Gentleman’s Agreement had been made prior to the invention of xerography, and with the mass production of copies now possible the question of whether these solutions were still acceptable was a live one. While the Gentleman’s Agreement had issues, it was a solution that attempted to deal with the question of copying machines in the absence of legislative guidance. This could demonstrate a need for copyright reform, except that it came from xerography’s predecessors. The Agreement would remain in place for nearly fourty years before legislative changes made it obsolete. The acceptance of the norm of personal copying for research and study had ramifications in the provision of copy services. By the 1950s this service was readily available, and more were expected due to technological changes.38 Bowrey puts this norm down to copyright as an enabler of social good, education, art, and culture.39 Librarians interpreted this mandate and the law widely to allow access to full copies of texts to patrons. No indication is made in legal discussions that this practice should be forbidden in totality. In contrast, there is evidence of this as an acceptance of this norm in the discussion in both jurisdictions on the appropriate balance of copying services against the rights of others. Accepting these norms is mentioned in both British Parliamentary debates and Congressional reports.40 In the United States prior to the 1930s, the copying done by hand in libraries was thought to be outside the scope of American copyright law.41 The question of whether this extended to copies created through mechanical means was less obvious. The 1909 Copyright Act had no express prohibition regarding photo-duplication, and at that time the Library of Congress allowed photographing of copyrighted articles.42

Legislating for well-known norms  71

These norms existed well before xerography. The general forms of these norms were not entirely new when the UK legislature tackled copyright reform in the 1950s, but by the time the United States finally came to it in the 1970s the norms of automated library copying were well established. Whether enshrined as an actual right or not, these norms and their acceptance in the legal community influenced the structure of the law that followed. Existing early US law Despite neglect from the legislature, American copyright law had been active and changing through this period as judges dealt with the issues that arose from both the new technologies of the time and the language difficulties inherent in the governing Copyright Act43 of 1909 itself. The period between the 1909 Act and 1955 was litigious, partially due to poor drafting of the Act itself. As one commentator stated, “[a]nyone who has had to deal with the Copyright Act of 1909 must stand in awe of the ability of the framers to toss off a sentence that can have any number of meanings.”44 This, combined with the influx of new technologies over fifty years since the 1909 Act’s inception lead to numerous cases dealing with basic questions such as renewal rights, the rights of lawful possessors of copyrighted goods, and the question of mechanical reproduction.45 By 1952, basic issues with the Act, such as infringement remedies, were still making their way through the Supreme Court.46 A certain amount of conflict was a baseline when dealing with the 1909 Act. There had been no major revisions to the 1909 Copyright Act since its passing, despite numerous technologies whose usage challenged traditional copyright models, such as television and radio, having come to prominence. A number of acts revised the 1909 Act between its passage and the beginning of the 1955 Copyright Office studies,47 however, most were merely technical in nature and none had significant changes to the law. Most efforts focused on bringing the law into line with the Berne Convention, but despite these efforts, the United States would not sign the Berne Convention until 1989. Two bills had been proposed in the 1940s to provide a legislative solution to the question of library copying, however, neither made it into law.48 In 1952, the Universal Copyright Convention was signed by fourty countries including the United States, however, its ratification would require significant changes to copyright law in order for the United States to comply with the Convention, particularly in respect of copyrights created by citizens of/or in countries of fellow signatories.49 During the discussions surrounding the Universal Copyright Convention and its adoption, it became clear that the copyright regime in the United States needed updating, an opinion that was widely accepted.50 In an effort to move copyright reform ahead, the US Copyright Office began sponsoring a series of thirty-four studies that considered revising copyright law on behalf of the Senate Judiciary Subcommittee on Patents, Trademarks, and Copyrights in 1955.51

72  Legislating for well-known norms

Into this question of copyright reform stepped the nascent photocopier. In 1955, as the studies surrounding copyright were just beginning, xerography had existed for seventeen years. Legal commentators identified that xerography and similar technology necessitated “a reexamination of the law of copyright, in connection with the private reproduction of copyrighted materials.”52 While xerographic machines were on the market, it wasn’t a commercial success yet and copyright reform would wait another twenty years before being enacted in the United States. However, the United Kingdom did not wait. Existing regulation in Britain The British Parliament tackled the question of photocopiers before xerography was a success as part of a general copyright overhaul in the 1950s. Prior to this update, the Copyright Act of 191153 was the governing law in Britain, but by the 1950s the Act was beginning to show its age. The Copyright Act of 1956 came from a number of factors. In 1952, the Universal Copyright Convention was adopted with Britain as a signatory.54 However, this presented difficulties as some aspects of British copyright law ran contrary to the Convention. Copyright reform became a priority for Parliament shortly thereafter. Adherence to the Universal Copyright Convention was a significant factor, alongside the 1948 Berne Revision.55 The 1948 Berne revision required changes to UK law to eliminate qualifications that could alter the time period for copyright, namely, the ability for a work to be republished in the last twenty-five years of the copyright life by anyone who paid the copyright owner a ten per cent royalty,56 and the power of the Judicial Committee of the Privy Council to override any refusal of republication after the death of the author.57 These were considered incompatible with the 1948 Berne revisions, even though the United Kingdom already had the requisite author’s life plus fifty years period of protection.58 From House of Lord debates on the Copyright Bill in late 1955 and early 1956,59 it is clear that the driving force of the reform was to make British law comply with their international obligations. While the Berne Convention updates in 1948 were a concern and ultimately became a part of the reform agenda and copyright texts discuss the Berne Revision as significant to copyright reform, the actual discussion in the House of Lords almost exclusively discussed adherence to the Universal Copyright Convention. This was considered important due to America’s continued non-adherence to the Berne Convention. As long as America was not a member of the Berne Convention, it was impossible for a British copyright owner of an English language work to obtain copyright protection in the United States without complying with the requirements that his work must not only be registered but (I use the horrible phrase) “manufactured” there.60

Legislating for well-known norms  73

However, American authors could easily gain copyright protection in Britain by publishing their works in the United States and a Berne country (such as Canada). The Universal Copyright Convention, which the United States ratified in 1954, provided a different avenue for British copyright owners to gain protection. This ability was focused on in the debates, with members of both the government and the opposition61 focusing on “signing” the convention. As the Berne Convention was already ratified by Britain, these references must be for the Universal Copyright Convention. References to adherence to “international obligations”62 or signing the convention63 were prevalent on both sides of the debate. Parliamentary debates show that international pressures were not the only relevant factor. Of equal frequency to that of international obligations was the undercurrent that there was “uncertainty of current legal position” and representations by the librarians who “do not know where they stand,”64 while members of Parliament sought clarification on what would constitute an infringement. Legislators also discussed the technological advances of the day.

Legislating for technological advances in Britain Xerography and its precursors were a part of the technological shift that pointed towards a need for copyright reform. Legislators took the opportunity to consider technical advances, with careful and cautious management. The House of Lords noted that copyright was having difficulties due to the “scientific advances which have been made since 1911 in the fields of photocopying, recording, and broadcasting.”65 These difficulties were a part and parcel of the conflict that copying norms had found with existing law. Many of these scientific advances did not exist in 1911, and, while sound recordings were protected to some extent and films were protected as photos, the argument that copyright protection should be extended to specifically cover these mediums was logical. Much of the debates covered the creation and scope governing copyright and these new advances. Photocopying was perhaps the least disturbed of these, in that it was clear that copies of literary works were covered under the 1911 Act save the fair dealing provisions. Section 2(1)(i) of the Copyright Act 1911 provided a fair dealing exception for “the purposes of private study, research, criticism, review, or newspaper summary.”66 However, the question of how much copying was acceptable and who could do the copying was debated. The House of Lords recognised the “expansion in recent years of methods of photocopying in libraries”67 and the “advantage,”68 “boon,”69 and usefulness that photocopying could be to scholars and researchers. Lord Chorley, in supporting greater freedoms for libraries to provide copies, went so far as to imply that photocopying was a “method” of research.70

74  Legislating for well-known norms

One of the larger issues at hand was the question of whether libraries could copy on behalf of an individual. This was a problem specifically dictated by the progress of technology and the advent of Photostat and photocopying machines. Copying for research purposes was viewed with great acceptance, meaning that there wasn’t the same obvious conflict as the acceptance existed despite possible illegality. Even as Parliament debated the question of copyright, they spoke of the need to copy for research purposes with respect.71 It was an “immemorial right of the student to go and copy what he will from the library.”72 Photocopy methods were viewed as a “great advantage”73 and a “much more convenient way”74 for students to copy research articles. The acceptance certainly held sway for public libraries and “genuine” researchers and students, but there was debate over whether it extended to trade libraries as some concern was expressed that a library might be created for the purpose of profiting off of the provision of photocopies.75 Ultimately, the fair dealing exception for private study and research was kept in the 1956 Act, although section 6 added significant clarification.76 There was also a recognition of the fact that photocopying could be used by firms to spread information widely, and a “suspicion”77 that such practices were already occurring. Indeed, adverts of the day bear out such suspicions with Rank-Xerox themselves establishing a copy service in their offices and showroom in London in 1957.78 While there were mentions that the law “require[d] change”79 due to broadcasting and photocopying, the more pressing reason appears to have been the need to conform with international obligations from the Universal Copyright Convention. Technological advances as a reason for reform was mentioned less than half as many times as the need to conform due to international obligations. All of this was not just interest by legislators, but concern by rights holders. Even with the concern for rights holders, that was not the primary concern of legislators. The debates focused on the question of copying by libraries, where the volume of copies produced was significantly greater than that of individuals. This is likely due to the fact that at this point in time, xerography was still very expensive and marketed solely at firms. While individuals could use photocopiers, the majority of the usage of in the mid-1950s was done during the course of business, and the concerns of the legislators reflect this reality. Despite considering an incomplete picture, legislators carefully considered the implications of photocopying. While the norms for xerography on the surface do not appear to have been a factor in the development of copyright law in Britain, they were there in the social norms that existed for copying in general. The acceptance of copying in business, research, and study was both widespread in the public and was referenced in the parliamentary debates. These norms helped shape the copyright reform that occurred in the 1950s. The acceptance of these norms was enshrined in copyright law and they were not removed,

Legislating for well-known norms  75

even though the possibilities that xerography provided were clearly known. However, the social norms were more fully formed, and noticed by legislators, allowing them to incorporate the norms into their reform. The establishment of social norms that xerography tapped into was visible enough and understood, allowing legislators to consider it fully. Interestingly, all of this occurred before xerography significantly impacted the market in 1959, the main push for xerography in the United Kingdom. This suggests that the norms for xerography were actually linked to previous technologies. It suggests that where norms exist for prior technology that legislators can effectively create future technology-proof law which will work for some time provided that they are conscious of the norms and the law’s interaction with them.

Disruptive period development 1959–1970 Automation was the future of business efficiency proclaimed the Scientific Correspondent of The Observer in 1957.80 That automation included the facility to produce high quality, low cost, accurate copies. Xerography was a massive technological leap, creating a new duplication process that could replace photography and be used in ways that existing processes could not. Despite scepticism from their competitors, Xerox machines became staples in businesses everywhere. Copying was not just part of business, it was big business in itself with profits jumping by $20 million from 1959 to 1963.81 Success happened during this disruptive period, but improvements took years to allow xerography to become competitive with photographic market leaders. This jump in usage naturally produced new challenges socially and legally. It was 1959 before the first convenient office copier was introduced to the market. The Xerox 914 was the first machine to fully realise Carlson’s vision,82 although it did not translate into immediate success. IBM and Bell & Howard both looked at the Xerox 914 and were uninterested.83 Studies commissioned by Haloid’s board showed bleak prospects for the office copier with an Ernst & Ernst report estimating that the market would saturate at 4,000 units.84 Unlike the Model A, whose impact was only felt in fringe segments of the photocopying market, the Xerox 914 was squarely aimed at creating an office copier market. Xerox aggressively marketed the Xerox 914 and its sister, the Xerox 420, at offices that would have relied on outsourced photographic processes beforehand. Xerox sold the 914 as the “most versatile and efficient copier in the world.”85 Despite predictions, success was swift and moved rapidly. The Ernst & Ernst report grossly underestimated demand, and 250,000 Xerox 914 mainframes were built. In 1960, demand for xerographic machines was rising particularly due to the convenience and cost.86 By 1962, one in four copies in

76  Legislating for well-known norms

America were made with xerography.87 By 1966, “tens of millions of copies a month” were reportedly being made on Rank-Xerox machines in the United Kingdom.88 Our primary requirement for disruption is that a technology changes or creates new performance metrics upon which companies compete. For office copying, two metrics were important – fidelity/accuracy and time. The Model A produced copies that were less accurate than a Photostat or Rectigraph but could produce more pages within a smaller timeframe. The Xerox 914 still had some accuracy issues but had ironed out many of the issues of its predecessor, bringing the time and accuracy into an acceptable range for consumers who merely required copies that were legible and faithful. This is consistent with how disruptive innovations work – by providing customers who are not the mainstream users of the current technology with enough workability to fit their needs. Xerography became the new standard in copying, changing the standard from duplication to copying. Previous incarnations of photocopying machines required a “master” from which to make the duplicates – whether that came from a photographic negative or the creation of a typeset. Duplication methods could not easily create smaller or larger copies of masters without distortion and difficulty. Carlson was aware of the difference, insisting that his process was copying, as opposed to duplicating.89 The artificial difference between copying and duplication became lost in common usage, but the shift to “masterless” copying was a significant technological leap. Xerography eliminated the need for masters altogether. Everything already printed became its own master. This eliminated the costly step of creating a master or stencil from which to print. Xerography allowed enlargement or reduction in the size of documents.90 Print runs prior to xerography would generally include an order for more copies than were necessary, which might end up as a waste but was the better option than having to recreate a master at a later date.91 Further, xerography eliminated the costly need for checking and re-typing duplicates where errors occurred.92 This alone saved companies time and money, proving xerography the cheaper, more efficient copying technique. This change from duplication to copying seems minor in linguistic terms, but it was a massive change to the parameters of competition. This was a major change between competing companies, and those unable to shift from duplication to copying found their products falling by the wayside. Accessibility and new business practices The Xerox 914 and 813 were the first the desktop copiers using normal paper making copying easier and faster than ever.93 Accessibility was a significant factor for xerography’s success. A major selling point was that a company’s

Legislating for well-known norms  77

existing staff were capable of using xerographic machines.94 This accessibility had been touted before when the Photostat and Rectigraph had first appeared on the scene. However, while workers could be taught to use the machines, companies found the outlay for a dark room and specialised equipment difficult to justify. An appetite for duplication services (particularly surrounding preserving unavailable texts and rare books) already existed and with it a market, but photocopying services were not in every office.95 Xerography ultimately met that market’s need, bring copying services to businesses that would never have used a Photostat or Rectigraph before. New business practices began to emerge with xerography. Formerly the realm of trained staff, by 1966 the “self-service” model of copying that we know today was being used in businesses across the globe.96 This period also saw the beginning of fillable forms, where fixed and variable data could be easily entered and copied. Other ventures saw Xerox selling to engineering companies, touting their product’s ability to apply “modern data processing methods to the drawing office”97 or even just providing better ways to store large engineering drawings.98 The applications of xerography were far greater than originally anticipated, opening up fields like xeroradiography and ionography. More relevant to the copyright market, numerous “secondary services” began to grow with xerographic availability.99 These secondary services provided details of the table of contents to users who then could determine whether they wanted certain articles. The services did not provide the articles themselves, however ordering just an article not a possibility from most publishers. These services could only exist with the possibility to obtain a photocopy of articles. Interestingly enough, the business model of the photographic manufacturers became the predominant business model of the copying industry in modern times. Today, the business model of making money based on the renewable resource has been brought forward to the photocopy industry with Canon, Epsom, and HP now selling cheaper printers and replacing the revenue with low-ink cartridges.100 What the photography executives could not see was that their own business model could be applied to xerography, a lesson that Xerox would take to heart once xerography became a success. The library question Xerography found itself the centre of a controversy on copying done in and by American libraries. This conflict would eventually find a place in the library photocopying exception of the 1976 Copyright Act.101 With the background of copyright reform in the air and the increase in duplication services, it was clear that photoduplication (including xerography) concerned authors of copyright works as well as publishers.102 While there had been debates between librarians and publishers on the issue for years, it was clear

78  Legislating for well-known norms

that the question of fair use and library/scholarly copying was something that had not elicited much in the way of either scholarly legal texts or litigation to guide the Copyright Office’s inquiries. As in Britain, research and library copying was seen as necessary for effective research and the development of photocopying methods was described as “indispensable” in 1959103 as the Xerox 914 was hitting the market. The 1961 Copyright Register’s Report stated the problem thus: Scholars have always felt free to copy by hand from the works of others for their own private research and study. Aside from the impossibility of controlling copying done in private, the acceptance of this practice may have been based on the inherent limitation of the extent to which copying could be done by hand. But copying has now taken on new dimensions with the development of photocopying devices by which any quantity of material can be reproduced readily and in multiple copies.104 This statement reflects the beginning of a modern copyright quandary that has continued through to the question of digital formats today. Using the Gentleman’s Agreement as a basis to work from, the Copyright Office considered the current position of xerography. Affirming the general principle that photocopying should not compete with the legitimate copyright owner’s interests, the Register’s Report suggested a statutory provision for public libraries to provide single copies of copyright works under specific conditions.105 These conditions were that the library could only provide a single copy where it would be used for a person’s own research, the publication was not otherwise available from the publisher, and the library would ensure that a warning that the material was copyrighted was to be attached to the photocopy. The largest legal question regarding xerography and copyright focused not on individual usage, but the consideration of mass infringement. Study 15 produced by the Copyright Office focused specifically on the difficulties experienced with what they called “photoduplication” of copyright works.106 The authors of the study noted not only the difficulties in expecting researchers to hold subscriptions to all relevant journals and periodicals but also the impracticality of expecting libraries to be able to adequately provide sources to researchers based solely on loans.107 Added to the issue was the worry surrounding library preservation activities, which included photocopying newspapers and rare works. This was complicated by the usage of photocopies being provided through interlibrary loans. Libraries continued to work in a grey zone until the passing of the Copyright Act of 1976. Generally operating within the bounds of the Gentlemen’s Agreement, libraries almost wholly felt they were complying with the “fair use” provisions of copyright law.108 Rights-holders did not always agree. As was pithily stated, “[a]t the heart of the problem, of course,

Legislating for well-known norms  79

is not just what is fair use but how much use of fair use makes it unfair use.”109 Despite the copyright studies in the 1960s, these did not immediately produce any definitive answers from the legislature. Copyright in America would languish a further ten years before reform occurred.

Mature technology period What were fears in the British Parliament, were seen as fully realised problems for publishers by the time the 1970s came around. The lack of a need for a master and the low cost of copying was seen as a direct threat to publishers who decried losing a sale “because of the new technology.”110 But the publishers weren’t the only ones upset at xerography’s success. Amongst the legal profession, dismay at the amount of copying produced by xerography was expressed. At least one English High Court judge, Mr Justice Lawton, reputedly said the amount of paperwork created through xerography as “choking” the administration of justice, a “forensic menace,” and complained that as “[t]he pile of paper gets higher, the trial gets longer, and the jury gets more and more confused.”111 Xerography based copying alone accounted for around fifty billion copies a year by 1975.112 In fact, xerography was so dominant in 1975 that it found itself in an antitrust agreement with the FTC after accusations of monopolising the US market for office copiers.113 By 1980, Xerox was leading the copying industry with their copiers and printers.114 Xerography in the disruptive period was focused on work in institutions and businesses, but as a mature technology, it created a new business model that allowed individuals greater use in the early 1970s in the form of copy shops. Culture began to grow up surrounding the usage of xerography, producing new norms. Xerography machines changed how individuals viewed what could be copied, expanding the type of copy-able documents with the new accessibility.115 In the 1960s and 1970s, xerography provided a new medium for artists,116 as well as opening up communication possibilities. Xerography was “a form of pre-digital social media,” referring to its ability to enable users to generate share and exchange information cheaply.117 Anyone and everyone who wished to copy something was capable of doing so. Further, new publishing opportunities were opening. The self-made publisher was becoming a possibility. Xerography’s accessibility threatened to disrupt the status quo for normal publishers, although the impact of this had not yet been felt significantly. Publishing, a traditionally centralised market, faced the prospect of decentralisation as xerography allowed anyone to assemble, print, and publish any material.118 This cultural shift happened after the British copyright reform, but its impact in the United States began to be seen quickly. As one commentator said, xerography machines found a ready market, partly because they filled a genuine need and partly, it now seems clear, because they and their

80  Legislating for well-known norms

function exercised a powerful psychological fascination in their users. In a society that sociologists are forever characterizing as “mass,” the notion of making one-of-a-kind things into many-of-a-kind things showed signs of becoming a real compulsion.119 This cultural change was wider spread than simple office workers. Access to photocopiers was easy and with it brought new opportunities for individuals. This mass culture aspect provides us with new norms. General copying machines had already provided new avenues for spreading opinion, but xerography broadened their possibilities beyond institutions to the individual level.

US legal history surrounding xerography In many ways, the British tackling of copyright reform in the 1950s120 was a prelude to that done by the Americans in the 1970s. America’s statute had many of the same issues as its British counterpart. By the time Congress acted, xerography was a mature technology, well understood, and no longer seriously disrupting the copying market. Despite the copyright studies in the 1960s, there had been no definitive answers from the legislature. One argument that delayed action by Congress was that “none of the photographic processes can compete with the book in print either in price per page or convenience of use.”121 However, that statement was made in 1956, and by the time it was quoted in the Copyright Office’s Study 14 on Fair Use in 1960,122 it may not have represented the opportunities xerography had provided in the intervening years. Excluding the libraries who provided copies for free, Xeroxed copies were unlikely to compete with traditionally published books, but those who wanted single articles of periodicals found it far cheaper than annual subscription fees.123 The overwhelming majority of what was copied in libraries at this time was periodicals not books.124 Despite this, in 1975 it was felt that publishers were unable to put forth successful arguments that photocopying was destroying the journal business. The question of private copying and fair use was one that the Copyright Office’s study had found arguments for and against but could find no authority as to the actual legality either way.125 The question of fair use in photoduplication was accepted by the Copyright Office as one that could not be determined in the absence of litigation while there were efforts to regulate the ability of libraries to provide copies of materials. Conflict continued, with the courts tackling what was and was not appropriate with regard to library copying. The case of Williams & Wilkins Company v. United States126 made its way through the courts as Congress was debating the new Copyright Act. Williams & Wilkins published medical journals and challenged the photocopy schemes of the National Institutes of Health and the National Library of Medicine. Of note, both institutions had restrictions that prevented entire journals from being copied with limits for

Legislating for well-known norms  81

specific patrons. In their decision, the courts inextricably linked photocopying for research purposes and fair use to the common good, although it is important to note that this case was decided based on the 1909 Act which read that copyright was “[n]ot primarily for the benefit of the author, but primarily for the benefit of the public.”127 If photocopying were to be prohibited in this case, the harm to the academic medical community would far outweigh the possible losses to the rights holders. While this isn’t legislative, it does put a firm link between fair use and social goals and happened concurrently to the discussions on copyright reform. Xerography is uncommon in being a technology that was specifically singled out and considered by American lawmakers when updating copyright law. At the time of reform in 1976, xerography had been commercially successful for seventeen years. The question of how much usage was still fair use proved slippery for Congress. It seems that the concern regarding photoduplication and the lack of definitive answers on how much was being done continued even after enactment of the 1976 Copyright Act. In 1976, a contract was awarded for investigating the costs to rights holders caused by library photocopying. It was designed to attempt to determine “the incidence of library photocopying; determine patterns of serials copying in lieu of interlink army loan; and pin down the probable costs of administering a transaction-based royalty system.”128 This type of research has been repeated, both prior- and post-1976 Act enactment, focusing on various technologies and sectors, including new digital formats. Considering the numerous studies and the time taken to consider the impact of xerography, it is clear that US legislators practiced careful management of the technology. Very few technologies have had as much legislative effort in background research and in documentation as xerography. This careful management by Congress can be seen as a success story, even if the purpose was more a desire to reform copyright than deal with the disruptive innovation.

Xerography’s social norm influence on the law Xerography tapped into social norms that already existed. Significant social norms surrounding copying were known in the 1950s and 1960s before xerography took off. While there were some additional new norms, the primary norms for xerography predated both the British and United State copyright reform efforts. Those social norms would play a factor in later legislation. Because the norm creation was earlier in the innovation’s cycle, even the UK legislators had a good handle on the norms at play. While some social norms and business norms were developed later in the development of xerography, most of those relevant for legislative purposes were ones that continued from previous copying technologies. The ability to point to xerography as merely a

82  Legislating for well-known norms

“new” version of existing technology, even if the actual process is entirely different, allowed for easier parallels to previous issues and norms. Due to this understanding, more understanding and acceptance of these norms in the legislative process existed than expected. The impact on copyright by xerography was identified early, possibly because it was an understandable problem. One of the results of having norms similar existing before a technology is legislated is that rights-holders are able to raise the issues directly and with concrete examples. Rights-holders could identify xerography as posing greater challenges to their rights citing evidence with previous copying technologies. For example, even though xerography did not exist when the Gentlemen’s Agreement was adopted, the issues and norms at play there were the same or similar to those that prompted the Agreement. Even if the evidence was not borne out by legislative enquiries,129 the fact that examples existed provided a better starting point for law reformers. In the broader context, xerography offers an interesting insight into what happens when a disruptive innovation taps into well-known social norms. Xerography’s popularity and widespread use emphasised that these were norms that required consideration. Perhaps more interesting is that it was the widespread use of xerography that caught notice. Rights-holders, while concerned about other copying technologies, were clearly far more concerned about the Xerox 914 and its kin. With the interest of a protectable group, rights holders, whose concerns were predicated on norms that conflicted with existing law, we see a confluence of all three factors that drive legislative interest and reform. Throughout xerography’s development, the norms surrounding it pointed to conflict with copyright law and a need for reform. Both jurisdictions were able to identify xerography as a technological progression that spurred legislative reform. That reform came primarily due to other reasons, but xerography and the social norms it tapped into were significant enough to warrant specific discussion. This led to both the UK and US legislatures taking care in their deliberations on legislating around xerography’s use. Even if xerography did not inspire the Congressional studies by the Copyright Office in the 1950s, they certainly took the opportunity to address the situation that was growing with the addition of xerographic copying processes. Similarly, the future of xerography was addressed by the British Parliament in their own fair dealing exceptions. Both the Congressional studies and the UK Copyright Act 1956 came before xerography saw true commercial success. Both solutions came out of a recognition of the acceptance of personal use copying and acknowledged the current norms in existence. With a good understanding of these norms, legislatures were capable of creating fit for purpose legislation that took into account the needs of rights holders, societal needs, and the rights of the public.

Legislating for well-known norms  83

But what happens where a legislature does not have a mature technology or well-known norms? The success of the legislation surrounding xerography came heavily from the ability of legislators to understand the technology, its market, and its social impact. This is a luxury not always afforded to legislators. What happens when legislation is sought at an earlier phase of a disruptive innovation’s cycle? To answer that question, we can look to how radio was incorporated in law.

Notes





1. Michael E Sawyer, ‘The Photocopying Machine: How Did It Begin’ (1979) 72 Law Libr. J., 91, 1. 2. David Owen, Copies in Seconds (Simon & Schuster Paperbacks 2004), 81. 3. Timothy J Lockhart, ‘Did You Know…There’s a Trademark Graveyard?’ (2008) 63 INTA Bulletin accessed 20 June 2020. Unless otherwise stated, all online sources accessed 20 June 2020. 4. Clive Thompson, ‘How the Photocopier Changed the Way We Worked—and Played’ [2015] Smithsonian Magazine . 5. David Owen, ‘Making Copies’ [2004] Smithsonian Magazine . 6. ‘Classified Ad 2 – No Title’ The Manchester Guardian (1901–1959) (Manchester (UK), 29 November 1950), 1. 7. Mimeo machines (mimeograph) used stencils to create copies. Eventually, typewriters were able to create the masters for mimeographs which sped up the process. Allan et al. ‘New Technology and The Law of Copyright-Reprography and Computers’ (1968) 15 UCLA Law Review, 939–941. 8. William D Smith, ‘Xerox Introduces Speedy Copier’ The New York Times (15 October 1964) . 9. Sawyer (n 1), 93. 10. Owen, Copies in Seconds (n 2), 180. 11. Jack Lander, ‘Invention or Innovation?’ (2012) 28 Inventor’s Digest, 38–38. 12. David Tomlin, ‘Chester Carlson: Original, Novel, Ingenious’ (2001) 44 NYL Rev. 287. 13. Ron Adner and Daniel A Levinthal, ‘The Emergence of Emerging Technologies’ (2002) 45 California Management Review, 50–54. 14. Clayton M Christensen, The Innovator’s Dilemma: The Revolutionary National Bestseller That Changed the Way We Do Business (First Collins Business Essentials, HarperBusiness 1997), 89. 15. Owen, Copies in Seconds (n 2), 197. 16. Ritchie Calder, ‘The Space Age Revolution Called Xerography’ The Guardian (6 November 1962) 3, 3; Joseph J Ermenc, ’Interview of Chester F. Carlson, the Inventor (Dec. 16, 1965)’ (2001) 44 NYL Rev., 247–286. 17. Owen, Copies in Seconds (n 2), 116. 18. Ermenc (n 16), 276. 19. RM Schaffert and CD Oughton, ‘Xerography: A New Principle of Photography and Graphic Reproduction’ (1948) 38 J. Opt. Soc. Am. 991; Gary Jacobson, ­‘Carlson’s Timeless Lessons on Innovation’ [1989] Management Review, 13–14. 20. Owen, Copies in Seconds (n 2), 149.

84  Legislating for well-known norms 21. ibid., 189. 22. Laurie Pasiuk, Vault Guide to the Top Tech Employers (Vault Inc 2006), 238. 23. Barbara L Craig and Heather MacNeil, ‘Records Making, Office Machines, and Workers in Historical Contexts: Five Photographs of Offices in the British Civil Service C. 1919 and 1947’ (2011) 32 Journal of the Society of Archivists, 205–207. 24. ibid., 210. 25. ‘Classified Ad 2 – No Title’ The Manchester Guardian (1901–1959) (Manchester (UK), 29 November 1950), 1; ‘Classified Ad 5 – No Title’ The Manchester Guardian (1901–1959) (Manchester (UK), 2 April 1951), 1; ‘Display Ad 49 – No Title’ The Manchester Guardian (1 April 1959) 4; ‘Display Ad 63 – No Title’ The Guardian (12 April 1960) 14; ‘Display Ad 4 – No Title’ The Guardian (10 January 1963), 3. 26. For example ‘Classified Ad 38 – No Title’ The Irish Times (Dublin, Ireland, 4 March 1950). 27. Helen E Loftus and Allen Kent, ‘Automation in the Library—an Annotated Bibliography’ (1956) 7 American Documentation, 110. 28. Copyright Act of 1911, s2(1)(i). 29. See for instance the discussion on student and research use of texts in Stephen Breyer, ‘The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs’ [1970] Harvard Law Review, 281; Kathy Bowrey, ‘“The World Daguerreotyped: What a Spectacle!” Copyright Law, Photography and the Economic Mission of Empire’, Copyright and the Challenge of the New (Kluwer Law International 2012), 36; Amy Metcalfe, Veronica Diaz and Richard Wagoner, ‘Academe, Technology, Society, and the Market: Four Frames of Reference for Copyright and Fair Use’ (2003) 3 portal: Libraries and the Academy, 191–199; Kaminstein, ‘Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law’ (1961), 25. 30. ‘Rules Relaxed For Libraries’ The Manchester Guardian (1901–1959) (25 May 1957), 12. 31. Henry M Silver, ‘New Methods of Printing and Reproducing Scholarly Materials’ (1951) 2(1) American Documentation, 54–58. 32. In 1949, the New York Public Library sent Photostat copies of Edgar Allen Poe’s newly discovered poems to Manchester. Private Wire, ‘Our London Correspondence’ The Manchester Guardian (1901–1959) (Manchester (UK), 24 November 1949), 4; The Leningrad State Library sent photocopies of a rare book to Manchester. ‘Leningrad’s Gift to Manchester’ The Manchester Guardian (1901–1959) (Manchester (UK), 24 March 1956), 12. 33. A Correspondent, ‘Microtexts as a Means of First Publication’ The Guardian (1959–2003) (15 June 1960), 23. 34. Estelle Brodman, ‘Piracy by Photocopy’ (1966) 54 Bull Med Libr Assoc, 422–422. 35. The “Gentleman’s Agreement” of 1935 in George P Bush, Reprography and Copyright Law (American Institute of Biological Sciences 1964) 157-158; Borge Varmer, ‘Study No. 15 Photoduplication of Copyrighted Material by Libraries’ (United States Government Printing Office 1959), 15–51. 36. Jackson S Saunders, ‘Origin of the “Gentlemen’s Agreement” of 1935’, Repography and Copyright Law (American Institute of Biological Sciences 1964), 160. 37. Brodman (n 34), 423. 38. Arnold Sadow, ‘Book Copying Machines; A Description and Evaluation’ (1958) 46 Bulletin of the Medical Library Association, 344–344..

Legislating for well-known norms  85 39. Kathy Bowrey, ‘“The World Daguerreotyped: What a Spectacle!” Copyright Law, Photography and the Economic Mission of Empire’, Copyright and the Challenge of the New (Kluwer Law International 2012), 36. 40. Alan Latman, ‘Study No. 14 Fair Use of Copyrighted Works’ (United States Government Printing Office 1960); Varmer (n 35); Kaminstein, ‘Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law’ (1961), 25; Lord Chancellor, HL Deb, 15 November 1955, Vol 194, 501–503; Earl Jowitt, HL Deb, 15 November 1955, Vol 194, 543; Lord Chorley, HL Deb, 14 February 1956, Vol 195, 932; Lord Mancroft, HL Deb, 14 February 1956, Vol 195, 934–936, 942. 41. Louise Weinberg, ‘The Photocopying Revolution and the Copyright Crisis’ [1975] The Public Interest, 99. 42. This continued until the Gentlemen’s Agreement in 1935. Thomas Boggs Richards, ‘The Value of the Copyright Clause in Construction of Copyright Law’ (1975) 2 Hastings Const. LQ, 221–238; See also Williams & Wilkins Co. v. United States, 487 F.2d 1345, (Ct. CI. 1973), 1351. 43. 35 Stat. 1075, Public Law, 34. 44. Henry J Friendly, ‘The Gap in Lawmaking-Judges Who Can’t and Legislators Who Won’t’ (1963) 63 Columbia Law Review, 787–793. 45. Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373 (1960); Platt & Munk, Inc. v. Republic Graphics, Inc., Civil No. 27867, 2d Cir., March 21, 1963; Norbay Music, Inc. v. King Records, Inc., 290 F.2d 617 (2d Cir. 1961). 46. The Supreme Court established that judges had a wide discretion in the use of legal remedies to prevent and punish copyright infringement. F. W. Woolworth Co. V. Contemporary Arts, 344 U.S. 228 (1952). 47. The Townsend Amendment of 1912 (37 Stat. 488, Public Law 303) specifically added motion pictures as a category of protected works. The Act of 25 September, 1941, (55 Stat. 732, Public Law 258) allowed for extended time for making copyright registrations for works published abroad. The 1909 act was codified as Title 17 in 1925 and then in 1947 of the United States Code (61 Stat. 652, Public Law 281), but neither included substantial changes to the law as enacted. 48. The Thomas Bill §12 S. 3043, 76th Cong., 3d Sess. (1940) would have provided for a statutory licensing system for photocopying out-of-print works. The Lucas Bill, 1944 S. 2039, 78th Cong., 2d Sess. (1944). would have provided that no copyright law could have prevented the Library of Congress from providing copies to various classes of persons, but would not have resolved the question of copying services by other libraries. Neither bill found any success. 49. Abe A Goldman, ‘Study No. 1 The History of U.S.A. Copyright Law Revision from 1901 to 1954’ (United States Government Printing Office 1960), 1–13. 50. Friendly (n 44), 793. 51. Kaminstein, ‘Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law’ (1961) ix. 52. Roger Needham, ‘Tape Recording, Photocopying, and Fair Use’ (1957) 10 Copyright L. Symp., 75. 53. Geo.6 5(1911) c.46. 54. Universal Copyright Convention (adopted 6 September 1952, entered into force 16 September 1955) 2937 UNTS, 134. 55. Berne Convention for the Protection of Literary and Artistic Works (adopted 26 June 1948, entered into force 1 August 1951) UNTS 217. 56. Section 3 of the 1911 Act. 57. Lord Chancellor (Viscount Kilmuir), HL Deb, 15 November 1955, Vol 194, 500.

86  Legislating for well-known norms 58. The 1948 Berne Revision text required an unqualified period of protection. HL Deb, 15 November 1955, Vol 194, cc498–559, 500; Sam Ricketson and Jane C Ginsburg, International Copyright and Neighbouring Rights, v 1–2: The Berne Convention and Beyond (Oxford Univ Press 2005). 59. HL Deb, 15 November 1955, Vol 194, cc498–559; HL Deb, 14 February 1956, Vol 195, cc884–966. 60. Lord Chancellor (Viscount Kilmuir) (n 57), 501. 61. Earl Jowitt, HL Deb, 15 November 1955, Vol 194, 542. 62. Lord Chancellor (Viscount Kilmuir) (n 57) 499; Lord Mancroft, HL Deb, 14 February 1956, Vol 195, 936. 63. Earl Jowitt (n 61) 542; Lord Chancellor (Viscount Kilmuir) (n 57), 502. 64. Earl Jowitt (n 61) 543; Lord Chancellor (Viscount Kilmuir) (n 57), 503; Lord Mancroft, HL Deb, 14 February 1956, Vol 195, 939; Lord Chorley, HL Deb, 14 February 1956, Vol 195, 940. 65. Lord Chancellor (Viscount Kilmuir) (n 57), 499. 66. Geo.6 5(1911) c.46. 67. Lord Chancellor (Viscount Kilmuir) (n 57), 502. 68. The word “advantage” is used by speakers on both sides of the debates in reference to students and researchers. Lord Chancellor (Viscount Kilmuir) (n 57), 502; Lord Chorley, HL Deb, 14 February 1956, Vol 195, 944. 69. Lord Chorley, HL Deb, 14 February 1956, Vol 195, 931. 70. HL Deb, 14 February 1956, Vol 195, 933. 71. The debates on the 1911 Act also showed a deference to facilitate research activities. HL Deb, 04 December 1911, Vol 10, cc451–87. The House of Commons even sought to include a specific exemption for extractions of works for school books. HC Deb, 28 July 1911, Vol 28, 1948–1950. No discussion on whether the exemption for study and research should be included at all. 72. Lord Mancroft, HL Deb, 14 February 1956, Vol 195, 934. 73. Lord Chancellor (Viscount Kilmuir) (n 57), 502. 74. Earl Jowitt (n 61), 543. 75. Lord Douglas of Barloch, HL Deb, 14 February 1956, Vol 195, 937. 76. The Copyright Act 1956, 4 & 5 Eliz. 2 c. 74. 77. Lord Mancroft, HL Deb, 14 February 1956, Vol 195, 935. By 1968, this was no longer a suspicion, but presented as fact: “Sir G Navarro asked the President of the Board of Trade whether he is aware that, in view of recent developments in the perfection of copying machines, many firms and other organisations now photostat extracts from books, memoranda and other documents and make them available to their staff or members without reimbursement…” Sir G Navarro, HC Deb, 01 May 1968, Vol 763, 209W. 78. ‘Display Ad 20 – The Rank Organisation Limited: Profits Maintained in ­Difficult Trading Year’ The Manchester Guardian (1901–1959) (Manchester (UK), 14 October 1957), 8. 79. Lord Chancellor (Viscount Kilmuir) (n 57), 499. 80. John Davy, ‘Getting the Paper Under Control’ The Observer (1901–2003) (London (UK), 16 June 1957), 4. 81. Xerox Corporation, ‘The Story of Xerography,’ 11. . 82. Tomlin (n 12), 287. 83. Van Dyk Research Corp. v. Xerox Corp., 478 F. Supp. 1268 (D.N.J. 1979), 40–41. 84. Victor I Mikla and Victor V Mikla, Amorphous Chalcogenides: The Past, Present and Future (Elsevier 2011), 64. 85. ‘Display Ad 4 – No Title’ The Guardian (10 January 1963), 3.

Legislating for well-known norms  87 86. John Davy, ‘“Dry-Photo” Copying for the Office’ The Observer (24 April 1960), 4. 87. Calder (n 16), 3. 88. Rank Xerox operated as Britain’s supplier of Xerox machines originally. ‘New Concept Gains International Acceptance’ The Guardian (21 September 1966), 13. 89. Ermenc (n 16), 258 & 284–285. 90. ‘Display Ad 1 – No Title, The Manchester Guardian (Aug 13, 1958) 1; Display Ad 63 – No Title’ The Guardian (12 April 1960), 14. 91. ‘Parkinson’s Law of Delay’ The Guardian (21 September 1966), 11–12. 92. ‘Display Ad 63 – No Title’ The Guardian (12 April 1960), 14. 93. Xerox 1987 Fact Book (Xerox Corporation 1987). 94. ‘Display Ad 1’ The Manchester Guardian (13 August 1958) 1; Display Ad 49’ The Manchester Guardian (1 April 1959), 4. 95. Sawyer (n 1) 94; Chester Carlson in Ermenc (n 16), 261. 96. ‘New Concept Gains International Acceptance’ The Guardian (21 September 1966), 13. 97. ‘Display Ad 30’ The Manchester Guardian (25 May 1959), 11. 98. Calder (n 16), 3. 99. Weinberg (n 41), 104. 100. See David Robinson, ‘Printer Ink Cartridges: Why You’re Paying More but Getting a Lot Less’ (The Guardian, 23 February 2013) ; Henry Chesbrough, ‘Business Model Innovation: Opportunities and Barriers’ (2010) 43 Long Range Planning, 354–355. 101. Pub. L. No. 94–553 § 108. 102. Alan Latman, ‘Study No. 14 Fair Use of Copyrighted Works’ (United States Government Printing Office 1960), 14–33. 103. Varmer (n 35), 49. 104. Kaminstein (n 51), 25. 105. ibid., 26. 106. Varmer (n 35), 15. 107. ibid., 49. 108. Based on a CICP Report wherein 64 out of 66 reporting libraries “judge themselves in compliance with ‘fair use’ interpretation.” See Survey Table XXXVI in Gerald J Sophar and Laurence B Heilprin, The Determination Of Legal Facts And Economic Guideposts With Respect To The Dissemination Of Scientific And Educational Information As It Is Affected By Copyright-A Status Report’ (US Department Of Health, Education, And Welfare 1967) Final Report, Appendix C. 109. ibid., 35. 110. John W Gould, ‘Technology and Copyright: Annotated Bibliography and Source Materials’ (1973) 10 Journal of Business Communication, 54–55. 111. ‘Judge Says Photo “Menace” Chokes the Law’ The Guardian (21 July 1971), 6. 112. Weinberg (n 41), 100. 113. Xerox Corp., 86 F.T.C. 364 (1975). 114. Chesbrough (n 100), 355. 115. Kate Eichhorn, ‘Copy Machines and Downtown Scenes: Deterritorializing Urban Culture in a Pre-Digital Era’ (2015) 29 Cultural Studies, 363, 368–369; Thompson (n 4). 116. See the works of Sonia Sheridan in New York 1970; See also Patrick Firpo, Lester Alexander and Claudia Katayanagi, Copyart: The First Complete Guide to the Copy Machine (Putnam Pub Group 1978).

88  Legislating for well-known norms 117. Eichhorn (n 115), 370. 118. M McLuhan ‘The Emperor’s New Clothes,’ Essential McLuhan (House of Anansi 1995), 349. 119. John Brooks, ‘Xerox Xerox Xerox Xerox’ (1967) 43 The New Yorker, 87. 120. See Chapter 5, s2.5, 136. 121. Ralph R Shaw, ‘Publication and Distribution of Scientific Literature’ (1956) 17 College & Research Libraries, 293–302. 122. Latman (n 102), 34. 123. Sophar and Heilprin (n 108), 37. 124. Weinberg (n 41) 101; Sophar and Heilprin (n 108). 125. Latman (n 102), 11–12. 126. 420 U.S. 376 (1975). 127. H.R. Rep. No. 2222, 60th Cong., 2d Sess.: 7. 128. ‘NCLIS Photocopy Contract Awarded to King Research’ (1976) 101 Library Journal 1578, 1578. 129. Latman (n 102), 34.

Chapter 5

Legislating during the disruptive period Radio

“The grown-ups will also enjoy it.”1

Radio is pervasive in the modern world. You can listen to it in your car, on your phone, in shops, hotels, and dentist offices. It is now difficult to imagine a time and place where radio was not a part of our lives. Radio’s impact on our lives is more significant than is immediately obvious. The mass communication possible with radio enabled the creation of a modern society, informing the choices of listeners, and creating the notion of “mass culture.”2 Radio has a storied past, with new innovations such as wireless telegraphy, wireless telephony, and radio broadcasting being successively heralded as “revolutionary.”3 One of the defining features of radio was how fast-paced the innovations in radio production became. Like the hard drive industry first studied by Christensen in developing the disruptive theory, radio innovation was rapid and constantly evolving. With it came social norms, regulations, and access to copyright works. The original intent behind radio was to provide for communications over long distances when wires weren’t possible, but the new broadcast radio of the early 20th Century was vastly different in purpose. Radio broadcasting’s purpose was to “entertain, inform and educate people.”4 The technology was not significantly different from the technology used for its original purpose, but the result, the intent, and the business model behind broadcast radio was completely different. Radio has many applications. A number of those applications are still in use today, from the HAM radios, walkie-talkies, and CB radios used by individuals to the behemoth that is the broadcasting industry. It is difficult to differentiate between receivers and broadcasters since, without one, the other had little use. One without the other is not an innovation. Therefore, this will have to include both the receivers and broadcast equipment as the development of broadcasting as a medium was dependent on the development of an audience. While tempting, we cannot confine our discussion to just receivers and the “enthusiasm of a generation” that saw radios become

90  Legislating during the disruptive period

household items in the United States within a decade.5 Out of all of the radio applications, there is one that dovetails most with intellectual property – broadcast radio. Broadcast radio, distinct from general radio wave manipulation, has a varied past. That we have broadcast radio is a happenstance. Certainly, broadcast radio wasn’t the original commercial application of Hertz’s scientific discovery of radio waves as the original considerations of wireless telephony merely envisioned point-to-point communication.6 No other application of radio sees the same possibilities and scale for transmitting copyright works as broadcast radio. Likewise, without the development of radio content, the likelihood of interest in radio-receiving equipment was minimal. In order for any kind of market in broadcasting to emerge, the development of receivers and broadcasting equipment, along with broadcasting content, was necessary. It is this totality of radio that made it the innovation it was. Like many disruptive innovations, broadcast radio did not have an immediate positive reception from all quarters. Questions regarding the safety and effects of radio on the world abounded with one commenter wondering “whether ten years hence the air will still be fresh in the early morning before the usual contamination has taken place.”7 Concerns existed that the “ceaseless streams of sound from the air will end in a general revulsion against music as mere noise.”8 Radio aficionados were dubbed ­“victims of radio-mania.”9 Even into the 1930s radio listening was viewed as a ­“capricious social activity” that lacked the direction of a human hand to distinguish it from its “herd-like nature.”10 This chapter looks at what happens when legislation steps in during the disruptive period of a technology. It looks at radio from three perspectives – disruptive innovation, legal developments, and social changes. Legislators in the United States and the United Kingdom took different approaches to regulation for radio. Our focus is going to be on the United States, but the UK approach is worth considering. Before we can understand the market and social norms that legislators stepped into, we have to understand how radio came to be the behemoth of an industry that it did.

Early development pre-1922 As many technologies do, radio began its life as a military application and saw multiple new applications developed after improvements allowed the technology to be used in new ways. After the radio’s possibility had been proven, Hertz’s work was capitalised on by many inventors. Guglielmo Marconi developed a working “wireless telegraph,”11 and Nathan Stubblefield broadcast the natural voice from a wireless telephone in 1892.12 By 1906, Reginald Aubrey Fessenden used wireless telephony to transmit voice to ships at sea,

Legislating during the disruptive period  91

hundreds of miles away.13 Voice was broadcast, as we would recognise it today, for the first time in the United States in 1915.14 Initially, the majority of efforts surrounding radio at the turn of the 20th Century centred around improvements to long-wave broadcasts and distance. World War I drove the development of radio further and faster. It wasn’t until 1917–1918 that the United States Navy began using shorter wavelengths for communications within a single fleet, but most applications were considered “useless” without the distance requirement.15 However, even without the distance, radio’s flexibility and mobility made it an ideal application for military and police forces where reliance on infrastructure could be a liability.16 World War I is also directly responsible for creating the first market for radio manufacturers. Surplus military equipment created the perfect situation for the growth of the “ham” radio enthusiast, as well as sparking the possibilities for entrepreneurs.17 Ham radio operators were the norm prior to broadcast radio’s boom. They were the primary market in this period outside of official military and police forces. However, with the introduction of broadcast radio, this would change. These home tinkerers were relegated to a fringe market by the success of broadcast radio.18 Viewed as a military application, it should be no surprise that there were efforts to regulate the use of radio waves early on. Radio in the United Kingdom fell within the Wireless Telegraphy Act of 1904.19 Unlike the US model, both broadcasters and receivers were required to hold a license under the 1904 Act although there was widespread avoidance of compliance.20 This significantly curbed the rise of amateur broadcasters or the tinkering ham radio enthusiasts in the United Kingdom. The United States first put legislation in place governing the use of wireless radio signals in 1910. In response to a shipping accident, Congress passed The Wireless Ship Act of 191021 requiring all US ships travelling over 200 miles off the coast and carrying more than fifty passengers to be equipped with wireless radio equipment with a range of 100 miles. This was amended in 1912 with the Radio Act, which required all radio frequency operators to be licensed by the federal government.22 Receivers of radio signals did not require a license in the US; radio, telephones, and telegraphs were all placed under the Interstate Commerce Commission under the 1912 Act,23 which wouldn’t be replaced until the Communications Act of 1934.24 World War I’s impact went beyond development and on to radio regulation. Both Britain and America banned the use of radio by non-military amateurs during the conflict, a state lifted in America in 1919 but not until 1921 in Britain.25 This reflected the idea that the primary application for radio was as a communications tool for police and military forces in this period. This early radio legislation primarily focused on ensuring a minimum of interference on bandwidths.26 It was the very basics to regulate the airwaves and ensured a modicum of control.

92  Legislating during the disruptive period

Finding an initial market One of the major differences between the United States and the United Kingdom was the provision of cheaper manufactured radio sets.27 The introduction of broadcast radio to the market came with a technical ability requirement. If you weren’t interested or capable of creating your own radio set, options were limited. Ham radio operators generally built their own radio sets, and early selling tactics were primarily aimed at boys.28 Early manufactured radio sets were expensive, with a receiver coming in at $130 without batteries, headphones, or the required antenna.29 This was equivalent to an average man’s monthly wage or one-third of a Ford Model T car.30 This cost created its own barrier for the creation of a market, putting radios firmly in the realm of the rich. Meanwhile in the United Kingdom, homemade radios or radio kits based on crystal technology cost as little as £2–£3 up until 1926,31 or £15 for a valve set,32 which even with currency conversion is a magnitude less than the offered manufactured sets. Determined to make a cheaper option, Powell Crosley created a vacuum-tube-based radio set (as opposed to the patented crystal sets of the RCA).33 In September 1921, Crosley’s crystal receiver went on sale for $7, with headphones and aerials extra.34 This was easily the most affordable pre-assembled radio set on the market, and Crosley’s “Harko” sales rocketed.35 In March of 1922, Crosley released an upgraded model that was larger than previous models, did not require the headphones, and became an instant success.36 Radio had finally found a version that not only appealed to the common man but his pocketbook as well. The Harko cheaper sets continued to show huge popularity throughout the 1920s, and once Crosley showed the possibilities of a manufactured, cheap radio, the market opened up. Manufactured radios produced by Crosley were cheaper than the previously manufactured options but not as cheap as the home-built kits by tinkerers. However, the knowledge barrier was significantly reduced. This made it possible for the grassroots population to be a part of radio’s story. Rather than having to understand how to put the pieces together, the manufactured sets merely required tuning in stations. Crosley’s radio sets were by no means the only ones on the market, but they were the tipping point for the technology to become widespread. Creation of the American broadcasting industry and a need for regulation A radio set is only useful if there is something to listen to, a problem that did not exist when radios were mostly point-to-point communicators. Powell Crosley quickly realised that without broadcasting material to listen to

Legislating during the disruptive period  93

there was no reason for the public to buy radio sets, and became an amateur broadcaster in the summer of 1921 and a commercial broadcaster in early 1922.37 Most early broadcasters like Crosley came from the ranks of radio and electrical manufacturers and sellers, although a smaller percentage were educational institutions and newspapers. Broadcasters became natural gatekeepers for the actual content of what was broadcast. Broadcasting took off in America in ways that could not happen in Britain. US legislators repealed the ban on amateur use of radios in mid-1919. By 1920 there were fifteen times more amateur radio stations in America than any other type.38 This changed as broadcasting became more mainstream and more regulated. In 1921, the first American radio station was given a license,39 with many others operating as amateurs. In 1922 there were thirty radio stations in the United States but by 1923 the US Census listed 556, a leap that likely demonstrates the incorporation of amateur radio broadcasters into the formalised regulation system. The 1920s saw the beginning of major radio networks whose influence was seen in the determination of policy through connections to early radio regulators.40 One of the enduring descriptions of early 1920s radio broadcasting in America is the “chaos” caused by unregulated broadcasts.41 Interference caused by multiple stations using a small number of wavelengths contributed heavily to the chaos.42 1920s receivers were incapable of preventing “drift” to nearby frequencies.43 To complicate matters, distance and power changed the listening radius of a station,44 so geographic planning was imperative to prevent interference from different stations while allowing the maximum use of the broadcasting frequencies. With limited frequencies available and competing broadcasters, organisation became imperative. Secretary Herbert Hoover, who led the Department of Commerce at the time, campaigned to reign in the “chaos” of early amateur radio broadcasters.45 The 1912 Act proved to be inadequate to the task of regulating broadcast radio. Technical difficulties produced new difficulties for the 1912 Act to deal with, and by the early 1920s, there were calls for reform, specifically to incorporate broadcast radio. Regulation in Britain In 1922, the “radio craze”46 moved across the Atlantic to the United Kingdom and Europe. At the cusp of radio’s slip into the mainstream, British legislators tackled the question of radio. Instead of immediately allowing amateur transmissions at the end of World War I, Britain looked at the budding American radio industry as a cautionary tale.47 In 1922, the Wireless Sub-Committee of the Imperial Communications Committee met to discuss the new wireless sensation wherein the committee, were told of the “chaos” happening with American radio.48 They were determined not to repeat the mistakes, as they saw it, of America.

94  Legislating during the disruptive period

While the Committee’s report was not published, its main points were adopted by the Postmaster-General after being outlined to the House of Commons.49 These were regulations of wavelength, power, time, and location. The regulations were organisational for the most part, but importantly, required licenses for both broadcasters and receivers.50 The PostmasterGeneral went further than merely organising the broadcasters, placing restrictions on which radio manufacturers were acceptable and even rules with regards to the content. These restrictions were to be incorporated into the articles of association of whoever would be in charge of broadcasting in Britain.51 The Post Office already had control over the airwaves through The Telegraph Acts 1868 to 1870,52 and the Wireless Telegraphy Act 1904.53 When broadcast radio became a reality, it was considered merely an extension of wireless telegraphy and was therefore already under the control of the British government through the Postmaster-General.54 To ensure this, the Postmaster-General introduced a Bill55 that would make those powers permanent in June of 192256 although this was never passed into law. British broadcasting started on a trial basis with the Marconi Company in 1922 under the approval of the Post Office.57 The only radio stations to receive a licence were those that would eventually belong to the British Broadcasting Company. The Post Office had a number of applications for broadcasting licenses in early 1922, which eventually led to the formation of the British Broadcasting Company.58 To avoid the chaos of American broadcasting, the committee eventually approved a licensed approach to broadcasting that limited bandwidths and signal strength significantly, and ultimately placed broadcasters under the Post Office’s control for not just the act of broadcasting, but in the programming that was broadcast. The British Broadcasting Company and its next iteration, the British Broadcasting Corporation (BBC), were both effective monopolies on broadcasting. If you were not a member of these, you could not obtain a license to broadcast. While technically any British manufacturer of radios could join the BBC, the reality was that this kept the majority of the power with a few companies who were not interested in competition.59 This licensing scheme kept the number of broadcasters artificially low in Britain. This was not originally meant to be monopolistic in nature; the Postmaster-General himself reported that licensing of manufacturers should result in “cut-throat competition,”60 however a State broadcasting station was clearly envisaged. By this time, the Post Office had been barraged with requests for the creation of broadcasting stations, primarily by radio manufacturers, who, like American manufacturers, realised the need for an audience for their product.61 Subsequent meetings of manufacturers with the Postmaster-General failed to produce cohesive plans, with the Postmaster-General pushing for a single company to control broadcasting.62 Despite the wishes of the manufacturers, the British Broadcasting Company

Legislating during the disruptive period  95

(BBC) was registered in December of 1922 and became the solely licensed broadcaster in Britain from January 1923. While there was an eventual acceptance that the BBC was the “natural” body to be in charge of wireless in Britain,63 in reality, the government continued to have significant input into the prices, profits, programming, and the materials that were broadcast by the BBC. Although much literature is focused on Reith’s policies at the BBC, much can be laid at the feet of the cautious approach taken by the Postmaster-General, which, through the inclusion of restrictions in the broadcasting license, effectively created a monopoly on broadcasting for the State, barring amateur radio enthusiasts an easy platform. Regulation of the radio industry was a fait accompli at this juncture in Britain. While the industry would change and have difficulties with piracy later on,64 for all intents and purposes the broadcasting license was the key regulatory work in the early years of radio in Britain. The United Kingdom chose a path that did not work alongside all interests, and the resulting regulation reflected this, stifling the amateur radio scene. Social norms were not a part of the creation of laws surrounding radio in the United Kingdom during the growth of radio. The reliance on the 1904 Act65 meant that there could be no incorporation of social norms derived from radio. The radio industry did not exist in Britain until the BBC’s creation and the establishment of broadcasting licenses. Up until then, broadcasting had still been kept solely for the province of military applications. It would have been nearly impossible for social norms to have been created within the general populace by the time these changes occurred. It is clear that the British Postmaster-General made no significant concessions to the pleas of radio manufacturers, nor are there any signs that he attempted to understand the norms circulating the technology or in America at that time. British legislators were mostly happy to allow the Postmaster-General, a ministerial government post, the freedom to govern broadcast radio as he saw fit. The creation of broadcasters provided natural gatekeepers and there was significant interest from grassroots, media, and other parties to bring radio to regulator’s attention. While typically the existence of conflict is necessary within a jurisdiction to spur regulators to act, here it was sufficient that airwave frequency chaos was visible in the United States as a cautionary tale.

Disruptive period 1922–1927 In the 1920s, radios improved in performance and changed performance parameters rapidly; from batteries to electricity, headphones to loudspeakers, from being capable of broadcasting only at night to during the daytime.66 Interestingly, the “improvement” from batteries to electricity at the time may have been a backwards step as batteries allowed significantly

96  Legislating during the disruptive period

more homes to use radios during this period as electricity was not available in every home.67 Many of these performance improvements were sustaining improvements on the quality of the radios at hand, however, the overall effect of them was to bring radio to the home. Diffusion in both countries was swift within the first ten years of radio. Britain’s fast diffusion can be seen by broadcasters receiving licenses. In 1923, 125,000 licenses were in operation, 748,000 in 1924, and the number of licenses continued to rise through World War II.68 This is a conservative number as there is evidence that mass licence evasion existed. Up to 14–15% of radio ownership may have been unlicensed, which could mean Britain had a more rapid household diffusion than America.69 Arguably, it took from inception to 1932 for the British market to reach saturation.70 The question of “radios per household” was easily quantified in Britain, with the compulsory radio licence even for listening, however, no such licensing scheme for listeners existed in America. However, Scott suggests that this may have been down to the significant regional differences in radio adoption seen in the United States.71 In June of 1922, US census data indicates there were 60,000 radio sets in households.72 In 1923 that rose to 400,000 radio sets, and by 1930 the US census showed over twelve million households owned its own radio set.73 By the late 1920s, the radio set had become a permanent fixture in most American homes.74 This fast diffusion was the direct result of one of radio’s disruptive properties, namely its appeal to a broader audience. The introduction of manufactured radios that required no prior technical knowledge was a significant change in performance parameters, creating a new market in radio listening with it a larger audience. As mentioned, early radio sets in the hands of the public were often cobbled together and created by their owners. This created an initial barrier to entry for anyone interested in having one in their home. This changed when there was a shift from the radio as a technical hobby, where the primary users of the technology were tinkerers, scientists, and hobbyists, to its use as a general social activity.75 By the mid-1920s, there were dozens of companies creating radio sets, speakers, and amplifiers for home use.76 One of the easily identified shifts that broadcast radio brought was the inclusion of women. Radio ownership was traditionally a province of male tinkerers.77 American broadcasters not only had to sell the idea of radio to women but also the idea of women as radio listeners to advertisers.78 Meanwhile, radio broadcasts by the BBC as early as 1924 focused its programming on the “suitability for the home,” which included programming for women.79 This was easier once broadcasting during daylight hours became possible, as typical homes saw more women home during working hours. After deliberate “feminisation” of radio by suffragettes, manufacturers, and contemporary writers, radio became a pastime that could be enjoyed by all.80

Legislating during the disruptive period  97

All of this was a broader customer base than the traditional “hobbyist” radio had ever amounted to. It was this shift in users that allowed radio broadcasts to become “wildly popular.”81 The eventual audience for radio became families in the home rather than simply a small segment of the populace.82 Advertising as a business model Disruptive innovations are sometimes as much about disrupting current business practices as it is about a prior technology. In the case of radio, one of the key parameters that changed was how the entertainment industry did business. However, this new business model came with conflict. One of the immediate difficulties in building a broadcasting industry was the question of funding. Many early broadcasters used their broadcasts as ways to market their own radio sets while their broadcasts drove the demand for sets.83 As the large broadcasters began looking at creating national broadcasting networks, it was apparent that broadcasting could not survive without additional funding.84 However, it quickly became apparent that this medium could be funded in other ways. By 1922, advertising had been identified as one option.85 However, it took until 1924 for advertisers to purchase time on air, and many did so without any certainty that this approach would reach customers effectively.86 Radio licenses in the United States were typically held by large corporations, such as Westinghouse and AT&T who then sold time on air to commercial interests who wished to advertise. Critics of the radio blamed the American commercialisation of radio for broadcasting becoming “a monotonous round of banalities.”87 In Britain, where the quality of broadcasting material was generally agreed to be of a higher quality, radio received numerous criticisms. It was described as the “great flooding of the average mind,”88 or when “employed by unthinking men and women, is very definitely an evil.”89 The need for radio to be more than background noise seemed to be a key factor in the criticisms levied at it, and those criticisms only got louder the more commercial radio became. Ultimately, the commercialisation became a question dealt with by the legislature in America in the 1927 Radio Act. Regardless of the criticisms against it, the advertising model proved too beneficial to avoid, becoming as ubiquitous for radio as it was in print publications. Developing norms Approaches to radio broadcasting, commercialising, and programming may have differed from country to country, but there was no denying that radio created new social norms wherever it went. One of the consistently

98  Legislating during the disruptive period

described norms that developed from radio was the democratisation of information. The idea of a “wireless newspaper,” brought to the fore by Orson Wells and his War of the Worlds hoax, brought trepidation to some and excitement to others.90 Radio “had the capacity to inform listeners and involve them directly in national civic affairs.”91 All that was required to share ideas or information was a license to broadcast. This removed both the previous publishing barrier for opinions and information but also granted access to a variety of shared opinions. The ability to give a platform to other voices was a calling card of radio that began through the proliferation of amateurs and was used strategically by President Franklin Delano Roosevelt in the 1930s.92 Some argued that right of access to radio “should be protected so Americans could be fully informed citizens.”93 This heralded a norm shift towards more information and news. This norm was found far more in America than in Britain, but it also uncovered a related new social norm that arose from the spread of radio– that of trust in the media.94 The counterpart for democratised information found in Britain was the rise of creative content being used to mould society. The British approach to the wireless reflected a cultural view of the medium, focusing on educating the populace’s ear to quality. Articles on wireless warned to avoid aiming for volume “unless you get ‘music’ at the same time” as this was a mistake.95 Radio was to be used as a tool to the benefit of society, to “improve” the people.96 Where American broadcasting was criticised for its banal commercialism, the British broadcasters were criticised for governmental bias and the lack of choice available to the listening public.97 The BBC felt there was “a missionary element” to broadcasting.98 This led to the creation of “popular” music, at least if one considers familiarity to be popularity. The American approach to broadcasting, with its heavy commercialisation, was viewed as a way that did not allow for such cultural moulding. In 1934 one writer commented that “a people gets the radio it deserves” opining that open competition meant it was difficult to use radio to raise the level of taste.99 In both countries the mass access to cultural works contributed to what historians have called the “first mass culture.” These norms all point towards an undeniable social desire for shared experiences, whether through information, music, or programming. Radio and copyright Radio was adopted into the legal frameworks of both America and Britain relatively quickly. However, in terms of copyright, this was done in a roundabout way. Rather than legislating specifically for copyright as affected by radio early on, both American and British legislators solved many of the copyright questions by regulating the new radio industry. They went about

Legislating during the disruptive period  99

this in different ways, but the result was the same – a radio industry whose norms included complying with copyright law. In Britain, the question of copyright and radio was raised in the House of Commons in August of 1922, shortly after legalisation in Britain.100 There was little question that a broadcast was a “public performance” as what constituted a public performance was clearly defined in UK law.101 The UK Copyright Act 1911 made this question irrelevant as it reads: “Performance” means any acoustic representation of a work and any visual representation of any dramatic action in a work, including such a representation made by means of any mechanical instrument.102 This made it clear that the mechanical reproduction of a work via broadcast radio came under the term. However, the basic question of who would be sued where copyright was infringed was questioned and did not find an immediate answer in Parliament.103 The question was side-stepped through the creation of the BBC, which made sure to tread lightly with copyright works. With the monopoly of broadcasting firmly in the hands of a semi-State body gatekeeper resolved to follow copyright rules, the need to reform copyright law to include broadcast radio was small. US radio and law In America, where there were no controls on broadcasters, it wasn’t long before copyright owners began objecting to their works being broadcast. Unsurprisingly, these disagreements found their way to the courts. One of the first questions was that of “public performance”.104 Prior to rulings from the courts or legislative action, the speculation was that the courts would find broadcasters as infringers, if only to protect composers and publishers of music.105 Early case law was split, with the question of whether radio broadcasts constituted public performances under copyright law being decided both ways. Reliance on a dictionary definition saw broadcasters enjoy an early win in Remick & Co. v. American Automobile Accessories Co. The Courts found there was no public performance, ruling: In order to constitute a public performance in the sense in which we think Congress intended the words, it is absolutely essential that there be an assemblage of persons- an audience congregated for the purpose of hearing that which transpires at the place of amusement.106 This decision was criticised as an “over strict”107 and an “over-technical”108 interpretation. The broadcaster’s success did not last long as this decision

100  Legislating during the disruptive period

was overturned by the Sixth Circuit, and radio broadcasting was held to be a public performance and therefore under the Copyright Act’s purview.109 Studio performances designed to be broadcast were considered both public performances and for profit.110 On the question of what constituted “for profit,”111 M. Witmark & Sons v L. Bamberger & Co112 held broadcasts were public performances for profits and therefore a copyright infringement. The question of re-broadcasting material caused the courts some confusion. Remick v General Electric Co. tackled the issue when broadcasters argued they “merely opened the doors of the ballroom, thereby providing facilities for a larger audience to hear another’s performance.”113 This was not accepted by the courts, who found that a broadcaster’s constant reactions and actions involving the broadcasting equipment were at least as complex, if not more so, than an orchestra playing. Therefore, the broadcaster also “participated” in the infringement and could be liable. None of these decisions considered the question of social norms, although the social norms that emerged in this period did not significantly impact on this sphere. However, radio brought up new questions regarding copyright law, such as the essence of a performance, so frequently that the conflict occurring with current copyright law would require reform. The courts in effect created new gatekeepers with these decisions. In a practical move, the individual listening to the radio was not considered to be infringing copyright by merely listening to a copyrighted work broadcast via the airwaves. While they are ostensibly “using” a work, the law found a different place to put liability, namely on those doing the broadcasting. This somewhat put off the need for copyright reform, provided that the radio industry could be regulated and made to work within existing copyright law. Even if copyright law was not dealt with during this period, radio did need regulation. Presidents Warren Harding and Calvin Coolidge envisioned a government that worked with private organisations and provided support to the development of business and industry.114 Thus, when radio came to be regulated there was a very different approach than the standard “regulator” and “regulatee.” Instead, the government, in the form of Herbert Hoover and the Commerce Department, worked with the major broadcasters Westinghouse, General Electric, the Radio Corporation of America, and American Telegraph and Telephone (AT&T) to guide policy in the early to mid 1920s. As Benjamin notes, these were cooperative and established patterns that would continue throughout the regulation of broadcasting.115 Herbert Hoover, then head of the Department of Commerce, had concerns over the growth of radio. At the behest of President Harding, he called the First Radio Conference in early 1922. There were less than thirty representatives of all aspects of radio (amateurs, government departments, radio industry representatives) gathered to discuss the rapid growth in radio and the need for regulation.116

Legislating during the disruptive period  101

Hoover’s opening remarks to the conference emphasised the government’s position – that public interest in broadcasting should remain a priority, that controlling who and what was broadcast was necessary, and importantly, that direct advertising should be stopped. While this could be seen as a direct attack at the new business model brought about by radio, the end result incorporated this new model. Throughout the conference, the participants worked with Department of Commerce officials to suggest policies and regulations, which were compiled by the Department of Commerce.117 The Conference was touted as a success, but with limited attendees, the proposals put forward failed to have industry-wide support. Based on the Department of Commerce’s report, Representative Wallace White and Senator Frank Kellogg introduced bills that would allow the Secretary of Commerce to regulate radio, however, both bills failed due to lack of industry support and the fear of the government having control over the industry. The RCA specifically urged the Interstate Commerce Committee to proceed cautiously in passing any legislation until radio became an economic success.118 When legislation wasn’t forthcoming by the end of 1922, Hoover called another Conference, but issues remained. Four conferences in total were called between 1922 and 1925. The work in these conferences eventually led to the creation of regulatory policies and structures that were solidified in the 1927 Radio Act.119 Jones and Quillan called the 1927 Act a “quantum leap in regulation,”120 which included aspects such as programming, licensing, renewal, and other aspects that were not related to the interference on bandwidths caused by the lack of regulation.121 Focusing on creating a “clear channel” environment, the result of these negotiations are still felt in the AM band structure years later.122 The class structure that developed held even when faced with complaints from those not in the preferred bands. The heavy inclusion of industry and radio enthusiasts in the Conferences helped avoid a disconnect between the social norms that arise and the laws that exist, although non-industry figures were quickly side-lined by industry concerns. The norms pushed by the broadcasters and government at the Radio Conferences were less concerned about social norms and more about industry and business norms that they had established already. While not all the conferences ensured fair representation of all radio’s interests, the inclusion of those at the heart of radio provided for an opportunity to include the growing social norms of the industry in the regulation. This legislation took time but was enacted with input from those concerned.

Mature technology in the 1930s The 1930s was widely regarded as the “age of broadcasting.”123 Radio became easy to sell. New trade magazines made it easy for the new “midget” radio producers to reach buyers through smaller radio stores and large retail

102  Legislating during the disruptive period

chain stores like Sears or Montgomery Ward.124 Catching the established radio manufacturers by surprise, the portable, smaller, and cheaper midget suffered from lower sound quality,125 but continued to push sales. By 1932, sixteen million sets worldwide were said to be in use in households, with a worldwide total of twenty-five million homes.126 In spite of the onset of the Great Depression, by 1937 more American households had radios than electric refrigerators, telephones, or vacuum cleaners.127 Diffusion to households varied from country to country, and from area to area within countries. US rural and farming communities in the early 1930s were far less likely to see significant radio ownership compared to urban areas, reflecting both the ability to obtain service and the difficulties these communities faced in obtaining other technologies.128 American diffusion was swift, with no signs of saturation although this is likely due to the influx of new radio types in America, car and midget radio, which kept radio sales high. Norms in the thirties Possibly one of the largest social norms that came out of the radio was the normalisation of in-home entertainment in a new way. In-home entertainment was not new. Individuals owned instruments, sang, and otherwise entertained themselves, but these were not common in every home. The amateur music scene was vibrant, but radio, in particular, brought professional quality music at the flip of a switch. One of the potential technologies for radio to disrupt was the gramophone, which had been a primary source of “evening entertainments in the domestic circle.”129 Indeed, radio was said to have a better tone quality than many of the ordinary gramophones of the day.130 Radios came without the repetitiveness of the gramophone, providing broader entertainment options without the investment in new titles. The traditional musical teaching industry fought the introduction of mechanically reproduced music, both with the introduction of the radio, and earlier when the gramophone became popular.131 The immediate fear of many was that radio would replace live music and sales from the gramophone and even instruments in general.132 This had been a worry for the music industry before, and many of the fears of radio were echoes of those that were uttered against gramophones and player pianos just twenty years earlier. In fact, the same arguments would later be reiterated for the music industries of the late 20th and early 21st Centuries when faced with the shift to digital formats.133 While the gramophone did eventually leave the market, it was not strictly due to the radio, but the invention of better record players and eventually the tape deck and CD. Earlier in its development, radio was not considered a “branch of the entertainment industry.”134 That would change significantly in the 1930s.

Legislating during the disruptive period  103

Radio was highly valued as an entertainment service that had few substitutes. Nowhere else could a family obtain entertainment so inexpensively. The quality of a musical broadcast could not be considered equal to watching a live performance, however, it was “good enough” for those who could not afford such a luxury. Radio was a “counter-status luxury” reflecting the fact that higher classes had access to more and varied entertainments.135 British feelings on the subject of radio were visceral, particularly on the impact on amateur music where radio was considered a “destructive force.”136 While radio could expose amateur musicians to good techniques, thereby raising the standard of musicians,137 at the same time it gave access to professional musicians to the general populace, whose appetites for the type of performance given by amateurs waned.138 Critics of radio blamed the American commercialisation of radio for broadcasting becoming “a monotonous round of banalities.”139 By the 1930s advertising became less overt, using subconscious suggestion and product placements, but this still did not lead to a general lift in the quality of programming. Even in Britain where the quality of broadcasting material was generally agreed to be of a higher quality, radio received numerous criticisms. It was described as the “great flooding of the average mind,”140 or when “employed by unthinking men and women, is very definitely an evil.”141 The need for radio to be more than background noise seemed to be a key factor in the criticisms levied at it, and those criticisms only got louder the more commercial radio became. The very commercialisation that was criticised was what made radio able to appeal to a broader audience. Broadcast radio is a clear example of creating accessibility for non-mainstream customers. With a solid business model to fuel the growth of the industry, radio became known for its appeal to the masses. While radio inevitably enacted changes on the music profession, it also normalised high-quality music to the general audience. By 1933, the American radio industry reached enough homes for it to become a regular avenue for government agencies to deliver nationwide news. President Franklin Delano Roosevelt would become the first President to truly capitalise on the new medium, using radio to reach beyond local supporters to working-class groups across the country.142 FDR’s use of radio allowed those marginalised or removed from national politics to be informed and feel a part of the national discourse. Radio proponents in the 1930s saw it as a “populace marketplace”143 where the ideas and tastes of the majority could rule. At the time, newspapers were controlled by Republicans, however the same could not be said for radio which enjoyed a broad spectrum of political thought.144 Radio was the “final stage in the narrowing of the world.”145 It was a cultural shift that saw listeners believe in a common public, blurring the lines between public and private lives.146 This mass culture grew because of the access of the many to the same works, which came through radio. While

104  Legislating during the disruptive period

there were criticisms of radio programming, government control in the United Kingdom and commercialism in America, listeners proved loyal to the new medium.

Differences between the United States and United Kingdom It is interesting to note the difference in approaches between the British and American broadcast radio systems. Both countries regulated broadcasting quickly upon its invention. The British approach was a monopolistic, government-controlled system where the idea of commercialising the airwaves was anathema, while the American model was based very much on individualistic capitalism and would “tolerate no Governmental officialdom.”147 Indeed, a plan to create a “super-power broadcast station” by the RCA was almost unanimously opposed as an attempt to monopolise broadcasting.148 In many ways, the American approach embraced the natural spread of radio that came from its disruptive nature. Where there was freedom under the American model for anyone who wanted a license, this wasn’t the case in the United Kingdom. The two approaches created vastly different experiences for the listening public quickly, and by the early ’30s radio commentary focused on how the differences in regulation style were creating vastly different radio experiences.149 This, naturally, meant that different social norms surrounding radio grew in these countries. Even the type of radios produced began to diverge between the United Kindom and the United States. This became a defining feature of the two radio industries and saw very different markets begin to develop. Britain’s radio industry was known for good reception, but higher prices than its US counterpart.150 Scott argues that differences in “socio-legal” environments were one of the key factors in the higher monopoly rents that British equipment manufacturers were able to charge.151 Higher costs in turn led to the failure of Britain’s industry to develop or embrace the “midget” radio sets, which came to dominate the US industry in the 1930s.152 Britain saw a huge turnover of manufacturers.153 By 1938, no single firm or section of the industry held a dominant position in the radio receiver market, in spite of cost advantages and preferential royalties. The British industry became characterised by regular technical progress and design changes, coupled with labour-intensive techniques, which meant that economy-of-scale production techniques failed to produce an advantage over more agile producers whose ability to adapt to new designs proved a major asset.154 The British system had a monopolistic approach to both broadcasting and radio design. Whether the first influenced the second is unlikely,

Legislating during the disruptive period  105

it is an interesting parallel that speaks to the broader differences in the approaches taken by America and Britain. Interestingly, the Canadian Radio Commission, based off the monopolistic BBC model, failed due to poor implementation and management resulting in Canadian viewers listening in to American programming.155 Questions on copyright and unlicensed “pick up” of authorised public performances continued in Britain into the 1930s.156 By 1934, the question of how many steps, and precisely which steps, in a radio transmission amounted to a “public performance” and whether it was “for profit” was still not yet certain.157 Studio performances for broadcasting had been found to be “public.”158 By 1937, unfair competition was being used to enjoin the broadcasting of a record that had specifically been labelled “Not licensed for radio broadcasting.”159 The state of copyright and broadcasting remain contentious until the passage of the Copyright Act 1956, which would make it clear that re-broadcasting material would be a copyright infringement.160 The 1956 Act161 was a general copyright reform primarily designed to incorporate the 1948 Berne Convention and the Universal Copyright Convention.162 In deference to the BBC’s position, a specific provision of copyright in a broadcast by the BBC was included in the 1956 Act.163 This was well past the point that radio had any possibility of being disruptive. It had settled into its general form during the 1930s and had not been significantly altered in that time, but legislators took the time to codify existing practices and judicial rulings during the general copyright reform. Meanwhile, the American legislative agenda assisted in the provision of quality radio broadcasts, prioritising the listening experience over the rights of broadcasters.164 By the 1930s, American courts and lawyers were waiting for copyright reform to emerge from the legislative levels to deal with the issue of radio broadcasts.165 The option of licensing became a favoured idea in the absence of legislative action, even a simple blanket license for those who broadcast for profit.166 These questions were not answered by the 1934 Communications Act, which focused on regulating the industry. The 1934 Communications Act regulated more than just radio spectrums as the 1927 Act had.167 The resulting regulatory framework relied heavily on input from the radio industry. While competition existed, American legislators and policymakers found it extremely difficult to fight the power that was the radio industry. As late as 1942, in NBC v United States,168 dissenting judges urged for “more than ordinary restraint and caution” in creating a new Communications Act, evidencing thejudicial support for the cautious approach taken. The result of Hoover’s inclusion of the radio networks at the early stages of broadcast policy made it difficult to extract their influence later in radio’s history.

106  Legislating during the disruptive period

Conclusion The American and British paths to radio regulation were almost polar opposites. However, both were similar in their approach to copyright. Neither jurisdiction did any major copyright reform based on the early appearance of radio. Copyright-specific revision, when it came, was focused on other issues. Radio played a part, but the disruptive influence of radio had long since passed at that point. Instead of a nascent technology, when copyright was amended in both Britain and America, radio had already been a powerful industry for quite some time. This means that the social norms created by radio were well determinable at the time of that reform, however, it is possible to argue that these were mostly codifications of what had been established through the creation of a regulated industry and case law. Both the monopolistic nature of the British radio industry and the governmental cooperation with broadcasters in America produced a unique consequence – the lack of a need for copyright regulation. What came instead was a governmentally sanctioned or created set of industry norms that guided how the technology would interface with copyright. These gatekeepers played a key role in ensuring copyright was adhered to. In a way, this side-stepped the need to deal with social norms. One of the results of copyright being dealt with at the industry level was that it allowed the narrative to be one of “business as usual.” Legal questions surrounding the provision of copyright would have required change if the question had been whether individuals who used the technology to consume copyright works were infringers. By developing industries where the standard industry norm was copyright compliance, the question became not about individuals using the technology but rebroadcasting. The copyright questions then became familiar. Is a publican with the radio playing infringing copyright? What constitutes “public” performances? How much effort was required for a re-broadcast to be an infringement? Was the new audience created by the re-broadcast part of the original in mind of the original broadcast, and if so, did that mean it was not an infringement? So one can legislate successfully during the disruptive period. This is a time with the growth of social norms as well as the technology, and careful consideration, with input from a variety of interests, can result in lasting legislation that works. This does, however, require a greater than average consideration of the technology and norms surrounding it.

Notes

1. Mary Seelhorst, ‘Possible Dreams: Americans Listen in on the World with the Invention of the Radio’ (1992) 169 Popular Mechanics, 34–34. 2. Bruce Lenthall, Radio’s America: The Great Depression and the Rise of Modern Mass Culture (The University of Chicago Press 2007), 6.

Legislating during the disruptive period  107



3. Ron Adner and Daniel A Levinthal, ‘The Emergence of Emerging Technologies’ (2002) 45 California Management Review, 50–51. 4. Harsh Vardhan, ‘Radio Broadcast Technology’ (2002) 7 Resonance, 53–62. 5. Seelhorst (n 1), 34. 6. Adner and Levinthal (n 3), 51; Charles Bright, ‘The Useful Sphere for ­Radiotelegraphy’ (1908) 169 Westminster review, Jan.1852-Jan.1914, 400. 7. Charles Bright, ‘The Present Position of Wireless Telegraphy’ (1903) 53 The Nineteenth Century and After: A Monthly Review, 299–303. 8. OM Green, ‘Radio and Reality’ (1933) 156 Saturday review of politics, literature, science and art, 363–363. 9. ‘Broadcasting’ (1922) 134 Saturday review of politics, literature, science and art, 595–595. 10. ‘The Significance of Radio’ (1935) 11 British Musician and Musical News, 51–51. 11. Robert Henry Lochte, ‘Invention and Innovation of Early Radio Technology’ (2000) 7 Journal of Radio Studies, 93. 12. Jim Cox, Sold on Radio (McFarland 2008), 15. 13. Michael B Schiffer, The Portable Radio in American Life (University of ­A rizona Press 1991), 32; Cox (n 12), 15. 14. Vardhan (n 4), 55. 15. A Hoyt Taylor, ‘Radio Communication with Short Waves’ (1926) 22 The ­Scientific Monthly, 356–356. 16. Adner and Levinthal (n 3), 56. 17. Peter Scott, ‘The Determinants of Competitive Success in the Interwar British Radio Industry’ (2012) 65 The Economic History Review, 1303–1304. 18. While no longer the focus of the market, amateur radio enthusiasts continue today with a growing population. However, this group is now a minority in the market. ‘Amateur Radio Showing Steady Growth in the US’ (The National Association for Amateur Radio, 8 January 2014) accessed 20 June 2020. Unless otherwise stated, all online sources accessed 20 June 2020. 19. (4 Edw. 7), c. 24. 20. Peter Scott, ‘When Innovation Becomes Inefficient: Re-examining Britain’s Radio Industry’ (2014) 88 Business History Review, 497. 21. Ch. 379, 36 Stat. 629. 22. Anne P Jones and Harry W Quillan, ‘Broadcasting Regulation: A Very Brief History’ (1985) 37 Fed. Comm. LJ, 107. 23. Ch. 287, 37 Stat. 302 (1912). 24. Ch. 652 § 602(a), 48 Stat., 1064–1102. 25. Valeria Camporesi, ‘“We Talk a Different Language”. The Impact of US Broadcasting in Britain, 1922-1927’ (1990) 10 Journal of Film, Radio and Television, 257–259. 26. JM Herring, ‘Public Interest, Convenience, Or Necessity In Radio Broadcasting.’ (1932) 10 Harvard Business Review, 280. 27. Scott, ‘The Determinants of Competitive Success in the Interwar British Radio Industry’ (n 17), 1308–1313. 28. Seelhorst (n 1), 34. 29. The relative value of this would be $1860 in 2019 money terms. However, this may not be entirely accurate. The real price would be equivalent to $1860 in 2019, but the real value could be as high as $5190.00. In future, these comparisons will be made purely with the a simple purchasing power calculator and only the real price, as opposed to the real value will be listed. Details of the differences between this and the calculator can be found at Samuel H Williamson,

108  Legislating during the disruptive period











‘Seven Ways to Compute the Relative Value of a U.S. Dollar Amount, 1790 to Present’ (MeasuringWorth, 2020) accessed 20 June 2020. Price from Anand Kumar Sethi, The Business of Electronics: A Concise History (Palgrave Macmillan 2013), 31. 30. Rusty McClure, David Stern and Michael A Banks, ‘Broadcast News’ (2007) 40 Cincinnati Magazine, 122–123. 31. Equivalent to £116.90–175.40 real price in 2019 money for a commodity. See ‘Five Ways to Compute the Relative Value of a U.K. Dollar Amount, 1270 to Present’ (MeasuringWorth, 2020) accessed 20 June 2020. 32. £877.00 in 2019 money for a commodity. See ‘Five Ways to Compute the ­Relative Value of a U.K. Dollar Amount, 1270 to Present’ (MeasuringWorth, 2020) accessed 20 June 2020. £15 figure from Scott, ‘The Determinants of Competitive ­Success in the Interwar British Radio Industry’ (n 17), 1313. 33. McClure, Stern and Banks (n 30), 123. 34. The relative value of $7 in 1921 would be $100.00 in 2019 money terms. See Samuel H Williamson, ‘Seven Ways to Compute the Relative Value of a U.S. Dollar Amount, 1790 to Present’ (MeasuringWorth, 2020) accessed 20 June 2020. $7 figure from Anand Kumar Sethi (n 29), 31. 35. Allen J Singer, Stepping Out in Cincinnati: Queen City Entertainment 1900–1960 (Arcadia Publishing 2005), 111. 36. McClure, Stern and Banks (n 30), 125. 37. ibid. 38. Ralph Engelman, Public Radio and Television in America: A Political History (SAGE Publications 1996), 17. 39. United States Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1970 (US Department of Commerce, Bureau of the Census 1975), 796. 40. Louise Benjamin, ‘Working It out Together: Radio Policy from Hoover to the Radio Act of 1927’ (1998) 42 Journal of Broadcasting & Electronic Media, 221–234. 41. Jones and Quillan (n 22), 107; Benjamin (n 40), 221; Hugh R Slotten, Radio and Television Regulation: Broadcast Technology in the United States, 1920–1960 (JHU Press 2000), 43; Engelman (n 38), 19; W Jefferson Davis, ‘The Radio Act of 1927’ (1927), 13 Virginia Law Review, 611–612; Camporesi (n 25), 258. 42. W Jefferson Davis, ‘The Radio Act of 1927’ (1927) 13 Virginia Law Review, 611. 43. Slotten (n 41), 44. 44. ibid. 45. Louise M Benjamin, Freedom of the Air and the Public Interest (SIU Press 2001), 20. 46. Anand Kumar Sethi (n 29), 32. 47. The Postmaster-General (Mr Kellaway), HC Deb, 04 May 1922, Vol 153, col 1600. 48. Asa Briggs, The History of Broadcasting in the United Kingdom: Volume II: The Golden Age of Wireless (OUP Oxford 1995), 88; Camporesi (n 25). 49. The Postmaster-General (Mr Kellaway) (n 47) col 1600; RH Coase, British Broadcasting: A Study in Monopoly (Routledge 2013), 10–11. 50. The Postmaster-General (Mr Kellaway) (n 47) col 1601. 51. The Postmaster-General (Mr Kellaway), HC Deb, 04 August 1922, Vol 157, col 1957.

Legislating during the disruptive period  109 52. (33 & 34 Vict), c. 88. 53. (4 Edw. 7), c. 24. 54. Asa Briggs, The History of Broadcasting in the United Kingdom: Volume I: The Birth of Broadcasting (OUP Oxford 1995), 87. 55. Wireless telegraphy and signalling. A bill [as amended by Standing ­C ommittee C] to amend the Wireless Telegraphy Act, 1904, and to make further provision with respect to the regulation of wireless telegraphy and visual and sound signalling (1922), 210. 56. HC Deb, 16 June 1922, Vol 155, cc773–8. 57. Briggs (n 54), 71–72. 58. Briggs (n 54) 78 and Chapter 3. 59. ibid., 111. 60. The Postmaster-General (Mr Kellaway), HC Deb, 04 August 1922, Vol 157, col 1958. 61. ibid., 12; Briggs (n 54), 89. 62. The Postmaster-General (Mr Kellaway), HC Deb, 04 August 1922, Vol 157, col 1956–1957. 63. This was not an immediate determination and there was some argument that wireless telephony was not a natural extension to the Postmaster General’s powers, but in the end it was agreed. Briggs (n 48), 34. 64. See discussions of pirate radio in the 1960s such as John Woodliffe, ­‘Unauthorised Broadcasting in Offshore Waters: Silence Finally Rules the Waves’ (1991) 6 International Journal of Estuarine and Coastal Law, 371; Kimberley Peters, ‘Sinking the Radio “Pirates”: Exploring British Strategies of Governance in the North Sea, 1964–1991’ (2011) 43 Area, 281; Ian Burrell, ‘North Sea to Streaming: How Pirate Radio Went Legit’ The Independent (London (UK), 24 August 2015), 12; PR Script Managers, ‘How Pirate Radio Changed the Face of Broadcasting 50 Years On’ Diss Mercury / Wymondham &Attleborough Mercury; Norwich (UK) (United Kingdom, 17 August 2017); Helen McArdle, ‘Buccaneers of the Airwaves: How Scotland’s Pirate Radio Station Shook up Broadcasting’ Sunday Herald; Glasgow (UK) (Glasgow (UK), 3 January 2016). 65. (4 Edw. 7), c. 24. 66. Susan Smulyan, ‘Radio Advertising to Women in Twenties America: “A Latchkey to Every Home”‘ (1993) 13 Historical Journal of Film, Radio and Television, 299–302. 67. Schiffer (n 13), 59. 68. Brian R Mitchell, British Historical Statistics (CUP Archive 1988), 569. 69. Scott, ‘The Determinants of Competitive Success in the Interwar British Radio Industry’ (n 17), 1304–1305; Scott, ‘When Innovation Becomes Inefficient: Reexamining Britain’s Radio Industry’ (n 20), 500–502. 70. Scott, ‘The Determinants of Competitive Success in the Interwar British Radio Industry’ (n 17), 1314. 71. This seems likely considering the slow farm and rural uptake of radio until later in the 1930s. Steve Craig, ‘“The Farmer’s Friend”: Radio Comes to Rural America, 1920–1927’ (2001) 8 Journal of Radio Studies, 330; Scott, ‘When Innovation Becomes Inefficient: Reexamining Britain’s Radio Industry’ (n 20), 502. 72. Table R104 in United States Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1970 (US Department of Commerce, Bureau of the Census 1975), 796. 73. ibid. 74. Seelhorst (n 1), 100.

110  Legislating during the disruptive period

75. Briggs (n 48), 23. 76. Seelhorst (n 1), 34. 77. Engelman (n 38), 270; Smulyan (n 67), 301. 78. Smulyan (n 66), 301–302; Richard Butsch, ‘Crystal Sets and Scarf-Pin Radios: Gender, Technology and the Construction of American Radio Listening in the 1920s’ (1998) 20 Media, Culture & Society, 557–558. 79. Butsch (n 78), 558. 80. ibid. 81. Seelhorst (n 1), 34. 82. Butsch (n 78), 558. 83. Douglas B Craig, Fireside Politics: Radio and Political Culture in the United States, 1920–1940 (JHU Press 2000). 84. Smulyan (n 66), 301. 85. ‘Broadcasting’ (1922) 134 Saturday review of politics, literature, science and art, 595. 86. Smulyan (n 66), 301. 87. Leigh Henry, ‘Between American And British Broadcasting’ (1933) 13 The Sackbut, 128. 88. Editorial Postscript response to Mary L Pendered, ‘Radio and the Amateur’ (1928) 4 The British Musician, 37–39. 89. ‘The Significance of Radio’ (1935) 11 British Musician and Musical News, 51. 90. ‘Broadcasting’ (1922) 134 Saturday review of politics, literature, science and art, 595. 91. Lenthall (n 2) 4. 92. Vincent J Roscigno and William F Danaher, The Voice of Southern Labor: Radio, Music, and Textile Strikes, 1929–1934 (U of Minnesota Press 2004), 32. 93. Louise M Benjamin, Freedom of the Air and the Public Interest (SIU Press 2001), 1–2. 94. Lenthall (n 2), 4. 95. H Bramford, ‘Music, Wireless and the Gramophone No. 13.– Some General Notes’ (1929) 9 The Musical Mirror, 224. 96. The Postmaster-General (Mr Kellaway), HC Deb, 04 August 1922, Vol 157, 1960. 97. Harrison Brown, ‘Radio Under Fire’ [1934] Fortnightly 663, 671; Henry (n 88), 130; 98. Stephen Barnard, On the Radio: Music Radio in Britain (Open University Press 1989), 5. 99. Brown (n 97), 668. 100. Wedgewood Benn, HC Deb, 4 August 1922, Vol 157, col 1961. 101. S.B.G., ‘Infringement of Musical Copyright by Radio Broadcasting’ (1927) 75 University of Pennsylvania Law Review and American Law Register, 549–550. 102. Copyright Act 1911 (5 Geo 6 c. 46) s35(1)(c). 103. Wedgewood Benn, HC Deb, 04 August 1922, Vol 157, col 1961. 104. Ultimately it ended at the Supreme Court in Buck v. Debaum, 40 F.2d 734 (SD Cal 1929) and Buck v. Jewell-Lasalle Realty Co. U.S. Sup. Ct. 193I, Adv. Ops. Nos. I38 and I39. 105. S.B.G. (n 101), 553. 106. Remick & Co. v. American Automobile Accessories Co 298 Fed 628 (SD Ohio 1924). 107. ‘Copyrights. Radio Broadcasting Not Infringement of Copyright’ (1924) 34 The Yale Law Journal, 109–110. 108. S.B.G. (n 101), 552.

Legislating during the disruptive period  111 109. Remick & Co. v. American Automobile Accessories Co., 5 F. (2d) 411 (6th Circ. 1925). The appeal would be denied certiorari 269 U. S. 556 (1925). 110. Jerome H. Remick & Co. v. Automobile Accessories Co., 5 Fed. (2d) 411 (C. C. A. 6th 1925). 111. S.B.G. (n 101), 550. 112. 291 Fed. 776 (D. C. N. J. 1923). 113. S.B.G. (n 101), 554. 114. Benjamin (n 40), 222. 115. ibid., Slotten (n 41), 82. 116. Benjamin (n 40), 222. 117. ibid., 224. 118. ibid. 119. Jones and Quillan (n 22) 107; Benjamin (n 40), 232. 120. These provisions would ultimately be incorporated into the Communications Act of 1934 as well. Jones and Quillan (n 22), 107. 121. ibid., 107. 122. Benjamin (n 40), 233. 123. E. Barker, ‘This Age of Broadcasting’ (1935) Fortnightly Review, 417. 124. Schiffer (n 13), 103. 125. Scott, ‘When Innovation Becomes Inefficient: Reexamining Britain’s Radio Industry’ (n 20)517. 126. Brown (n 97), 665. 127. Schiffer (n 13), 104; Temporary National Economic Committee, Investigation of Concentration of Economic Power. (Monograph no 1-Price Behavior and Business Policy, US Govt Print Off 1940) 249 and Table 21, 162. 128. Craig (n 72), 331. 129. ‘Broadcasting’ (1922) 134 Saturday review of politics, literature, science and art, 595. 130. H Bramford, ‘Music, Wireless and the Gramophone No. 13.– Some General Notes’ (1929) 9 The Musical Mirror, 224. 131. Richard Bryceson, ‘The History of Sound Reproduction’ (1930) 10 The Musical Mirror, 218–219. 132. Pendered (n 88), 38. 133. Mark A Lemley, ‘Is the Sky Falling on the Content Industries’ (2011) 9 J. on Telecomm. & High Tech. L., 125, 126–127. 134. Camporesi (n 25), 262. 135. David S Landes, The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (Cambridge University Press 1969), 428. 136. Pendered (n 88), 37. 137. However, there is evidence that musicians eschewed the new technology. See Edward W Organ, ‘Musicians And Radio’ (1930) 10 Musical mirror, Jan 1929– Dec 1930, 98. 138. Pendered (n 88), 37. 139. Henry (n 87), 128. 140. Editorial Postscript in response to Pendered (n 88), 39. 141. ‘The Significance of Radio’ (1935) 11 British Musician and Musical News, 51. 142. Roscigno and Danaher (n 92), 32. 143. Lenthall (n 2), 4. 144. Roscigno and Danaher (n 92), 33. 145. ‘The Significance of Radio’ (1935) 11 British Musician and Musical News, 51–52.

112  Legislating during the disruptive period 146. Lenthall (n 2), 6–7. 147. Henry (n 87), 131. 148. Edward F Sarno Jr, ‘The National Radio Conferences’ (1969) 13 Journal of Broadcasting, 189–196. 149. See generally Henry (n 87); Brown (n 97), 663. 150. Scott, ‘The Determinants of Competitive Success in the Interwar British Radio Industry’ (n 17), 1305. 151. Scott, ‘When Innovation Becomes Inefficient: Reexamining Britain’s Radio Industry’ (n 20), 498. 152. ibid., Schiffer (n 13), 102; 153. Scott, ‘The Determinants of Competitive Success in the Interwar British Radio Industry’ (n 17), 1310. 154. ibid., 1310. 155. AC MacNeish, ‘Canadian Affairs: The Radio Commission’ (1935) 159 Saturday review of politics, literature, science and art, 412. 156. ‘Copyright. Radio. Reception and Magnification by Hotel of Broadcast of Copyrighted Music as “Public Performance” within Meaning of Copyright Act’ (1934) 20 Virginia Law Review, 911. 157. ibid. 158. Messager v. British Broadcasting Company, [1927] 2 K. B., 544. 159. Waring v. WDAS Broadcasting Station, Inc., Pa. Sup. Ct., E. Dist., Oct. 8, 1937. 160. Copyright Act 1956 4 & 5 Eliz. 2 Ch 74, s14(4)(d). 161. 4 & 5 Eliz. 2 Ch 74. 162. See debates HL Deb, 15 November 1955, Vol 194, cc498-559; HL Deb, 14 February 1956, Vol 195, cc884–966. 163. Copyright Act 1956 4 & 5 Eliz. 2 Ch 74, Section 14. 164. Herring (n 26), 280. 165. S.B.G. (n 101); ‘Copyrights: Radio Reception as Performance within ­Copyright Act’ (1931) 29 Michigan Law Review, 1076–1077. 166. ibid. 167. Jones and Quillan (n 22), 107. 168. 319 US 190 (1942).

Chapter 6

Legislating early Personal computers

“Electronic information in inherently easy to copy, and copy-protection schemes are all going to great efforts to go against a natural tendency.”1

It can be difficult to remember, with phones in our pockets more powerful than the early computers, that personal computers are a recent phenomenon. It is easy to take for granted what we know of personal computers and their roles in our lives, a role complicated by further innovations such as the Internet and cloud computing. However, in the 1970s computers were far from everywhere, and their influence on our society was only beginning its journey. Computer programs were not well known or understood as copyright legislation began to incorporate them. It is not uncommon for those legislating for computer programs to make note of their lack of technical expertise or the help with technical aspects that was received. Programs, software, hardware – even today there are individuals who do not know the difference. In truth, we may not need to know the difference, however, we need to understand enough of how computer programs are created to understand their interaction with legislation. A “program” is a broad concept and has been used to mean many aspects of computer usage and command. Today’s understanding of the term is not what it was when the legislation of computers began. In this book, we use the definition of “program” used by the Whitford Committee in 1976, which is “a series of instructions for controlling or conditioning the operation of a computer so as to make it perform certain desired tasks.”2 As Lord Morris succinctly noted, the term “software embraces programs but that the word ‘programs’ does not embrace software.”3 Software then typically included programs, but also can include supporting papers, operating manuals, and any other documentation produced for in relation to the operation of a computer.4 Software, as used in this book, is defined as both the actual computer program and the documentation that comes with it.5 Even this is minimal and hardly covers all the bases, but it begins to understand the enormity of what legislators had to grasp when they began the task of reconciling this new innovation and copyright law.

114  Legislating early

Before the personal computer One of the unique issues personal computers faced was the question of whether copyright protection was even available for this type of work. While it was clear that technologies like radio and photocopying generally used the copyright works of others, which was only part of the question with software programs. As early as 1967, publishers and authors were worried about the impact computers would have on copyright law.6 This interest drove studies and discussion on copyright and computer programs, primarily in the context of industry. Computers themselves presented challenges to intellectual property frameworks, with product turnovers too fast for the patent system and non-traditionally held “documents.”7 While the documentation could clearly be a literary work, the actual software program itself was under debate. A quintessential question was whether computer programs were anathema to copyright, in that protecting them would be equivalent to protecting an idea and not the expression of that idea.8 How do you prevent individuals from rewriting programs and claiming them to be different when in reality it is surface changes that do not significantly change the underlying basis? 1970s computer systems were “mostly command-driven” systems.9 It is unsurprising then that the questions surrounding programs would focus on programs being like “instruction manuals.” This notion was nominally taken up, but it appears that practical concerns side-lined this consideration as 134 programs were already registered in the United States by 1968.10 Operating systems, where no human-readable text was generated, still wanted for protection, but whether they and other programs should have protection was a matter of debate. Discussion in the 1960s on copyright reform focused not on copyright in computer programs, but in the appropriateness of applying copyright protection to the conversion of works into machine-readable forms.11 This being a “use of a work” seemed to fall naturally into the copyright domain. UK & International Law Concurrent to the American concerns, Britain had questions r­egarding computer programs and copyright protection. Unlike copyright in America, there is no derivation of software protection from the common law of England.12 At the time of the Copyright Act 1956, computer programs were barely heard of.13 The Act did not mention computer programs or even machine-readable works. It was generally accepted that some form of protection existed for computer programs by the mid-1970s, but without case law the position was unclear.14 By this time, there was a growing awareness of the poor logic in protecting many of the works existing as

Legislating early  115

“original” or “literary.”15 Computer programs were highlighting difficulties with existing law. The Banks Committee report of 1970 recommended that computer programs should not be patentable.16 The European and Community Patent Conventions and the Patents Act 1977 made it clear that patents were not an appropriate protection for computer programs in the United Kingdom.17 Trade secrets, which might have helped in the early days, were no longer a practical solution for software creators when personal computers allowed individuals to investigate the software in their home.18 International conventions existed, but efforts to create a uniform level of protection were ongoing. Both the Berne and Universal Copyright Conventions (UCC) did not specify computer programs in their protections. However, the general definitions of works in both treaties implied that computer programs were capable of protection. Article 2(1) of the Berne Convention states that “the expression literary and artistic works shall include every production in the literary, scientific, and artistic domain, whatever may be the mode or form of its expression.” Clearly, computer programs could fit within this definition. Article VI of The Universal Copyright Convention provided that publication was only valid when it could be visually perceived, but like Berne had a broad definition of what could be copyrightable. Therefore, the UCC only provided limited protection for numerous programs due to the nature of their storage. The lack of certainty on this prompted the World Intellectual Property Organisation (WIPO) to look at the question of computer programs in the 1970s. Their non-binding recommendations were for a form of copyright protection for computer programs, rather than monopoly creating forms of intellectual property.19 Re-using code, the art of programming, and community norms Two distinct areas of computer usage created norms that have lasted to the present. One is that of programming, developed primarily for industry but also used by individuals typically as hobbyists. While the norms for industry may be the ones generally understood, norms developed outside the industry in the wider programming community have important contributions. In the 1970s, much of the computing and software writing community was active in the hobbyist sphere, where a sense of community was created. When the beginnings of the Internet were explored at ARPA, engineers of early Internet experiments specifically identified and used the “ready-made” computer community.20 There was a sense of community which was maintained and expanded upon as the Internet arose, and these communities gave us norms that exist today, both in the computing industry and general computer usage.

116  Legislating early

By the time the personal computer arrived, programming was already more accessible. A programmer no longer had to write in the machine code itself, as they had in the ’50s. However, other constraints on programming existed. Programming is not like writing a novel, an academic article, or other work of literature. The very nature of computer programs dictate that certain combinations cannot be used.21 At the basis of every computer language is a logic, part of what is taught in computer science courses. To create a program, a programmer must establish an idea, or logic, and then transform that logic into a set of instructions for the computer to perform.22 As described in an early computer copyright case, “the programmer appears to think in the manner of a mathematician or engineer, who solves explicit problems that have defined parameters.”23 The transformation may be verbal or based on an algorithm, but either way, must be “developed by the human creativity of the programmer.”24 Software engineers saw (and still see) the essence of writing programs as a “conceptual construct.”25 For them, the genius is not in the precise minutia of the labour-intense code writing, but in the basic idea and conceptual construct and design of the program and is considered a creative process.26 This creativity is highly valued, however waiting for the creative spark to strike hindered the early industry’s ability to produce software en masse. The cost of software has always been based around the development cost, rather than the simpler, cheaper replication. For an industry that needed to produce more, faster, the answer to this was simple – use what already existed. The re-use of code norm In 1976, Bill Gates wrote an Open Letter to Hobbyists. In it, he lamented that “[a]s the majority of hobbyists must be aware, most of you steal your software.”27 Today, the truth of this continues with jokes of renaming computer programming to “Googling Stackoverflow.”28 Behind the joke lies a reality that is often misunderstood by legal minds. Re-use of code is embedded in the very act of programming. Richard Stallman fondly recalled the 1970s, where the community norm of cooperation “was our way of life.”29 The community fostered the idea that one should “give back to the network.”30 Code was written, shared, edited, and shared again without problems. Sharing programs was common. A common difficulty was that the language required to program on one platform was not compatible on others. Establishing common software for compatible computers gave the programming industry opportunities to reach larger markets as more could benefit from the efforts of a particular program. This problem was highlighted by engineers creating the Internet who sought to figure out how all the disparate architectures, languages, and frameworks could talk to each other.31 Additional problems followed this

Legislating early  117

incompatibility. If a platform was no longer supported, existing programs were useless. The growing plethora of programming languages broadly had the same goals as re-use – increasing productivity, reliability, and flexibility.32 Programming languages, like spoken languages, evolve. At the heart of programming-language development has always been the ability to adopt the beneficial innovations created by its users. UNIX, one of the languages that saw heavy use, took the tools created by users and incorporated it into the very core of the language.33 However, the influx of non-technical users exacerbated the difficulties of fragmentation and lack of software for various products. By the mid-70s, the trend in the industry to write programs on a modular basis where each module could be used in various programs to perform a standard routine.34 Those standardised routines came partially from the language used, but also other programs and programming libraries (generally developed by programming language, rather than by machine).35 These libraries contain standard sets of instructions so that programmers do not have to re-create certain commands from scratch every time a program is created. Rather than reinvent a process, standard practice was to search libraries and other programs for something that did the job and incorporate it into a program. The market need for more software directly led to this programming norm. This re-use norm not only goes directly against the ethos of copyright but tied into an ideological notion that information should be free.36 This norm heavily influenced a section of the programming community, crossing industry, technological, and social lines. It would set up the conflict between the tech industry and copyright just as the personal computer was introduced.

Early personal computers 1976–1979 The story of Apple’s personal computer taking over the market from minicomputer manufacturers is one of classic disruption. The first true personal computer to reach the market was the Apple 1, shortly after Apple was founded in 1976. In 1977, two competitors hit the market with the Commodore PET and the Tandy TRS80. The Apple 1 cost just $666.6637 when it first went on sale in 1976, but all of these were just kits that required assembly which prevented many from using them. Apple’s marketing goal was not to shoot for the hobbyists and enthusiasts,38 hitting the market early and building a reputation for technical excellence. Their main competitors in these early years were not other personal computer manufacturers, but the minicomputers that had been serving professional niche markets. Putting the price under $1,000 made the Apple 1 ideal for hobbyists, as well as attractive to businesses who may not have had the capital to front the cost of a minicomputer.39

118  Legislating early

The next step in personal computers were pre-assembled personal computers. These cost more than the early kits but were still less costly than the minicomputer by a significant margin. The Apple II in 1977 was the first product that could be purchased, and simply plugged in and used.40 This was a huge step in making computers more accessible to the mainstream customer. These early days of the personal computer created a new market. That market was characterised by numerous companies and models competing for attention,41 but it was software that actually held the key to disrupting existing markets. VisiCalc for Apple was “the real revolution”42 which changed the way financial analysts worked, shifting from pen and paper to the computer. As Mike Uretsky said, “people bought Apple computers so they could get access to the software.”43 The impact of Apple’s entry was to take current computer manufacturers by surprise. Mainframe and minicomputer manufacturers were slow to notice the personal computer, much less view it as a competitor.44 Further, prior to 1980, the number of incompatible models with high regionalisation, meant that no company could easily claim dominance of the personal computer market, much less the broader computer market.45 The Copyright Act 1976 At the time of the Copyright Act 1976, personal computers were barely on the market. Nevertheless, computer programs were swept up in the general copyright reform taken on by the US legislature in the early 1970s. While it considered copyright reform, legislators were conscious of the need to make copyright law compatible with computers, however, they also observed that “the problems are not sufficiently developed for a definitive legislative solution.”46 With all the debate surrounding the 1976 Act, Congress was unable to come to an agreement on the appropriate limits and application of copyright with regard to software. As a stop-gap measure, they legislated to keep the current state of the law as it was on December 1977:47 Some concern has been expressed lest copyright in computer programs should extend protection to the methodology or processes adopted by the programmer, rather than merely to the “writing” ex pressing his ideas. Section 102(b) is intended, among other things, to make clear that the expression adopted by the programmer is the copyrightable element in a computer program, and that the actual processes or methods embodied in the program are not within the scope of the copyright law.48 It was clear that the intention of Congress was to provide protection of computer software and not the underlying language.

Legislating early  119

While some felt the 1976 Act clarified copyright law for computer programs,49 there continued to be difficulties with protecting software. In Data Cash Systems, Inc. v. JS&A GROUP, INC., the court found that software was still not protected under the 1976 Act as it did not confer more rights than existed under the common law and the 1909 Act.50 In spite of there being a new Copyright Act, the status quo still held that the White-Smith doctrine was correct law. Lawyers speculated that the courts which had ruled that computer programs were literary works had “not fully considered the implications of their ruling.”51 The difficulty with applying the WhiteSmith doctrine to computers was the question of fixation. Without tangible fixation that human eye could read, White-Smith held that it was outside the realm of copyright. Congress changed this in the 1976 Act with a new §101, citing the “unjustifiable distinctions” wrought by the doctrine.52 The Whitford Report in the United Kingdom In 1977, the Whitford Committee was formed to examine the current state of copyright in the United Kingdom and included the question of software in their remit. The Whitford Report first attempted to give background information on what computer programs were, how they were written, and why. Whitford determined that where sufficient degree of skill and labour were involved, computer programs should be extended protection under the current act as a literary or (in rare cases) artistic works.53 It was argued that extending copyright to include computer programs under “literary” works was merely the pragmatic follow on.54 This was not universally accepted,55 especially as literary works needed to be expressed in written form under UK law.56 The Whitford Report in 1977 accepted that programs are regularly modified, leading to the possibility of easy copying with minor changes.57 The report noted that it was “quite common” for computer programs to not only pull from the experience of coders but even incorporate parts of previously written programs.58 While noting the modular design of programs, Whitford reported that the programs which are re-used or capable of being used in multiple applications had greater need of protection.59 The report took the position that any copying has the potential to be a loss in revenue, and therefore, should have protection. While acknowledging that programming can require creativity,60 Whitford failed to delve into a deeper discussion of whether this type of behaviour was beneficial or not. The closest that Whitford came to weigh the question of whether copying is acceptable is whether “use” of a computer constitutes an infringement when some or all of a program must be copied in the normal process of operating a computer.61 There is no discussion on whether the nature of programming might affect whether copying was acceptable or not. No consideration that programming does not, in fact, have the same kind of output as actual language.

120  Legislating early

Whitford’s report came close on the heels of America’s new Copyright Act, which means that it occurred just as personal computers were entering the market. As such, while it considered programs, it had no way of knowing how the personal computer would affect the market or any social norms that might flow from it. Ultimately, the Whitford Committee found that even if the 1956 Act could be stretched to include computer programs, that a specific amendment would be best for clarification.62 It was “widely accepted” that computer programs were covered by current copyright law, but unclear as to the exact scope.63 However, this report was not acted upon on for many years, which meant that by the time copyright revision actually occurred personal computers were on the market and flourishing. The CONTU report 1979 saw the long-awaited final report of CONTU which supported copyright revision and the acceptance of copyright for computer programs.64 The report followed many of the previous lines of discussion on programs, considering how to deal with the necessary copies made when a program is loaded into a computer, changed to source code, and otherwise dealt with.65 But it failed to consider the basics of programming. The industry norms of writing code, and the necessity of re-use, was not mentioned in the report. The economics of copying made up a part of the report. Citing the “several hundred independent firms,” CONTU decided that there was no evidence that copyright in programs would provide for a monopoly in the market or that any firm was close to dominating the programming industry despite IBM being hit with anti-trust complaints by the Department of Justice in 1969.66 Apple was still a bit player at this time, and Microsoft and IBM’s personal computer had not hit the market yet. Unfortunately, the report did not take into account the personal computer or the ability for individuals to copy code at home, the main impact of personal computers. CONTU was the last significant study on the subject in the United States prior to reform. Its findings would be influential in future discussions on copyright but failed to look beyond the industry’s interests or consider programming norms. Growth of commercial control of software During this period, industry norms and interests clashed with the community of programmers that had grown the industry in the first place. By the late 1970s, there was a large programming industry, where the main output was programs that were for sale or lease.67 As the software industry grew, firms protected their work through licensing and trade secrets.68

Legislating early  121

Source code became a closely guarded secret for most commercial entities. New entrants in operating systems and software would often target new customers by simply providing source code free for programmers to try out.69 With the demand for new software, the low cost of replication, and the push for copyright protection, proprietary software became more common. Companies looking for market dominance saw the benefit of and the legislature’s desire for copyright protection. Thus began the computer industry’s lobbying for greater protections.70 Industry’s desire for control and profit was in conflict with the norms within programming communities. Those opposing the industry position favoured “flexibility, tailorability, modularity and openendedness to facilitate on-going experimentation” while industry software was “characterized by the promise of control, completeness and immutability.”71 Many of the numerous programming languages and libraries created in this time were developed to “bring back the spirit of working together”72 often pushing for free software. Today’s conception of free software typically goes to Open Source or Creative Commons endeavours, however, that was not always the case. Discussing the nature of free versus commercial software, Mike Uretsky noted that in the ’60s software was “essentially free” but companies pushed to commercialise more, a cycle that he saw repeated when the personal computer was introduced.73 As software and the computer industry grew up, numerous groups and movements have pushed for a different conceptualisation of software other than the one that is industry-based. However, it was the industry’s point of view that was considered in both American and British investigations of copyright and programs. This set up the policies based on the industry’s views to be in constant and immediate conflict with the social norms of the programming communities.

The disruptive period 1980–84 “The PC wars are over. Done. Microsoft won a long time ago,” lamented Steve Jobs in 1996.74 In fact, it had happened over a decade before. Interestingly, this was not IBM’s hardware but Microsoft’s software as a disruptor. Between 1980 and 1985, the personal computer market was changed by new entrants. When Microsoft joined, there were four main competitors in the personal computer market.75 By 1981, enough personal computer copycats were on the market that “computer hardware has started to enter the next generation, one of low-cost, adequate performance machines.”76 This new computer market spurred computer hardware innovation while driving overall prices downwards. Hard drive manufacturers saw an opening and created smaller hard drives, driving the mid-range computer industry, thus sparking the cycle of disruption originally studied by Clayton M Christensen.77 Disruption occurred when hard-drive manufacturers began

122  Legislating early

to create lower capacity, smaller architectures for their products, servicing the non-mainframe computer market. Coupled with the microprocessor, the creation of software as part of the computer package changed the market. Writing programs for computers was “still largely an individual effort.”78 Most personal computers on the market were geared towards hobbyists, and a lot of programming still happened with them. At that time, the software available for businesses on personal computers primarily consisted of “standard business fare,” accounts receivable, general ledgers, accounts payable.79 Apple’s software, VisiCalc, was excellent for business customers and those who wanted to deal with financials, later branching into the higher end market niches such as graphical design and text editing.80 The market had been shown to be there for business applications, and software had flooded in for company use. This attracted bigger names in the computer industry, like IBM. While a late entrant to the market, IBM, Intel, and Microsoft’s personal computer was very different from the Apple-based products which continued to push for technical excellence. IBM was so focused on entering the market quickly that it produced a product far from being the most advanced, creating a second wave of disruption. IBM’s entry in the personal computer market was aimed at “just about everyone who has ever wanted a personal system at the office, on the university campus or at home.”81 Targeting both the first time and advanced computer user, IBM openly marketed their product at a broader audience including developing software specific for education and use in schools.82 This diversity allowed IBM’s market share to outpace Apple. Apple’s cheaper personal computers competed with the more expensive mainframe systems that IBM produced.83 In response, IBM’s first personal computer entered the market in 1981at $1,565,84 significantly reduced from the prices of IBM’s mainframe computers but not of lower cost than Apple’s personal computer. The PC, as many came to know it, was based on a modular architecture with interchangeable parts in a way that provided flexibility and diversity to suit specific needs.85 This allowed IBM to partner with corporations across the globe to create compatible computers and clones. These partnerships, clones, and the PC’s modularity allowed the price point to range from the higher end down to lower price point customers. IBM recognised the importance of software access for users and built this into the PC.86 Unix, Microsoft and IBM’s chosen operating system, was already known for its flexibility and openness.87 This improved accessibility of computers for non-mainstream customers in two ways. First in eliminating the need for hardware knowledge, and second by eliminating the need to understand or know programming. One of the classic signs of a disruptive innovation is the use of performance parameters that is lower than that of traditionally manufactured products. IBM’s PC is exemplary in this manner. Compared to other computers on the

Legislating early  123

market, IBM’s PC “was underpowered, had no graphics capabilities out of the box, and had no sound chip.”88 However, the PC came with a keyboard, had faster-processing capabilities, and “could hook up to the home TV set, play games, process text and harbour more words than a fat cookbook.”89 By all standards, this was a computer with greater capabilities than what that had come before in terms of applications. The cloning was a double-edged sword, however. In a rush to get to market, IBM allowed Intel and Microsoft to sell to other companies who created their own versions of the PC.90 In 1983 as IBM announced its personal computer to the wider global market, Microsoft had already licensed its operating system to seventy companies, meaning almost seventy clones already on the market.91 While the clones turned out to be good for the market, allowing for significant competition, it meant that IBM’s predominant position was tenuous. Microsoft’s partnerships with IBM and its clones was ultimately so successful it attracted a Department of Justice antitrust investigation due to its monopolistic position in the personal computer market,92 but that is another story. The market competition drove down prices for customers and provided them with greater choice, allowing them to find the model that best fit their needs. This meant new customers flocked to the PC. It was from this point that we see norms of computer use enter the general populace in a meaningful way. While there are many norms that grew out of personal computer use in the home,93 the more relevant ones for this discussion are those based in the industry. Continued re-use of code The personal computer created multiple new mass markets for software. By the mid-1980s, users were notably using computers without the ability to program themselves,94 a state only possible with the explosion of personal computers. New demands for data processing services coupled with general use by non-programmers created a large demand for software.95 Software production practices were being outstripped by the, cheaper and faster, hardware being produced, and the software industry was in danger of being overrun by the new demand. This demand had, until then, only been partially met through duplication and re-use of software. Re-use and duplication of software were common practices.96 In one study based on NASA’s software, twelve out of sixteen programs based 68–95% of their code on existing software.97 Even where there was purportedly zero re-use of old code, investigations found that the basic structures and modules were based on existing code. In spite of managerial practices that believed there was no re-use of code, reuse was “a fact of life.”98 What had started before personal computers continued as the norms of the programming community and were tapped to fulfil the market need.

124  Legislating early

Re-use of code was not the only solution. Conversion of programs into new languages to produce similar results was another option. One of the peculiarities of programming is that software written in one programming language can result in similar code to that of another language once compiled (or transformed) into machine code.99 The expression of an idea in a manner readable to the machine can result in similar outcomes,100 and so changing any idea into a different language could get around the compatibility difficulties, however, it duplicated work and was frowned upon in programming circles.101 This norm of working with existing programs and incorporating parts of code is one that had benefits beyond making up for the software demand gap. By having code that operated in similar ways, it assisted in establishing standardisation in software products. Packages could work together, minimising the amount of coding needed. Out of this new market demand, came a growing awareness that the disparate types of computers, programming, and languages was hampering the sharing of information and that standardisation, done effectively, would be beneficial in both meeting the software demand and with training the next generation of software engineers.102 The personal computer did much to push towards standardisation. Of course, this norm did mean that the tech community was destined to come in conflict with intellectual property. The norm pushback begins By 1984 it became “impossible” to use a modern computer without proprietary software attached to it.103 Apple was a proponent of this control, resulting in a closed platform with tight control that did not appeal to the hobbyist’s desire to tinker.104 The PC, in contrast, was based on an operating system known for its flexibility and openness.105 This was where a major split in ideology occurred. The concept of programs as a product is a legal one and is not one based on the norms that flowed from the hobbyist or early programming community. Was a computer program a service or a product? The legal community ultimately decided that the logic of computer programs was what changed hands, effectively rendering programs a product despite many programmers originally classifying it as a service.106 This “product” label went against the community norm of sharing, and there was a backlash within the programming community that resulted in the creation of the Free Software movement. A divide emerged between industry players who wanted to maximise profits through control and those who clung to the community-based ideals of the Free Software Movement (FSM). The FSM confuses many. In the FSM, “free” doesn’t mean no cost, it meant free from barriers to use and commercial practices like the secrecy of source code and licensing. This distinction was often lost to both the public and others, and eventually a

Legislating early  125

deliberate movement away from the term “free software” took place, moving towards “Open Source” instead.107 The FSM was more ideology than anything else. The FSM advocated that individuals should have freedom and control over their usage of software, rather than it being proprietarily controlled by governments or corporations. Richard Stallman and his compatriots were concerned about how proprietary programs could be used to control the users, through surveillance, imposing limits, censorship, or abuse.108 As they surmised, if you don’t control the program, then the program can control you.109 This ideology sparked new forms of rebellion like the hacker movement as well as Open Source. While this ideological divide is often characterised as industry vs hobbyists, this is an oversimplification.110 Many hobbyists went on to become industry players, and the birth and maintenance of Open Source Software projects were often carried out by those working in the industry.111 This anti-commercial ideology continued to be in opposition to the legal position surrounding programs, but was ignored when it came to legislation. US legal changes Conflict surrounded copyright and software, not just in the ideologies of the programming community. The stop-gap provisions of previous legislation were insufficient to solve the underlying conflict. This highlighted that copyright and software were still not working easily together. In the United States they attempted to solve this through new legislation. The Computer Software Copyright Act 1980 was proposed to limit the rights of exclusive owners and allow adaptations to programs for archival and utilisation without infringing copyright, but was never enacted.112 Instead, a new §117 based on CONTU’s recommendations was inserted into the Copyright Act that elucidated the limitations on exclusive rights for computer programs.113 An amendment was made to the Copyright Act 1976 to insert a definition of “computer program” into Section 101 of Title 17,114 and brought exceptions for essential changes and archival processes for programs into place. This reform, as envisioned by the legislature, broke from the White-Smith doctrine.115 The 1980 Act did not stop questions about software, however, even down to the basics of whether it was the design, the program, or the code itself that required or received protection.116 In 1982, a preliminary injunction was denied in Apple Computer v Franklin Computer on the basis that the courts had “some doubt as to the copyrightability of the programs.”117 This was overturned as an “erroneous view” of the law,118 but the questions raised in the original case were never fully answered; questions like whether the source code should qualify as an essential element of the machine or whether the programming creates a new structure or is incorporated within

126  Legislating early

the structure (which would end up affecting its copyrightability). Other cases arose that dealt with whether the participation of a player altered the copyright status of a program,119 and whether a computer program was fixed.120 All of this speculation led to Whelan Associates Inc v Jaslow Dental Laboratory.121 Defendants argued that the structure of a program was, in fact, the idea and not an expression thereof. This followed the belief of software engineers,122 but the court disagreed, taking a pragmatic approach. Allowing copyright beyond the code itself would provide the proper incentive for programmers by protecting their most valuable efforts, while not giving them a stranglehold over the development of new computer devices that accomplish the same end.123 In coming to this conclusion, no norms were discussed or considered other than the economic impact of copyright. This judgment caused significant disturbance. In the software world, it kicked off new litigation scrabbling for broad protections that had not been available before, while in the legal sphere it brought questions of whether the protections were overly broad.124 To the copyright maximalist, this was just a natural progression of how copyright and programs were understood,125 but to the programming community, it was a rejection of how they viewed the work they produced. As noticed by scholars of the time, the Whelan judgment and others that came before it failed to look beyond the specific facts of the case to consider software industry norms that benefited compatibility and standardisation.126 Not only was the question of standardisation generally ignored, but there was a marked absence of consideration of programming itself. This judgment supported industry views with more protections available, but its contradictions with the norms of programming meant continued conflict between the tech and legal spheres. UK law changes Britain also saw continued issues with their copyright law. Post-Whitford, a 1981 Governmental Green Paper and the Information Technology Advisory Panel in 1983 both recommended legislation in line with the Whitford Report even though the 1956 Act was viewed as drafted broadly enough to cover computer programs into the future.127 In 1982, the courts found copyright in assembly code valid under the 1956 Act in Sega Enterprises Ltd. v. Richards128 and under the Berne Convention in Gates v. Swift.129 Both of these decisions pertained to business interests, rather than personal computers. However, it brought the idea of copyright in computer programs to the forefront, highlighting the issues under the 1956 Act once again. In 1984, the Government undertook to make explicit new legislation. They made good on that undertaking the following year. The Copyright (Computer Software) Amendment Act 1985 was enacted quickly, an Act

Legislating early  127

surprisingly short given the amount of discussion it provoked in the House of Lords. The debate surrounding the Act demonstrates that Parliament clearly felt that providing specific protection for computer programs was “necessary” even though a more general copyright revision was expected.130 The Act was primarily brought forward to deal with the issue of software piracy, however, in doing so had to find a way of protecting computer programs within the structure of the 1956 Copyright Act. To do this, the Bill recognised computer programs as a literary work. The inclusion of computer programs under the literary category was seen as a pragmatic approach to copyright law.131 This was the first time that computer software was explicitly provided protection in the United Kingdom. Unlike their counterparts in the United States, British legislators had to consider what was going on in Europe in their deliberations. Including computer programs under copyright followed the footsteps of other European countries. The Act was intended to be an interim measure, however, the substance of this Act was incorporated with little to no discussion on whether the correct balance in the 1984 Act had been struck or whether copyright continued to be the appropriate protection for software and programs. Despite the care originally taken regarding programs and copyright, we see two possible failures in identification and understanding of the issues at hand. While Viscount Colville of Culross said this Act was “really only reinforcing what is probably the law,”132 it is clear that this was not entirely the case. Two difficulties arose that required some creative thinking. First was the question of what constituted a creative work (the fixation problem) and the second was the question of reproduction. These questions were coupled with an approach to enforcement that had not been found in the common law but had been applied two years earlier to the video market. The sponsor of the Bill, the Viscount Colville of Culross, consistently pleaded his lack of expertise in the area of both copyright and computers.133 While much advice was taken, and input was solicited from fellow members, the Viscount Colville of Culross was clearly a copyright maximalist.134 Of those in Parliament, only Lord McIntosh of Haringey was a self-styled heavy computer user by the standards of the day, claiming an interest in software as both a vendor and user with a clear industry-centric view. It is unclear whether he himself created any computer programs, but he did appear to have a greater understanding of the issues than his colleagues. Despite that understanding, he did not raise any of the social norms of programming or object to stronger protections, primarily bemoaning the difficulty in enforcement inherent in the private copying amongst computer users.135 With these two members pushing for stronger protections, almost no discussion occurred on whether other options were appropriate. The approach taken for piracy in computer programs was that which Parliament had

128  Legislating early

tried with videos two years prior. Parallels were made between the ability to copy videos at home and copying software at home, but no admission of the inherent differences between videotapes and computer programs was made or investigated other than Lord McIntosh of Haringey’s note on the difficulty of enforcement.136 Despite a clear desire to carefully manage the intersection of copyright and computer programs and efforts to do so, Parliament fell short in their consideration of the norms at play. The re-use of software during the process of software creation was not mentioned. It appears that the success of the 1983 legislation to curb video piracy bolstered Parliament’s belief that that approach was correct for dealing with piracy.137 Rather than consider the differences between the video and software markets and inherent properties of the technologies, the solution found for videos was transferred to software to be re-evaluated later if it fell short.138

Post-1984 The story of the personal computer and the law was by no means settled by these legislative attempts. The tension between community norms and the law meant that this would fester as computers became more ubiquitous. By 1985, the computer was a “commonly used item much like the automobile.”139 Unlike other disruptive innovations studied, personal computers took time to become diffuse in the population at home. In 1984, only 8.2% of households in the United States had a computer in the home.140 This doubled by 1989 to 15% but it took until 2000 for the number to reach 51%.141 However, the computer market in business and schools was significantly higher. In 1984, the number of eighteen and overs who used computers at school stood at 30.8% while 24.6% of adults used a computer at work.142 In 1997, adult access to a computer through work or school was between 47% and 62%.143 The personal computer had singlehandedly destroyed the market for typewriters, modernised offices and businesses across the globe, and changed the computer industry itself into a behemoth.144 The personal computer continued to be disruptive into the ’90s with the advent of the Internet, voice, image, and video capabilities. By the late 1980s, legal questions surrounding programs and copyright in America were still unsettled.145 The copyright revisions that occurred in the early stages of the personal computer revolution failed to deal with a number of questions, leaving the courts to sort out the questions that continued to arise. Many of the questions raised in the early ’80s litigation brought valid concerns to the fore that were echoed in later times, including questions that skirted the issues of social norms wrought by the personal computer. Debates on term limits, the tension between the tech industry and the content industry, all of these pointed to a status quo that continued to

Legislating early  129

conflict with norms. Within that, were those convinced that the “copyright monopoly” had too much power, too many rights, and that the law that supporting it was overreaching.146 The revisions that occurred in the United States were many, but ultimately, they all followed the industry’s interests. They focused on whether and how copies were made, without considering the basis of how code itself was written or the social norms of the broader programming community. Reform in the United Kingdom came in 1988.147 The 1985 Act had been a stop-gap provision to close loopholes previously identified and had been successful in codifying the law as before and bringing software into the current copyright regime. Unfortunately, the questions raised as to the appropriateness of the 1985 approach was not significantly debated. The general tone was that the 1985 Act had been successful and beneficial to the industry. It hadn’t fully stopped questions from coming, but also hadn’t taken into account the attitudes of the day or the prevalence of home copying. This led the courts to identify copyright as needing change. Whatever the reason for home copying, the beat of Sergeant Pepper and the soaring sounds of the Miserere from unlawful copies are more powerful than law-abiding instincts or twinges of conscience. A law which is treated with such contempt should be amended or repealed.148 The legislature responded with a general copyright reform. Miss Emma Nicholson came forward during the debates as a programmer with over ten years of industry experience, but her position was clearly industry and control centric. She spoke of “the uniqueness of computer software”149 and questioned whether defining computer software as a literary work was sufficient protection. Sadly, her extensive comments on the nature of software were not explored. Throughout the debate of the 1988 Act, pushes were made for greater protections for software. Much of what was considered in the 1988 reform was the question of backups.150 Some were of the opinion that computer programs came with protections against copying and those programs that did not, had the implication that copying was allowed.151 This became a point raised consistently throughout the debates but was not used to find a better balance for copyright law and software, merely as a justification for blank tape levies. The question of whether copying of the type done by programmers, that of part of the actual code, was not considered. However, others raised questions that had been heard before across the ocean. “[I]s a program stored in a computer an idea because it is intangible in form?”152 asked Sir Geoffrey Pattie. His question was never answered but formed a pointed thrust against the existing legislation and a request for better definitions throughout. The quest to update the United Kingdom’s copyright law came out of general principles, and when the time came, software was a minor footnote. Much of the balance had been established in 1985, and no major differences were made.

130  Legislating early

Making norms legal: open source The re-use of code norm has never left the programming community, however, something interesting happened long after legislative interest evaporated. Rather than continue to wholesale break copyright law, programmers found a way to make this norm legal and resolve the continued conflict. The answer came through licensing. The divide between open source and proprietary software existed because of one core belief – that information should be free. This idea of freedom is at the core of many of the issues that have arisen between the tech industry and copyright law. The FSM ideology saw the development and maintenance of GNU,153 an operating system that was designed to be free from usage constraints. In conjunction, they developed the General Public License (GPL), a “copyleft” license that allows for the re-use of code in 1988. This licensing structure was the beginning of open source software, which flourished within the community. Other open source operating systems followed suit like Linux, one of today’s most used operating systems for programmers and developers.154 Rather than begin with a closed system, these types of operating systems sought input from users on how to improve, encouraging derivations of their work. By 1993, Linux was attracting commercial usage, thoroughly blending the distinctions as the industry began using open source software to accomplish their goals. Taking licensing one step further was the eventual creation of the Creative Commons (CC) licensing suite.155 Most CC licenses work within the normal copyright framework, delineating the types of uses the creator is willing to allow for a given copyrighted work. While copyright delineates “all rights reserved,” the basis for Creative Commons licenses is merely “some rights reserved.” By choosing to limit their rights, these creators have found a way for the re-use norm of programming to become legal. These creators are using their rights to encourage the emergence of free culture. Growing out of Lawrence Lessig’s book of the same name, free culture implies the ability of others to adapt and reuse works in the furtherance of new creative works.156 The codification of free culture principles in a practical, useful manner implies that this is a social change that is becoming more widespread, an implication buttressed by the growth of internet search tools that utilise and recognise CC licenses. Commentators have cited this as evidence of a “fatal disconnect” between copyright law and society’s creative culture,157 and the use of CC licenses, in general, has been called “subversive.”158 It is only by going outside the current boundaries of traditional copyright law that the adherents to Creative Commons feel they are able to adequately represent their social values and needs. It is a norm pushback that has found a way to work within the legal system.

Legislating early  131

Beyond the potential implications of machine-readable law and enabling end-to-end licensing159 that is likely to be disruptive to the legal services sector, the CC license could qualify as disruptive to the law itself. Lawrence Lessig argues that free culture, like that espoused by Creative Commons, necessarily requires a “lawyer free” zone that allows the use of works without significant legal costs while maintaining certainty for it to be effective.160 Such “lawyer free zones” may be a cheaper legal solution for users than attempting to reform the law and is easily accessible to everyone. Most importantly, while still working within traditional licensing structures, the CC licenses change the parameter of who determines what rights exist in a creative work. Rather than accepting governmental and societal rights as provided by law, these creators, with the help of Creative Commons, are taking charge themselves. The fact that CC licenses have extended beyond the origin of computer software to be included in traditionally thought of copyright works like images and creative writing shows how popular this concept of being the one to define the rights is. On a small scale, Open Source and CC licenses, in general, present no real challenge to the law. They work within the traditional contractual licensing scheme and do not repudiate the law itself. However, in the promotion of free culture and access to copyright works, CC licenses use the legal framework to promote a change of the acceptance and understanding of copyright. Citizens who feel the need to adapt practices to find a way to comply with the law are demonstrating their dissatisfaction or disagreement with the current legal mechanisms available. Norms and Law It is striking to note the timing of much of the regulation surrounding computer programs. Both the US and UK legislation are clear reactions to a computer industry that believed itself to be fully formed. However, the disruption caused by the introduction of personal computers had not even begun when the US 1976 Copyright Act was enacted. The US Copyright Act was clearly based on an economic balance that could not include personal computers, which had yet to make it to market. The British reform in 1988 had plenty of time for the disruption of personal computers to both occur and begin developing social norms. The Free Software Movement was up and running by the time the CDPA was enacted, and the industry had been re-using code for decades. However, the changes wrought by the invasion of personal computers into the populace was not significantly considered, nor were norms outside of the typical industry line. What we see in the aftermath of all of this copyright reform is continued questions. The legal community had a hard time understanding programming and how it fit within the copyright regime. Clearly, the legislation itself

132  Legislating early

did not fully cover either future changes or even the current state of the industry and hobby. In dismissing the community norms as irrelevant or merely not understanding how program development occurred, copyright law reform fundamentally attempted to break much of the original programming community’s norms. Proprietary software and the control that came with copyright had the effect of collapsing the former programming community.161 It has been said that “[p]ublic attitudes toward the copyright law form perhaps the greatest obstacle to its enforcement.”162 It is therefore unsurprising that the social norms developed in the early programming communities played a role in the continued clashes between copyright law and the tech industry. Stallman and others would fight to bring back the feel of the former days, but copyright never fully came to grips with the core norm of re-using code. This norm is so bound to the core of how to program that its reality forms the basis of jokes.163 Even through the multitude of litigation that has occurred, this norm has continued unabated. Ironically, if legislatures had engaged more with the programming community, solutions might have been found, as the community itself was also coming to grips with the legal realities. The development of the “copyleft” idea, which accepts copyright law but builds the freedoms of open software into the licenses, was a solution that embraced the social norms developed in the community and blended them with the concept of copyright.164 As a solution, copyleft can provide great benefits to businesses, who purchase software and hire their own programmers to develop it to their specifications or continue support if the original owners went under.165 Instead, the lack of understanding has seen the tech industry and copyright law at loggerheads, with the same problems with proprietary software highlighted by Stallman in the 1980s being replicated now.166

Conclusion What we see is regulation happening based on the norms of one market and the industry view, not realising the impact that a disruptive innovation would make. The legislative solutions put forward failed to solve the issues that arose when the computer market met the personal computer. As such, we see continued issues as legislation based on the ability to profit from software creation attempts to regulate the use of individuals in the home. We see a complete lack of gatekeepers with regards to computers. Gatekeepers proved to have an instrumental role in both radio and xerography, making their absence notable. Both radio and xerography had regulatory schemes (legislation or self-imposed) that gatekeepers followed. No such position emerged for computer programs or personal computers. This seems key, considering how many difficulties continue in this area today.

Legislating early  133

The attempts by legislators to apply careful consideration, spending significant time and resources on investigating computer programs and ­copyright, shows even these difficult concepts can be dealt with. Unfortunately, all the investigations taken failed to uncover the divide within the programming industry or discover the norms that would become problematic. It is clear that the problems they thought they were solving were only a part of the equation. The continued conflicts we see after legislation is a warning that ignoring community norms created by disruptive innovations can have long-lasting effects. Like radio and xerography, computer programs continued the trend of disruptive innovations uncovering new or unknown social needs. While personal computers tapped into older norms (like in xerography), it also uncovered new ideological stances and user needs. Without understanding these, the eventual legal solution was found not by legislators, but by intrepid enthusiasts, in effect disrupting the traditional way of creating law. The final solution for many was to create licenses that worked within the existing legal framework but re-imagined the balance of rights in a fundamentally different way. Early personal computer pioneers characterised the time as a “revolution,” expecting that they were only the beginning of the story with new improvements and capabilities yet to come.167 They were right. Beyond the development of norms that ultimately challenged the legal position, the advent of the Internet, voice and video capabilities, miniaturisation, and the sharing internet culture would transform the industry into what we know today. The accessibility of personal computers, resulting in the high diffusion within the populace, made all of those later innovations possible. It is unsurprising that the norms surrounding personal computers would change over time given these substantial improvements and changing performance parameters. With the continued antagonism of the tech community and the copyright maximalists, we can see the failure of the law to respond to the changes wrought by this disruptive innovation. However, we can take these lessons and apply them to our future technologies.

Notes

1. Jeff Markoff, ‘CA Man Likens “Freeware” to User-Supported TV’ InfoWorld 15,15. 2. Whitford, ‘Copyright and Designs Law: Report of the Committee to Consider the Law on Copyright and Designs’ (1977) Cmnd 6732, para 471. 3. HL Deb, 10 May 1985, Vol 463, 870. 4. Adapted from Whitford (n 2). 5. Slight rewording of the definition provided in the Copyright Act 1976 as amended: “A “computer program” is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” 17 U.S. Code § 101.

134  Legislating early







6. Julius J Marke, ‘Copyright and Intellectual Property’ (1967) 32 Alb. L. Rev. 1, 55. 7. The lifespan of a computer chip’s viability on the market was sometimes less than the 3-5 years it would take to obtain a patent, rendering the patent system inadequate to the task. David E Sanger, ‘The Gavel Comes Down On Computer Copycats’ The New York Times (23 October 1983) accessed 20 June 2020. Unless otherwise stated, all online sources accessed 20 June 2020. 8. John Iskrant, ‘The Impact of the Multiple Forms of Computer Programs on Their Adequate Protection by Copyright’ (1968) 18 Copyright L. Symp. 92, 93. 9. Jessica Perry Hekman and Andy Oram, Linux in a Nutshell (First, O’Reilly & Associates, Inc 1996) 3. 10. Iskrant (n 8), 96. 11. Arthur J Greenbaum and others, ‘Copyright and The Computer: Why the Unauthorized Duplication of Copyrighted Materials for Use as Computer Input Should Constitute Infringement’ (1968) 114 Congressional Record 8; Iskrant (n 8); Charles H Lieb and others, ‘Economics, Automation, and Copyright’ (1968) 114 Congressional Record 10. 12. Nancy Kemp DuCharme and Robert F Kemp, ‘Copyright Protection for Computer Software in Great Britain and the United States: A Comparative Analysis’ (1987) 3 Santa Clara Computer & High Tech. LJ 257–261. 13. Copyright Act 1956, 4 & 5 Eliz. 2, ch.74; Viscount Colville of Culross, HL Deb, 10 May 1985, Vol 463, 865–75. 14. Whitford (n 2), para 479. 15. Gerald Dworkin, ‘The Whitford Committee Report on Copyright and Designs Law’ (1977) 40 Mod. L. Rev., 685, 685. 16. MAL Banks, ‘The British Patent System: Report of the Committee to Examine the Patent System and Patent Law, Banks Committee Report’ (1970) Cmnd 4407; Whitford (n 2), para 479. 17. Although it did not turn out this way in practice. Dworkin (n 15), 699. 18. DuCharme and Kemp (n 12), 258. 19. Whitford (n 2), para 484. 20. Katie Hafner and Matthew Lyon, Where Wizards Stay up Late: The Origins of the Internet (First, Simon and Schuster 1998) 78. 21. Pamela Samuelson, ‘Reflections on the State of American Software Copyright Law and the Perils of Teaching It’ (1988) 13 Colum.-VLA JL & Arts 61, 68; F Brooks and HJ Kugler, ‘No Silver Bullet: Essence and Accidents of Software Engineering.’ (1987) 4 Computer 10–11. 22. Christopher K Caswell, ‘The Classification of Software: A Logical and Rational Approach’ (1984) 24 Jurimetrics 377, 385–386. 23. Apple Computer, Inc. v. Franklin Computer Corp., 545 F.Supp. 812, 812 (E.D.Pa.1982). 24. Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc., 797 F. 2d 1222 Court of Appeals, 3rd Circuit 1986. 25. F Brooks and HJ Kugler, ‘No Silver Bullet: Essence and Accidents of Software Engineering.’ (1987) 4 Computer 10–11. 26. ibid., 18. 27. Bill Gates, ‘Open Letter to Hobbyists’ (1976) 2 Homebrew Computer Club Newsletter .

Legislating early  135 28. Stackoverflow is an online repository for computer programs, accessible to all, where code can be uploaded or copied from. ‘Computer Programming To Be Officially Renamed “Googling Stackoverflow”‘ . 29. Richard Stallman, ‘Transcript of Richard M. Stallman’s speech, “Free Software: Freedom and Cooperation” New York University in New York, New York on 29 May 2001’ (New York University in New York, New York, 29 May 2001) . 30. Gisle Hannemyr, ‘Technology and Pleasure: Considering Hacking Constructive’ (1999) 4 First Monday . 31. Hafner and Lyon (n 20), 73. 32. Saul Rosen, ‘Programming Systems and Languages 1965–1975’ (1972) 15 Communications of the ACM 591, 599. 33. Matisse Enzer, UNIX for Mac OS X (Peachpit Press 2003) ix-x. 34. Whitford (n 2), para 476. 35. Walt Scacchi and others, ‘Understanding Free/Open Source Software Development Processes’ (2006) 11 Software Process: Improvement and Practice, 95. 36. Stallman ‘Transcript of Richard M. Stallman’s speech, “Free Software: Freedom and Cooperation” (n 29); Eric S Raymond, ‘Homesteading the Noosphere’ (1998) 3 First Monday ; Brent Jesiek, ‘Democratizing Software: Open Source, the Hacker Ethic, and Beyond’ (2003) 8 First Monday ; Eben Moglen, ‘Anarchism Triumphant: Free Software and the Death of Copyright’ (1999) 4 First Monday . 37. Approximately $2990 in 2019 terms. See Samuel H. Williamson, ‘Seven Ways to Compute the Relative Value of a U.S. Dollar Amount, 1790 to present,’ (MeasuringWorth, 2020) . Price taken from Steve Lohr, ‘Used Computer, $116,000 or Best Offer’ The New York Times (23 May 2013) . 38. Erik den Hartigh and others, ‘Platform Control during Battles for Market Dominance: The Case of Apple versus IBM in the Early Personal Computer Industry’ (2016) 48 Technovation, 4–7. 39. Mini computers generally costing between $10,000 and $100,000. Gordon Bell, ‘STARS: Rise and Fall of Minicomputers [Scanning Our Past]’ (2014) 102 Proceedings of the IEEE 629. 40. Carl Helmers, ‘A Nybble on the Apple’ (1977) 2 BYTE Magazine, 10, 10. 41. Jeremy Reimer, ‘From Altair to iPad: 35 Years of Personal Computer Market Share’ (Ars Technica, 14 August 2012) . 42. Edward Bride, ‘The IBM Personal Computer: A Software-Driven Market’ (2011) 44 Computer, 34–35. 43. ibid. 44. Reimer (n 41). 45. ibid. 46. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 116 (1976). 47. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. (1976) 19 & 116. 48. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 116 (1976) 57.

136  Legislating early 49. See Louis Peter Pataki Jr, ‘Copyright Protection for Computer Programs Under the 1976 Copyright Act’ (1976) 52 Ind. LJ 503. 50. “Both at common law and under the 1909 Act, a “copy” must be in a form which others can see and read.” Data Cash Systems, Inc. v. JS&A GROUP, INC 480 F. Supp. 1063 (N.D.Il. 1979), 1068. 51. Sanger (n 7). 52. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 52 (1976). 53. Whitford (n 2), 520; Dworkin (n 15), 699. 54. David I Bainbridge, ‘The Copyright (Computer Software) Amendment Act (1985)’ (1986) 49 The Modern Law Review, 214–215. 55. Dworkin (n 15), 699. 56. DuCharme and Kemp (n 12), 261. 57. Whitford (n 2), para 488. 58. ibid para 476. 59. ibid para 474. 60. ibid para 474. 61. ibid para 497. 62. DuCharme and Kemp (n 12), 262; Whitford (n 2), para 489. 63. Whitford (n 2), para 479. 64. National Commission On New Technological Uses Of Copyrighted Works, Final Report 3-8 (1979). 65. ibid., 13. 66. The case against IBM was still ongoing at the time of CONTU’s report. National Commission On New Technological Uses Of Copyrighted Works, Final Report 3 (1979), 24. 67. Dworkin (n 15), 699. 68. James P Chandler, ‘Proprietary Protection of Computer Software’ (1981) 11 U. Balt. L. Rev., 195; DuCharme and Kemp (n 12). 69. AT&T gave UNIX away free to universities, developing a market. Hekman and Oram (n 9), 1; Moglen (n 36). 70. Chandler (n 68), 215. 71. Hannemyr (n 30). 72. Discussing Linux and the freedom that comes from being non-proprietary. Hekman and Oram (n 9) 1. 73. Stallman ‘Transcript of Richard M. Stallman’s speech, “Free Software: Freedom and Cooperation” (n 29). 74. Brent Schlender and Michael H Martin, ‘Paradise Lost Apple’s Quest For Life After Death After A Secret, Decade-Long Search For A Partner, The Company That Invented Personal Computing Will Likely Disappear. But Its Technology Could Live On To Challenge The Hegemony Of Microsoft And Intel In The Age Of The Internet. - February 19, 1996’ [1996] Fortune . 75. Thom Hogan, ‘New Computers Cause Hardware Wars’ (1981) 3 InfoWorld 1, 6; Reimer (n 41). 76. Hogan (n 75) 1. 77. Clayton M Christensen The Innovator’s Dilemma: The Revolutionary National Bestseller That Changed the Way We Do Business (First Collins Business Essentials, HarperBusiness 1997). 78. Sanger (n 7). 79. Scott Mace, ‘Retailers Use Different Marketing Avenues to Sell PC’ (1982) 4 InfoWorld 19, 21.

Legislating early  137 80. den Hartigh and others (n 38). 81. C. B. Rogers, Jr., IBM Vice President and group executive, General Business Group in ‘IBM Archives: Announcement Press Release’ (23 January 2003) . 82. Scott Mace, ‘IBM Developing Software to Put PCs in the Schools’ (1982) 4 InfoWorld 23, 23; IBM ‘IBM Archives: Announcement Press Release’ (23 January 2003) ; Deborah Wise, ‘The Colossus Runs, Not Plods - How the IBM PC Came to Be’ (1982) 4 InfoWorld, 13, 13. 83. den Hartigh and others (n 38), 8. 84. Approximately $4,400.00 real price in 2019 terms. See Williamson (n 37). 85. Brent Schlender and Alicia Hills Moore, ‘The Future of The PC’ [1991] Fortune Magazine ; den Hartigh and others (n 38), 8. 86. Wise (n82), 13; Bride (n 42), 35–36. 87. Hekman and Oram (n 9). 88. Reimer (n 41). 89. IBM, ‘IBM Archives: The Birth of the IBM PC’ (23 January 2003) . 90. Schlender and Moore (n 85). 91. Paul Freiberger, ‘Bill Gates, Microsoft and the IBM Personal Computer’ (1982) 4 InfoWorld 22, 22; Tom Shea, ‘New PC Rival Leaps on Horizon’ (1982) 4 InfoWorld 6, 6. 92. See generally United States v. Microsoft Corp., 1995-2 Trade Cases para. 71,096 (D.D.C. 1995); RJ Gilbert, ‘Networks, Standards, and the Use of Market Dominance: Microsoft (1995)’, The Antitrust Revolution: The Role of Economics, vol 3 (Oxford University Press 1998). 93. Måns Svensson and Stefan Larsson, Social Norms and Intellectual Property: Online Norms and the European Legal Development (Lund University 2009); Ben Depoorter and Sven Vanneste, ‘Norms and Enforcement: The Case against Copyright Litigation’ (2006) 84 Oregon Law Review 1127. 94. Brooks and Kugler (n 25), 17.; John D Musa, ‘Software Engineering: The Future of a Profession’ [1985] IEEE Software, 55–57. 95. Musa (n 94), 55. 96. ibid; Barry G Silverman, ‘Software Cost and Productivity Improvements: An Analogical View.’ (1985) 18 Computer, 86, 88–89. 97. Silverman (n 96), 89. 98. ibid. 99. Caswell (n 22), 392. 100. Brooks and Kugler (n 25). 101. Raymond (n 36). 102. Musa (n 94). 103. Richard Stallman, ‘15 Years of Free Software’ (GNU Operating System) . 104. den Hartigh and others (n 38), 7. 105. Hekman and Oram (n 9), 1. 106. Although this may have been for tax purposes. See Caswell (n 22), 378 and 390–393. 107. David Bretthauer, ‘Open Source Software: A History’ (2002) 21 Information Technology and Libraries, 3–9.

138  Legislating early 108. Richard Stallman and Free Software Foundation, Free Software Free Society: Selected Essays of Richard M. Stallman (Third Edition, Free Software Foundation, Inc 2015), 30. 109. ibid. 110. See discussions in Bretthauer (n 107) 3; Raymond (n 36); Jesiek (n 36). 111. Mikko Valimaki, ‘Dual Licensing in Open Source Software Industry’ [2002] SSRN Electronic Journal ; Mike Ricciuti, ‘Open Source: Rebels at the Gate’ [1995] CNETNews.com; Nicholas Economides and Evangelos Katsamakas, ‘Two-Sided Competition of Proprietary vs. Open Source Technology Platforms and the Implications for the Software Industry’ [2005] New York University Law and Economics Working Papers 36; Joel West and Siobhán O’Mahony, ‘The Role of Participation Architecture in Growing Sponsored Open Source Communities’ (2008) 15 Industry and Innovation 145. 112. H.R. 6934 — 96th Congress: Computer Software Copyright Act of 1980. 113. Pub. L. No. 96-517, 94 Stat. 3015, 3028. 114. “a set of statements of instructions to be used directly or indirectly in a computer in order to bring about a certain result.” Pub. L. No. 96-517, 94 Stat. 3015, 3028. 115. H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 52 (1976); Mary A Wilbur, ­‘Copyright Registration for Secret Computer Programs: Robbery of the ­Phoenix’s Nest’ (1984) 24 Jurimetrics, 357–363. 116. See generally Caswell (n 22); Richard H Stern, ‘Another Look at Copyright Protection of Software: Did the 1980 Act Do Anything for Object Code’ (1981) 3 Computer/Law Journal 1; Samuelson (n 21); Marc T Kretschmer, ‘Copyright Protection for Software Architecture: Just Say No’ (1988) 1988 Columbia Business Law Review, 823. 117. Apple Computer, Inc. v. Franklin Computer Corp., 545 F.Supp. 812, 812 (E.D.Pa.1982). 118. Apple Computer, Inc. v. Franklin Computer Corp., 714 F. 2d 1240 - Court of Appeals, 3rd Circuit 1983. 119. The intervention of a player was seen not to affect the eligibility of a program for copyright protections. Stern Electronics, Inc. v. Kaufman, 669 F. 2d 852 (2d Cir. 1982). 120. Programs were viewed as fixed. Williams Electronics, Inc. v. Artic Intern., Inc., 685 F. 2d 870 (3d Cir. 1982); Midway Manufacturing Co. v. Drikschneider, 543 F.Supp. 466 (D.Neb. 1981). 121. 797 F.2d 1222 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987) 1235. 122. Brooks and Kugler (n 25), 11. 123. Whelan Associates Inc, v Jaslow Dental Laboratory 797 F.2d 1222 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987). 797 F.2d 1222 (3d Cir. 1986), 1237. 124. Samuelson (n 21), 63. 125. Morton David Goldberg and John F Burleigh, ‘Copyright Protection for Computer Programs: Is the Sky Falling’ (1989) 17 AIPLA QJ, 294. 126. Silverman (n 96), 88; Samuelson (n 21), 64. 127. Viscount Colville of Culross, HL Deb, 10 May 1985, Vol 463, 866; Viscount Colville of Culross, HL Deb, 05 June 1985, Vol 464, 823–9. 128. (1982) F.S.R., 73. 129. (1982) 13 R.P.C. 339 (Chancery Division). 130. HL Deb, 10 May 1985, Vol 463, 865–75. 131. Bainbridge (n 54), 215. 132. HL Deb, 05 June 1985, Vol 464, 828.

Legislating early  139 133. Viscount Colville of Culross, HL Deb, 10 May 1985, Vol 463, 866. 134. ibid., 874: “I believe that the whole problem of copyright has been that definitions have been too narrow.” 135. Lord McIntosh of Haringey, HL Deb, 10 May 1985, Vol 463, 871–872. 136. Viscount Colville of Culross, HL Deb, 10 May 1985, Vol 463, 867–868; Lord Lucas of Chilworth HL Deb, 10 May 1985, Vol 463, 871–872. 137. Viscount Colville of Culross, HL Deb, 10 May 1985, Vol 463, 868. 138. The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Lucas of Chilworth), HL Deb, 10 May 1985, Vol 463, 873. 139. Musa (n 94), 56. 140. The Census Bureau found 8.2% of households had computers in the home. Robert Kominski and Eric Newburger, ‘Access Denied: Changes in Computer Ownership and Use: 1984-1997’, Annual Meeting of American Sociological Association (1999) . 141. U.S. Census Bureau, Current Population Survey, 2001. Jennifer Cheeseman Day, Alex Janus and Jessica Davis, ‘Computer and Internet Use in the United States: 2003’ (US Census Bureau 2005). 142. U.S. Census Bureau, Current Population Survey, October 1984 Kominski and Newburger (n 140), 15. 143. For those over the age of 18, 62.3% of those enrolled in school had access to a computer and 49.8% of those employed had access to a computer at work. See Table 1 Robert Kominski, ‘Computer Use in the United States: 1984’ (US Department of Commerce, Bureau of the Census 1988) Current Population Reports, 15. 144. Schlender and Moore (n 85). 145. Samuelson (n 21); Eric Fleischmann, ‘The Impact of Digital Technology on Copyright Law’ (1988) 23 New Eng. L. Rev., 45.; But see rebuttal by Goldberg and Burleigh who argued that more is settled and much of the worry was hyperbole. Goldberg and Burleigh (n 125). 146. Stallman ‘Transcript of Richard M. Stallman’s speech, “Free Software: Freedom and Cooperation” (n 29); Moglen (n 36); More recently, see the rhetoric of Europe’s Pirate Party and its founder Rick Falkvinge at www.falkvinge.net. 147. Copyright, Designs and Patents Act 1988 c. 4. 148. CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] UKHL 15 (12 May 1988). 149. Miss Emma Nicholson, HC Deb, 28 April 1988, Vol 132, 577. 150. Lord Williams of Elvel, HL Deb, 02 November 1988, Vol 501, 211. 151. Lord Young of Graffham, HL Deb, 02 November 1988, Vol 501, 213. 152. Sir Geoffrey Pattie (Chertsey and Walton), HC Deb, 28 April 1988, Vol 132, 541. 153. GNU = GNU is Not Unix created by Richard Stallman in 1984 in reaction to the rise of proprietary software. See https://www.gnu.org. 154. Ellie Martin, ‘What Is the Best Operating System for Coding in 2016’ (devsWorld, 3 February 2017) . 155. See Creative Commons at www.creativecommons.org. 156. Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock down Culture and Control Creativity (Penguin Press 2004). 157. Susan Corbett, ‘Creative Commons Licences, the Copyright Regime and the Online Community: Is There a Fatal Disconnect?’ (2011) 74 The Modern Law Review, 503–527.

140  Legislating early 158. Niva Elkin-Koren, ‘Exploring Creative Commons: A Skeptical View of a Worthy Pursuit’ [2006] The Future of the Public Domain: Identifying the Commons in Information Law. The Hague: Kluwer Law International. . 159. Michael W Carroll, ‘Creative Commons and the New Intermediaries’ [2006] Mich. St. L. Rev., 45. 160. Lawrence Lessig, ‘Re-Crafting a Public Domain’ (2006) 18 Yale JL & Human., 56–58. Lawyer free capabilities should include identifying public domain or copyright free works and not requiring legal intervention for understanding (such as in fair use exceptions). 161. Bretthauer (n 107), 4. 162. Fleischmann (n 147), 51. 163. ‘Computer Programming To Be Officially Renamed “Googling Stackoverflow”’ . 164. ‘What Is Copyleft?’ in ‘Licenses’ (GNU Operating System) . 165. Bretthauer (n 107), 5. 166. Kyle Wiens, ‘You Bought That Gadget, and Dammit, You Should Be Able to Fix It’ (WIRED, 22 March 2017) . 167. Schlender and Moore (n 85).

Chapter 7

Disruptive innovation and regulation

“Digital technologies are based on copying, so copyright becomes their regulator: a role it was never designed to perform.” - The Hargreaves Report1

On the face of the two concepts, there is no reason that disruptive innovations and copyright law cannot sit well together. However, the case studies and other disruptive innovations such as tape recorders2 and Peer-to-Peer networking3 suggest that there has been difficulty in reconciling disruptive innovations within copyright law. Thus far, the solutions put forth are incomplete in dealing with the impact of disruptive innovations. As a class, we know disruptive innovations provide difficulties for business managers.4 The lack of clarity on what the market may be and the attraction of the innovation (the performance parameter changes) make it difficult for business managers to understand how existing businesses will be affected. But do disruptive innovations provide greater challenges than typical innovations for legislators? Arguably, yes. The same difficulties found by business managers can be seen in legislator’s reactions to disruptive innovations. The changing performance parameters of disruptive innovations make it difficult to predict what social norms will be spawned by them or what their impact will be. Not every innovation is adopted. Innovations may spark the interest of the population, but the ones that have a lasting impact are the ones that have deeper justifications other than simply “fad” like popularity. The reasons for and the resulting impact of innovation adoption are not the same for everyone within a social system.5 Culture can impact technology adoption processes,6 and culture, at its heart, is based on societal norms. It is unsurprising that the norms created would differ within a social system. The social norms identified for radio, xerography, and computer programs were influential on societal interactions with these technologies, in spite of the lack of notice given to them by legislators.

142  Disruptive innovation and regulation

At the beginning of this book we established three key concepts:

1 Disruptive innovations uncover new or unknown social needs. 2 Disruptive technologies can highlight laws that require reform. 3 Disruptive innovations requires careful, cautious management by law reformers.

These concepts were very general but are worth exploring now that we’ve seen them in action. From there, recommendations are made for legislators who are potentially facing disruptive innovations to help them steer through the disruption to legislative success.

Innovation and norms: identifying social needs Our first key concept reads “disruptive innovations uncover new or unknown social needs.” This was explored through the growth of social norms. The first part of this is that social norms would be created through the usage of disruptive innovation. Determining how this first part is proven is simple. Were social norms created? If so, then this aspect is fulfilled. Every study produced norms, primarily during the disruptive and mature technology periods. Social norms develop from disruptive innovations as they spread through the populace. Further examination of the norms provides a thread of similarity in the norms developed. Radio created several new social norms. Of particular note were the increased quality in-home entertainment and the democratisation of information. Different usage norms grew in the United States and the United Kingdom, likely due to the approach taken on who could broadcast. The free for all nature of radio broadcasting in America allowed individuals to disseminate information in a much freer manner. Before licensing, anyone could broadcast information, and many chose to broadcast copyright works. The result is that the listening public in became accustomed to more information sources. The British norms that grew from broadcast radio came from the cultural view that the medium should be used to educate.7 The heavy control exerted by the Postmaster General meant that industrial norms of the United States were less impactful, and the norms were primarily found in the culture of radio listening that grew up in the populace. But these norms were not wholly different from the American norms, including an increase in quality entertainment. Xerography’s norms primarily tapped into existing copying norms but did create new norms surrounding the value put on the act of copying. Dissemination of copyright works like relevant journal articles could be shared easily. Whether or not this was legal is questionable, but it did and

Disruptive innovation and regulation  143

still does occur. The evidence of this cultural norm was primarily found in xerography’s mature period, but the devaluing of copying happened as xerography and its predecessors made the act of creating a copy easier. Personal computers brought a number of norms to light between industry and personal use. The re-use of code was a long-term norm that had its foundations in the programming community. Public attitudes shifted towards allowing greater use of works, causing issues with enforcement. Some of these norms came from ideologies established early in the disruptive cycle, but it spread with the personal computer. With the creation of norms confirmed, two categories of norms are visible in the research, general-social norms and industry-social norms. The dichotomy of how these are dealt with by the law are worth noting. Formal v informal norms The law is quite capable of identifying and working with social norms that are well known. This is particularly true where the norms are based on industry. It has been noted that legislators “give succour to vested interests,”8 and the question of whether the law is invested in propping up old business methods is a live one. Primarily, this can be seen in how the law amply considers known norms established within an industry as it did with radio and xerography. With broadcast radio, norms that arose within the industry were easily addressed. This was especially so in the United States where industry figures, amateur broadcasters, and government representatives worked together to establish regulation for the budding technology. Of the three case studies, this was the most open, inclusive, and collaborative approach to regulation. While there were flaws, the concerns and norms were able to be aired and represented. These conferences were not concerned primarily with copyright law.9 While the norms of the industry may have been incorporated, it was left to the courts to determine how the technology and copyright law meshed.10 Photocopying norms were clear within the library context. While it wasn’t exactly an industry,11 these norms were easily identifiable by those who dealt with it in a business-like environment. This was down to the work of the librarians who had already identified new behavioural norms and established guidelines amongst themselves, such as the Gentleman’s Agreement.12 The law was good in identifying industry norms for the most part. Working with known entities such as industry representatives and corporations provides both an understanding of the concepts at work and the norms established within that industry. Doing so ensures that expertise on the issue is at hand, that new legislation does not overly impede current business practices and helps obtain industry support for the legislative process. However, focusing on the norms brought to light by business interests

144  Disruptive innovation and regulation

focuses the discussion on profit-making activities and control. Social norms may not be the same throughout the hierarchy of an organisation, and there is dissonance between how formal and informal norms are treated by the law. One of the difficulties seen is that while the law is capable of identifying and incorporating social norms that are formal in nature, it responds poorly and does not anticipate the informal, homegrown social norms. Industry norms are more readily identifiable for legislatures as companies and industries form a natural interest group who can raise awareness of issues. The difficulty is that informal norms are difficult to identify, especially for disruptive innovations that have not reached maturity. Innovation adoption incentives come from two communication sources, the formal and informal. Informal communication lines, such as friendships, gossip, and interpersonal networks within a community are generally likely to see the spread of social norms.13 These informal communication lines are just as important for adoption as the formal ones. However, they are also more difficult to identify as there is no natural interest group to raise awareness around them. For the innovations studied, the law was very poor to deal with social norms that arose outside of industry or were not immediately identifiable within an industry. Social norms, by nature, are unwritten, unspoken, but understood intrinsically by those who adhere to them, sometimes mistakenly assumed to be obvious to all. This can result in an under-reporting of norms as it is assumed that everyone knows they exist. The difficulties in identifying informal norms are starkly noticeable within the norms that arose from the personal computer norms identified. These norms were in direct conflict with the desires of the industry for control. The re-use of code may be a standard practice for front line coders, but it may not be recognised or even known by management and policymakers at the higher levels.14 It goes against the standard business thinking of creating your own work to market. Nevertheless, this is a norm that grew up in the programming community and was well established as “normal.”15 Some of the difficulties identified later as piracy could, and likely was, related to the norm of reusing code. This norm was in conflict with the very real desire of computer software companies to control the use of their software. The piracy issue may have become pressing due to the personal computer, but it was still the interests of industry that had priority in the legislator’s agenda. Despite attempting to include different points of view, investigations of new technological uses of copyright works failed to consider the norms arising surrounding computer programs and their creations outside of industry interests.16 This may be a flaw in the standard practice of legislators and investigators asking for self-submissions from interested parties or targeted polling on issues where these do not include the general populace. With social norms,

Disruptive innovation and regulation  145

this weakness can lead to critical failures. Low-level users are unlikely to write submissions, so whether such a norm would be known by those writing a submission is questionable. Further, even if a norm is known, it may be deemed undesirable, and submissions can be written to put an end to a norm that is broadly beneficial in the community but impacts profits negatively. This makes self-submissions problematic as a way of accurately assessing informal norms. Overall, the informal norms identified in this study were norms that did not significantly impact on the law reform that occurred. Industry norms were given much greater emphasis in debates. The law reform that occurred significantly favoured industry norms which gave the impression that existing business concerns and models were the primary concern. This raises the question of whether reforms adequately dealt with the underlying social needs. Social needs from norms The social norms created by disruptive innovations are indicative of social needs or desires. Norms and needs are well linked in the literature.17 Norms, like common law, emerge from a social need.18 Social needs are harder to determine than social norms, however, the evidence points to consistent underlying social needs/desires throughout all three case studies. Social needs can be seen in these new norms. Norms are about the value we place on something or the behaviour surrounding it.19 Informal norms usually arise due to an actual or perceived need by the individuals.20 Collectively, a desire for information or access to information/copyright works can clearly be seen across the three innovations. Culturally, the works were considered valuable and desirable. But beyond that, the need for connection with the fellow man appears to be an underlying need. This coincides with psychological studies which have also identified this need.21 Radio proved that a hefty appetite for regular news and information existed. This social need for information continued after regulation of radio occurred, meaning that even once market saturation post-1931 occurred there continued to be a vigorous market. Xerography likewise tapped into the appetite for information. It grew to incorporate the need for expression through sharing works. There was a need to create multiples of one of a kind items that became nearly a societal compulsion.22 There has been explicit research on needs and computer use, which investigates the need for humans to socialise their digital environment.23 The need for connection and the social connectedness possible through computer use has exponentially increased since the personal computer’s inception. This need for connection is seen consistently, but also, we can see it in the disruptive innovations that have been created since. Downloadable music, streaming services, digital photography, desktop publishing, and even

146  Disruptive innovation and regulation

smartphones have all been identified as disruptive.24 All of these allow the dissemination of ideas and cultural works with little effort, know-how or cost. Without the push for this connectedness, would such innovations have come about? This need for connection is not something that may exist for all disruptive innovations. The disruptive innovations discussed were all in essence communication technologies. It is not surprising that a need for connection would be identifiable in a communication device which is designed to service such a need. So, this may not be applicable broadly to all disruptive innovations. However, for disruptive innovations that intersect with copyright, connectivity is a social need that should be considered by legislators. We cannot return to an unconnected world. If the trend, as seen here and in modern internet technologies, is to push for more connectivity, then the social need of connection will remain relevant to consumers. As such, laws that push this need aside may face continued difficulties. Suppressed social norms will find an outlet While industry norms may prove essential in assisting legislators to identify potential areas requiring protection or regulation, ignoring the reasons that individuals adopt a disruptive innovation and the social norms that they produce is a mistake. Failure to understand what causes diffusion at the individual or micro level is a detriment to both business managers and legislators.25 This relates to conflict, one of the key factors identified in Chapter 3. One way to determine the existence of norms is to look for behaviour that indicates the acceptance of such a norm. Acceptance of norms can be seen as viewing the behaviour as rational,26 however, it has greater importance than that. Acceptance has a further impact which is to normalise how individuals perceive the behaviour within the subgroup of adherents.27 However, without accepting a norm, it is unlikely to be complied with. Legal condemnation can have the effect of creating a norm backlash.28 Part of this backlash can be seen in increased adherence to the social norm in opposition, particularly when enforcement is removed. Backlashes occur partly because condemning a social norm, through legal punishments or otherwise, creates the idea that a great number of people are engaging in that behaviour.29 This can undercut the enforcement messages given and result in increased adherence to the unwanted norm.30 Legal condemnation or enforcement of laws that run counter to social norms can result in protest and opposition.31 Resistance signals that “something is going wrong.”32 Social norms can come into conflict with the law where it is designed to push them out. This may not be wrong in all instances. For instance, a law that limits the norm of speeding could be seen as a good thing for public safety reasons. However, a

Disruptive innovation and regulation  147

determination of whether a norm is helpful or not should be undertaken by legislators to avoid a norm backlash. This can be contrasted with radio regulation in the United Kingdom and copyright in computer programs in the United States. Both of these approaches regulated the disruptive innovation early in its life cycle without consideration of norms surrounding the innovation. Regulations put in place for radio in Britain did not take into account any of the social norms that grew up with those tinkering with radio. Those not licensed for broadcast but interested or engaged in the technology were driven underground. Social norms existed in the programming community and ignoring these norms led to further growth in the hacker community.33 Originally a community for helping each other, the antagonism between copyright-law norms and social norms forced aspects of the programming community further underground. The difficulty in ignoring norms is that adherents may continue to flout the law where it conflicts with norms they adhere to. Individuals may break existing social norms if they belong to a group which values different norms or to differentiate themselves from a dominant group.34 This may have been part of the reason the United Kingdom saw a dramatic period of “pirate radio” during the 1960s. The norm of democratising information was one that appealed to its adherents enough to flout the law with flotillas of broadcasting radio stations off the coast of the United Kingdom.35 What happened within the programming community when copyright law obliged it to go against its own norms is informative. Computer programs were regulated before the social norms from personal computers had time to become identifiable. Originally, much of the programming community was actually a reputation economy where how well you could code and how much effort you put into helping others would significantly affect your standing within the community. Copyright law was a hammer to that reputation economy. It was only when enterprising individuals found a way to make existing norms legal through Open Source and Creative Commons that some former community members were willing to engage again. This has been seen with Peer-to-Peer networking as well. Copyright policy has found that in some cases “pushing hard against the existing norms of these users has the counterproductive effect of emboldening the pre-existing anti-copyright norms that enforcement intends to combat.”36 This tendency for social norms to find an outlet, even where it means breaking existing law, is sobering. Not all norms may do this, but for a legislator who ignores norms, the consequences can be a law that is continually in conflict and that can be undermined through consistent behaviour which flouts it. A solution which fails to resolve the conflict between norms and law may be no solution at all. How do we prove that these norms have produced or uncovered new needs? Can we definitively determine that disruptive innovations uncover

148  Disruptive innovation and regulation

new or previously unknown social needs? Not without directly interviewing those who adopt the innovation. However, there are inferences that can be made about the choice to use a disruptive innovation. As discussed in Chapter 2, disruptive innovations excel at identifying customer desires that current incumbents are failing to cater to. This comes from tapping into the formerly unrecognised needs of consumers. Every innovation seeks to tap into a specific customer need and fulfil it, thereby establishing their market. Inherently, a disruptive innovation provides options within a market that may not have existed before. Providing choice allows customers to exert preferences which may not have existed before. However, disruptive innovations, as Christensen identified, are consistent in creating “unknowable” markets and market applications.37 Part of that “unknowable” market appears to be the previously unknown needs. While Christensen was considering business concerns such as profitability and market share, we can also view it as not recognising the needs of the customers that will form the attraction of this innovation. The difficulty is that it is only after social norms form that the needs can be readily identifiable. A mature market where norms have been created is most likely to incorporate the needs of its customers. This suggests that we can only easily see the needs in the market of a mature disruptive innovation with any certainty. If adoption of a disruptive innovation fulfils a previously unknown need or a need that was unserviced before, then that disruptive innovation provides a valuable avenue for growth in fulfilling social needs. This makes the disruptive audience, those who adhere to the social norms that flow from a disruptive innovation, an overlooked possibility for identification of what a majority of a population may desire. Considering social-norm adherents may prove more reliable in identifying trends that cross boundaries. However, where social needs are identifiable, it provides an opportunity for legislators to consider these needs and whether they are beneficial or require protection. Overall, the inferences drawn above coupled with the literature on markets and social norms affirms the key concept that disruptive innovations tap into unknown social needs or desires. We cannot satisfactorily answer whether the disruptive innovation was chosen by consumers because of the norms/needs involved. But at the very least, the needs/norms each innovation represents does not bother the consumers who use it.

Disruptive technologies can highlight laws that require reform This key concept is best viewed while considering the existence of conflict. Whether the conflict came from legal provisions or between the norms of a community, where there was conflict there were calls for reform.

Disruptive innovation and regulation  149

What we see from all three of the case studies is that while these disruptive innovations may have been a factor in copyright reform, they were consistently pulled into general copyright reforms. While radio did not see copyright reform during its disruptive period, copyright law was reformed during the xerography and computer program case study time periods. These disruptive innovations had profiles large enough, their impact significant enough, to be deemed relevant to include in reform legislation as a separate point even if they did not form the impetus for copyright reform. The prevailing reasons for reform appear to have been not primarily based on technological progress, but outside factors. Looking at existing copyright law and the social norms around disruptive innovations, tensions between law and the social norms prove informative. We know from above that these disruptive innovations created new social norms, but are the social norms what challenged the law or was it the disruptive innovations themselves? All of the disruptive innovations reached the notice of regulators. We see each of these innovations tackled by legislatures and specific provisions for them made within copyright law. There were three major updates to copyright law during this period; the 1956 and 1988 Copyright Acts in Britain and the 1976 Copyright Act in America. While the disruptive innovations may not have been the only reason for reform, they were specifically included in deliberations. British copyright reform in 1956, which considered photocopying processes and updated broadcasting concerns, was partially motivated by technological progress.38 The reason for reform stressed the most in Parliamentary debates was international treaty obligations. While technological progress such as improvements in radio, tape recording, and photocopying were important issues to be included, the technologies, their usage, and the social norms were not the deciding factor on when copyright reform occurred. The United States likewise had outside factors in their 1976 copyright reform. The influence of xerography cannot have been the reason reform occurred as reform was envisioned prior to xerography’s success. Copyright studies were commissioned in the 1950s, but xerography’s commercial success did not come until 1959. However, general photocopying processes were identified as an issue when reform was first contemplated in the late ’50s.39 Xerography was one way of copying printed works, and it was the norms growing from its predecessors that first highlighted the issues with copyright law. The norms of sharing works and creating copies for patrons of libraries had been in place for some time before xerography was a success. It was these norms that highlighted the need for change. If viewed as a norm, piracy was a major factor in the copyright reform regarding computer programs. The revisions for computer programs had been considered by Parliament for years before the personal computer affected the market.40 The weight given to industry interests shows that

150  Disruptive innovation and regulation

the focus was less on the impact of the personal computer and more about dealing with growing piracy concerns of industry. Piracy in the personal computer sphere was viewed dimly by Parliament and with industry interests pushing the issue, computer programs were pertinent enough to warrant specific legislation. UK legislators felt they could not wait until general copyright reform occurred to deal with the question of computer programs resulting in a computer-program specific legislation three years prior to the 1988 general copyright revision. In the United States, it was the creation of the software market, as distinct from the PC itself, that prompted legislative change.41 However, here it is more the norms and industry interests pushing for reform, not the technology itself. The re-use of code, a community norm, created a situation where coders’ behaviour could result in a dilution of a firm’s ability to sell its programs. This created an incentive to hide or stamp out that norm through the protection of programs. Broadcast radio was an exception in that it was not incorporated into copyright law specifically until very late in its life cycle if at all. However, it still highlighted the need for reform in other legislative areas. It may not have prompted copyright reform, but it did spark legislative action. Radio created the need for legislation and prompted new regulations governing the usage of the technology. It prompted swift action in the United Kingdom,42 where it was identified early that the current wireless and telephone regime may need tweaking to accommodate the new technology. While this did not result in new legislation, regulation occurred by placing broadcasters under the thumb of the Postmaster-General and the creation of the broadcasting license. Likewise, Secretary Herbert Hoover identified radio as requiring regulation early in radio’s development. Broadcast radio specifically showed the limitations of the 1912 Radio Act43 which was inadequate for the influx of new broadcasters and the interference this created. Radio saw copyright issues dealt with through the creation of gatekeepers and caselaw. The ability to identify and articulate the growing industry norms surrounding radio made it possible for regulators and industry players to work together to find solutions that incorporated copyright norms. Industry regulation substituted for explicit copyright provisions for many years by guaranteeing compliance through industry practices. Mostly, we see the norms surrounding the usage of these innovations, as opposed to the use itself, prompting calls for reform. Disruptive innovations as signposts The question that arises is whether disruptive innovations can be used as signposts. Do they point to a change that needs to be considered? The answer to that is an unequivocal yes. At the very least, disruptive innovations point to imminent market change.

Disruptive innovation and regulation  151

Regardless of how well-known an existing market is, a disruptive innovation is going to create a new wholly unknowable market.44 New markets come with new market needs and are likely to challenge existing business practices. These new markets can create difficulties for existing businesses or those whose interests can be undercut or challenged by these new markets. In this research, this included rights holders. Conflict arises as business or rights holder interests seek to find new ways to monetise and capitalise on the new innovation. Conflict was a key push for legislative intervention throughout the case studies. Whether that market change will require legislative intervention is not certain, however, it can serve as a signpost that change is coming. It can be the early warning system for legislators that technological progress has found new ways to undermine existing business models, which often coincides with calls for reform or new legislation. So how is signposting useful? One way may be in identifying aspects of legislation that may require rethinking. What we see with disruptive innovations is an opportunity to understand the market and the needs of the populace in a different way. It is the prime opportunity for evaluating existing regulation and rather than simply adding to it, considering whether the frameworks and legal mechanisms available need to change. Jo Ann Barefoot argues that disruptive innovations will require regulatory change, enable discussions that go deeper, and provide new opportunities to create better regulation as “profound shifts in technology can make it worthwhile to revisit fundamental aspects of old regulatory models.”45 As a harbinger of changing norms, needs, and markets, disruptive innovations are ideally placed to demonstrate the shortcomings in existing law to deal with current and future situations. Identifying weaknesses in current economic balances and legislation Market changes have impacts for not just those competing with the disruptive innovation but rights holders too. While not all disruptive innovations have a link to copyright law, where they do there is the potential to reach more individuals than the original market thought possible. One of the ways in which disruptive innovations highlighted the need for reform is throwing the current balance of copyright into question. Copyright literature continually stresses that copyright law is a balance. Generally, this balance is viewed as an economic balance between creators and consumers.46 Questions as to whether the current economic balance is appropriate are ongoing with scale is a part of the balancing equation.47 Part of that equation is predicated on the idea that unlimited copying is unlikely and difficult to manage. The disruptive innovations studied have consistently changed the scale of possible copying with their broad appeal.

152  Disruptive innovation and regulation

The follow on is that any economic balance struck for the original market may no longer be appropriate for the market of the disruptive innovation. The disruptive audience is one that naturally challenges existing expectations regarding that balance. It is here where we see difficulties for rights holders prompting the question is copyright propping up outdated business models? One factor is that new revenue sources can be created from those that are using copyright works, although these may not be immediately identifiable to rights holders at the outset. Radio had the benefit of bringing music to the masses, but rights holders had difficulty profiting off of broadcasts initially. Broadcast radio stations in the United States monetised through sellingadverts, saving broadcast radio from being unprofitable.48 While this might not immediately sound like a revenue stream for rights holders, it provided broadcasters with money that could be used for licensing works. While disruptive innovations have required adaptation of business models and in some cases new ways of collecting monopoly rents (such as collection societies), ultimately, they have provided new revenue streams. Disruptive innovations are likely to highlight where the current law is supporting older business models. The disruption from these innovations occurs where former market leaders suddenly find their profits dwindling due to competition from the disruptive innovation. Whether these models should continue to be supported by legislation over new innovations is a separate question entirely, but one that legislators should consider once made aware. Rushing to legislate may stifle innovation not just technologically, but in business models as well. If copyright reform has been focused on primarily the balance with industry, then the question has to be asked whether the balance struck continues to be appropriate in a private setting.49 All of the studied disruptive innovations brought in a new variable into the economic question – the private citizen. Never before could citizens broadcast works or make full, perfect copies of works for anything comparable to the cost to produce. If the economic balance was based on providing an incentive for businesses to avoid copyright infringement, then, are the punishments available appropriate when applied to individuals? Part of what we have seen in the past with these norms and disruptive innovations is a choice by legislators not to reach into the homes of individuals. American legislators put no restrictions on listening to broadcast radios, placing the burden on the broadcasters instead. Xerography was accepted with restrictions made by gatekeepers to keep individual use in check. This question has been raised more recently with the spectre of mass-infringement suits and internet piracy, particularly with regards to statutory damages.50 The norms that flowed from these disruptive innovations allowed individual use, creating the difficult prospect of enforcing the law on what

Disruptive innovation and regulation  153

goes on in the home. By spreading this technology out of the workforce and into the home, these disruptive innovations have created new spaces for infringement to occur. Any balance made without considering this space, and whether certain punishments are appropriate, is one that may need re-evaluating. In this way, disruptive innovations highlight potential balance issues in legislation. Technological progress has always had an impact on society, some more than others. Disruptive innovations do not fully fit into the mould of previous innovations which means their place within the copyright regime is less certain. Importantly, the new performance parameters and the broader audience of disruptive innovations highlight the places that the existing legislation failed to envision. There is sufficient evidence that the specific properties of disruptive innovations highlight difficulties that there may be in existing legislative balances and options. In doing this, disruptive innovations can work as signals of shifting social needs and values so that legislative gaps can be identified.

Disruptive innovations require careful, cautious management by law reformers Careful, cautious management is the advice given to business managers when dealing with disruptive innovations.51 This advice acknowledges that incumbent business managers have a difficult time both in understanding the potential of disruptive innovations during development and in understanding the possible market ramifications when they face an upcoming disruptive innovation. Our investigations sought to discover if legislators had similar issues. This key concept is wrapped with the question of when should disruptive innovations be regulated? It suggests there should be a plan for legislating disruptive innovations that takes into consideration their unique properties. It suggests that greater care should be given when legislating for disruptive innovations. The innovations studied provided interesting considerations on the timing of legislation. It would be remiss to say that any of the legislative changes studied was not given deliberate consideration and careful management. But as Christensen stressed, this advice is that further care than normal may be needed. That proved to be the case with disruptive innovations, where a failure to fully grasp the broader picture resulted in legislation that continued to spark conflict. Disruptive innovations, by their nature, defy typical business managerial expectations. As such, even business managers cannot adequately advise legislators on what to expect when a disruptive innovation meets the market. This proves equally pertinent for legislators who, like business managers, may fail to see a disruptive innovation’s potential impact at first glimpse.

154  Disruptive innovation and regulation

The evidence supports the idea that disruptive innovations are likely to create new social or industry norms, surfacing from formerly unrecognised social needs. Social norms may change over the course of a disruptive innovation’s lifetime, which means that the norms of an early market disruptive innovation may not be valid once the innovation reaches maturity. This strengthens the suggestion that legislators should be slow to act on disruptive innovations as the surrounding norms may shift. Given that all approaches to legislation were done with caution and care, it is necessary to evaluate whether the legislation was successful or not through the success or failure of solving conflict. In this way, we can determine which approaches were more successful. It is worth noting that we can also see a surprising parallel. Copyright as incumbent Rights holders form a significant demographic group that justify legal interventions. They particularly warrant legislative intervention since their rights are already buttressed by existing law. Copyright grants them their rights, and as long as they can demonstrate their rights being infringed then there are legal remedies to stop that action. This makes them a demographic group that will exist where these innovations intersect with copyright. As mentioned at the beginning of this chapter, there should be no reason why copyright and disruptive innovations that touch on it should not be able to coexist. However, there is a complication to this exposed through the research. Disruptive innovations face difficulties in the marketplace with incumbents who are competitors with greater resources, usually the providers of a prior innovation that is being disrupted. We know this from the research done by Christensen and others.52 Where a disruptive innovation intersects with copyright, it faces an added challenge. Arguably, rights holders can be seen as incumbents. They have an existing product, market dominance, and they collect rents in known ways. Disruptive innovations challenge their existing business model by creating new ways to access works that may not immediately be monetised for the copyright holder.53 As disruption is less about the innovation and more about market disruption, it is applicable to rights holders who may experience disruption to existing business models and revenue flows. Radio, xerography, and personal computers all challenged existing business models in this way. Incumbents who fail to adapt when a disruptive innovation enters the market find themselves forced to compete with the lower cost disruptive technology later to ensure their business continues.54 New infringement opportunities can come hand in hand with new monetisation options. Like business incumbents, rights holders may dismiss disruptive innovations initially as immediate threats.55 However, these cries typically only come as a disruptive innovation becomes viable, later in its

Disruptive innovation and regulation  155

life cycle. Until it begins to impact the bottom line, disruptive innovations are easily dismissed as fads or toys. Rights holders show incumbent-style thinking in their lack of acceptance of disruptive innovations once its viability is proven. The natural inclination of any incumbent is to discount disruptive innovations until they are forced to act.56 They cannot envision how they can continue to attain the same kind of profits or control over works with these new forms of access. They view any interference with the rights conferred through copyright as a threat to their existing business model.57 Disruption may present difficulties for markets, businesses, and society as they come to grips with new realities. These difficulties can expose “previously hidden problems or cause old problems to intensify.”58 These difficulties should be examined before legislative action is taken that favours one side or the other. Simply because an inequality in the market exists does not require legislative interference. Any action taken by regulators should balance policy objectives, such as consumer protection, privacy, and public welfare, with the interests of incumbents and disruptive innovators.59 Combining market disruption with incumbent thinking, there will likely be a push for regulation by those with vested interests. This was seen in all of the case studies, with industry and rights holders asking for greater protections. Legislation to date has “predominantly” protected incumbent firms and their interests,60 but this may not serve policy goals or match with social norm implications. There is a power imbalance between a disruptive innovator and copyright holder that does not exist between innovator and business incumbent. Incumbents who find themselves unable to compete with disruptive innovations have a history of using regulation to find an advantage, especially as existing legislation and policies primarily favour incumbents in the market. Rights holders are no exception to this, and they seek greater protections from legislatures every time a new innovation threatens their business model.61 This is typical behaviour for an incumbent. This imbalance exists between competitors in the market, however, it is exasperated when copyright is the incumbent because it is not in a fight on the open market but an infringement of rights. Unlike direct competitors in a market, rights holders don’t have to find a business solution to their market share dropping. As soon as rights are involved, the disruptive innovator has a significantly higher burden and stiffer opposition. This would suggest that legislators need to deeply evaluate claims by rights holders before acting on them in order to prevent stifling innovation unnecessarily. Caution v speed? There was a contrast of approaches visible in the legislation surrounding the studied disruptive innovations. There were essentially two paces set by legislatures when legislating in regard to disruptive innovation. One was

156  Disruptive innovation and regulation

to take their time and let the market settle. The other was to rush through legislation, often by incorporating the innovation under existing legislation. All three innovations saw incidences of legislation early in the life cycle. Radio in Britain was co-opted into existing legislation almost as soon as it was on the market. Xerography was brought into copyright law before it had become commercially successful. Personal computers saw copyright reform that affected them early in their lifecycle in the United States, in essence as they became available to the public.62 British copyright reform happened during the personal computer’s disruptive period. The regulatory story of these early legislative efforts was to see difficulties between law and existing norms for some time afterwards. While discussion occurred, it is not clear that they spent extra time considering the full ramifications of these innovations or the social norms that flowed from them. The difficulties seen with computer programs is illustrative. Copyright came early for personal computers in both the United States and the United Kingdom. A significant amount of time and was expended on studies leading up to regulation. Both legislatures put primary significance on industrial concerns, without identifying the underlying norms within the industry itself that might cause conflict. This likely led to many of the difficulties faced by copyright and computer programs down the line. Piracy, norm backlashes, and questions on the suitability of copyright continued despite reform. Overall, this legislation was fraught with the most difficulties to overcome. Legislating early saw difficulties arise. Whether that was in piracy or public outcry, incorporating the disruptive innovations quickly led to additional signs of conflict. This additional conflict was a sign that the issues had not been fully resolved. This approach could not and did not incorporate a fully informed evaluation of social norms, even industry norms in some cases. Contrasting this, we have the approaches to radio and xerography. During the disruptive period of its lifecycle, American radio saw legislation built with the assistance of the growing industry. The legislative reform for xerography in the United States came once it was a mature technology. Generally, these approaches were more successful than those brought in earlier in the disruptive cycle. Perhaps the most lauded of these legislative approaches was Hoover’s government-led Radio Conferences which included submissions from various stakeholders. Hoover’s inclusion of stakeholders, continually developing propositions until both industry and government were satisfied, showed a great degree of care. The Radio Act of 1927 that came out of those deliberations not only created an industry but enshrined certain norms within the legislation. Hoover’s care and work with the budding industry to find a solution that worked for most ensured that the interests were heard and truly understood. It was not a governmental understanding of the radio industry, but a faithful one. Hoover’s radio program was one of the more successful pieces of legislation studied,

Disruptive innovation and regulation  157

incorporating existing and growing norms while establishing gatekeepers. This resulted in the incorporation of norms and fewer incidences of conflict after the Act. Similarly, the norms and challenges facing xerography were well understood, even where legislation happened earlier. The norms growing around xerography were identifiable by those in proximity to them, such as librarians. This is likely because the norms in conflict with copyright were long-standing issues that had arisen with xerography’s predecessors as well. The solutions brought forward resolved the tensions of the norms, technology’s use, and copyright. This made considering what to do with them easier for legislators, who could be given a fuller picture. What was known about photocopiers at the time of legislating meant that economic balances and the impact of photocopying on rights holders could be considered, not merely guessed.63 While all legislation created for radio, xerography, and computer programs was given consideration, very few did so in a way that incorporated the norms surrounding the innovations. If the norms are highlighting the difficulties with an existing law, then these may not be seen until a disruptive innovation has matured and become truly widespread. This suggests that a cautious approach is prudent as it allows time for these norms to develop and become identifiable. It is not enough though that time is taken to create legislation. A true understanding of the innovation’s disruptive properties, the norms that flow from it, and an awareness of the interests at play is necessary for more effective conflict resolution. Ideally, legislative reform to include a disruptive innovation should result in less conflict. Disruptive innovations may cause conflict in a number of ways, from market upheaval to changing business models. But the extent of the disruption and possible conflict is unlikely to be known for some time. That conflict is likely to come from norms surrounding the use of the innovation, and as such, this can take time to establish. The more successful legislative programs did this by not rushing to regulate. Ultimately, taking time and caution when creating legislation that intersects with a disruptive innovation has created legislative solutions with the greatest success. Time allows the disruptive innovation and its market to mature, creating space for social-norm growth and identification. This also gives legislatures time to evaluate the claims of industry and other interests. Caution is beneficial in ensuring that solutions adequately address all interests and does not overly restrict innovation or prop up old business models.

Regulating disruptive innovations What is the best approach to regulating a disruptive innovation? Disruptive innovations, as a class, have proven difficult for regulators. Their changing performance parameters and broader audiences

158  Disruptive innovation and regulation

are difficult to easily understand and fit within the copyright regime. However, knowing this does not assist the regulator in understanding how to approach these innovations. From the evidence of this research, we have developed five principles which regulators should consider when faced with a disruptive innovation. Principle 1: disruptive innovations will present as something familiar but are not the same thing It is easy to look at a new technology and think you know how it works. It is even easier when the salesman explains that it is just a better version of something you already know. It can be comforting to link a new technology with a known one, as it helps us understand how that technology can fit within our lives, homes, or work. This is the argument put forward when encountering new disruptive innovations and suggesting they should be regulated similarly to an existing technology. However, this is a dangerous approach with disruptive innovations because there are new or formerly unknown social needs that these innovations service. The key component of a disruptive innovation is the changing performance parameters. While it may compete in an established market for a time, it will ultimately create a new market that can outpace the existing one because of these new performance parameters.64 There will be parallels that are similar to existing technologies, however, the change in performance parameters will be a sea change in the technology once it grows into a mature market. Additionally, this suggests that these innovations may identify issues with existing legislation that similar, but non-disruptive, innovations do not. This again comes back to the changing performance parameters which will affect how the innovation operates and interacts with its environment in totally different ways. This should also be something the court is aware of during cases, with the caveat to be wary of “lookalike” comparisons where a disruptive innovation is involved. It is always tempting to try to understand a new innovation as merely a better version of an existing one, but a failure to acknowledge the changing performance parameters or social norms from a disruptive innovation can cause injustices and legal uncertainty. By ignoring the disruptive properties, this can create legal uncertainty.65 Understanding the change in performance parameters is where regulators can see how a disruptive innovation is different from a similar-seeming innovation. Regulators should be wary of adopting disruptive innovations into existing legal paradigms as their differences can cause norm backlashes. It is this key aspect that will both cause issues and differentiate these innovations from the rest. This necessitates more than a cursory consideration of a disruptive innovation.

Disruptive innovation and regulation  159

Principle 2: market saturation is not needed, but technology maturity is desirable for understanding a disruptive innovation’s impact It is tempting to view a technology as the entirety of a problem. To do so is overly simplistic and detrimental to the creation of successful regulation. Disruptive innovations do not exist in a vacuum and it is in how they are used that we see the greatest amount of conflict. It is vital to identify the social needs these innovations tap into and understand the market and market disruption that may occur. As Christensen warns business managers, a market cannot be analysed if it does not exist.66 This is as true for legislators as it is for business managers. Regulators should take care that they are not working off of a changing market that may continue to evolve. Doing so can result in legislation that solves the problems of one market but is applied to another where its suitability is questionable. This can be seen in the legislation of computer programs. Copyright reform included computer programs based on an incomplete picture of the norms that existed in the industry and how personal computers would affect the market. This resulted in continued conflict. Market saturation was unnecessary for successful regulation to occur. Legislators were able to identify and consider the issues raised even without market saturation. A majority of the populace does not need to have access to a disruptive innovation for it to begin to form new social norms that may impact on the success of regulation. For example, programmers were still a niche market segment when regulation occurred, but the norms established have continued to cause difficulties. Further, it does not have to fully displace the previous technologies to have an impact. However, it does need to advance to a point where its impact can be identified and measured for a study of that market to be useful. Successful regulation requires an understanding not just of a disruptive innovation and its market but the norms that it spawns. These norms will take time to develop, but without understanding them it is possible that norm backlashes will occur, whether through issues with piracy or public outcry. Avoiding norm backlashes resulted in the least amount of continued conflict in our studies. To do this, a mature technology provides the most accurate assessment. Principle 3: early legislative reform enacted prior or during disruption can face challenges from unforeseen consequences of adoption The business world has recognised that not every innovation is easily adopted. People and businesses adopt innovations for both rational and irrational reasons.67 Understanding the reasons behind an innovation’s

160  Disruptive innovation and regulation

adoption can be crucial to designing law that appropriately deals with the consequences that flow from adopting that technology. Doing so, carefully considering the true impact of a disruptive innovation when reforming law is the way to success. Disruptive innovations create markets that do not exist until they are created, resulting in “unknowable” market implications.68 Some of those implications are norms. As with business managers, it is difficult for legislators to evaluate and successfully understand these implications and norms while a disruptive innovation is growing. We see this time and again with disruptive innovations, even where market studies were conducted.69 This happens because as the disruptive innovation grows, the market shifts towards an emphasis on the changing performance parameters which changes markets to focus on these as well. At the early stages of disruptive innovations, these technologies are searching for their new customers. The initial market is likely to follow similar patterns to other technologies.70 However, initial users are unlikely to use the disruptive innovation for the same uses or reasons as the eventual market. As mentioned in Principle 1, regulating a disruptive innovation as if it was a similar technology can cause potential issues. The consequences of doing so can be norm backlashes and continued conflict. This resistance can be a sign that individuals are unhappy with the status quo.71 Disruptive innovations can uncover social needs, and these underlying needs can drive resistance beyond what is expected. Where an individual’s need is met with legal impediments, this can result in non-compliance. Therefore, understanding the needs these innovations are serving is vital in avoiding unnecessary complications. Unexpected consequences of adoption have been consistently seen with social norm growth. Social norms need time to develop and even more time to become identifiable. Legislating early means that the final market may not have become established enough for widespread effect. This can also apply when incorporating disruptive innovation into existing law. To legislate early is to legislate based on an incomplete understanding of the uses and social norms that will result. More successful legislation will take the time to understand not just the initial market, but the eventual one that has broader appeal and the norms that flow from it. Principle 4: late legislation can still provide adequate protection for rights holders Linked to the previous principle is the pressure placed on regulators by rights holders to provide further protections. However, part of careful management includes ensuring the balance of rights is appropriate for all concerned. Being pressured to create further protections for rights holders may result in an inappropriate balance of rights and power within a market.

Disruptive innovation and regulation  161

Rights holders have always been uncertain when new technologies arrive. New technology challenges current business models and profit pathways, creating uncertainty for rights holders. Disruptive innovations do this in ways that are unexpected. Disruptive innovations take time to become established and only then are the social norms particularly visible. Disruptive innovations are likely to highlight the need for reform. Disruptive innovations do this by identifying possibilities not anticipated by legislators. These possibilities may warrant new legislation. The new performance parameters of disruptive innovations are a sea change in the market, and this provides an opportunity for legislators to evaluate existing legislation.72 The waiting game, while frustrating for rights holders, provides the clearest picture for legislators to base their work on. In the meantime, the judicial branch has proven capable of handling difficulties that arise. With every innovation studied, the judiciary filled the legislative gap when specific regulation for copyright did not exist. While there is the possibility that innovations may fall prey to being placed in the same category as other, non-disruptive innovations resulting in injustices as discussed under Principle 1, the judiciary can continue to provide remedies where infringement occurs. Where such injustices occur, it can act as a signpost that reform needs to occur. The flexibility of the common law approach provides disruptive innovations and their social norms time to develop and be understood. It gives legislators time to fully grasp the issues at play and also to gauge whether legislation is required at all. And ultimately, the judiciary can ensure that no rights holder is without a remedy where infringement occurs. This can provide the time needed for legislators to investigate and develop legal solutions. Principle 5: consider gatekeepers All the disruptive innovations discussed have resulted in new members of the public coming into contact with copyright works in new ways. Each of these technologies opened up the movement, enjoyment, or use of copyright works not just to new people, but in new, less centrally-controllable ways. One of the biggest themes that came out of the data is the importance of gatekeepers. Gatekeepers were identified as a possible indicator of the likelihood of legislation and were the second most consistent demographic group identified in the case studies, with rights holders being the first. Regulators who wish to follow a careful approach would benefit from considering the formation or identification of gatekeepers. A gatekeeper’s key role in the smooth application of copyright law with regards to disruptive innovations cannot be understated. If there isn’t an easy way to control the dissemination, then piracy problems arise. The concept of reaching into someone’s home to impose copyright law is fraught with enforcement difficulties. Regulating gatekeepers is significantly easier.

162  Disruptive innovation and regulation

A gatekeeper functions as a natural point of control. Consistently with new technology, we see struggles against control in the copyright sphere.73 The use of disruptive innovations has proven difficult to control with their broad audience appeal.74 All three of these disruptive innovations made control of copyright works harder for rights holders outside of gatekeepers. The ease of dissemination to those in possession of the disruptive innovations made old forms of control, such as pricing and licensing, harder to employ in their traditional role. The trouble of the reader becoming a publisher was noted with xerography and foretold the difficulties with digital technologies we see today.75 However, gatekeepers were able to effectively curtail abusive practices within their purview. The more successful legislation in this research largely created or clarified the role of gatekeepers as a source of responsibility. Beyond the prevention of infringement, gatekeepers provide a surety for rights holders. It is far easier to identify and therefore bring a case against a known gatekeeper than it is to investigate an incident conducted in someone’s own home. Where a gatekeeper is regulated, it can minimise breaches of copyright, to begin with. It is worth pointing out that no natural gatekeepers were identified when copyright was applied to computer programs, and it was the case study that saw the most difficulty in settling the conflicts between the norms and law. Without any form of gatekeeping, the spread of computer programs, and later cultural works, became a huge piracy problem, recognised even before the full extent of the personal computer’s impact was seen.76 This brings us back to the question of whether an economic balance is suitable. Gatekeepers can have problems, and so this approach may have drawbacks. Gatekeepers by their very nature can block out certain viewpoints as there is typically an entry barrier for setup and operation, such as license requirements. Balancing freedom of expression and control points is a tough act, but one that should not fully deter the use of gatekeepers. Gatekeepers can also struggle with disruptive innovations.77 Existing gatekeepers can be side-lined, face changing market incentives, or even face disruption themselves. Gatekeepers are not always going to be appropriate, but where the potential for copyright infringement inside the home is a possibility, they can create points of control that can assist in the prevention of infringement as well as providing responsible actors for rights holders to work with. Considering whether the structure of an industry provides an opportunity for regulation,78 or whether such structure could/should be created legislatively, can be a successful way of ensuring copyright law is enforced more effectively. Disruptive innovations provide unique challenges to regulators, rights holders, and law. As a class of innovations, they have consistently been identified as warranting special attention by regulators. Whether it is in the creation of new markets or norms, these innovations are in a unique position to throw the spectre of technological progress into the field of law.

Disruptive innovation and regulation  163

This research was bounded by three key concepts. Investigating them required a foundational knowledge of each disruptive innovation’s history, the history of relevant law and legislative reform, and an exploration of the social implications of each innovation’s usage. This led to timelines of innovation, social norm development, and legal reforms. What we see in these timelines is a story of disruption that not only impacts the market and users but the law as well. Disruptive innovations consistently highlighted the need for reform to include the unforeseen consequences of their adoption. These consequences included not only the social norms that grew from the use of disruptive innovations as they became popular but also social needs that were previously unknown, which the innovations shone a light on. Identifying the needs of users is difficult. Social norms are not directly social needs, but they can reflect them. Because of the nature of needs and desires, the implications of the needs that are gleaned may be only partially true. However, with significant links in the literature between norms and needs, these implications are within the realm of possibility. Even if we cannot identify the actual need of an individual user, there is sufficient evidence to point to a need existing. This allows the creation of a potential plan of action for regulators faced with disruptive innovations. Greater care needs to be taken when dealing with these innovations. Investigations of the approaches taken by the various legislatures provided a broad range of approaches and timing. The approaches varied from inclusiveness of all interested parties, to significant investigation of solely industry markets, to no consultation or investigation at all. This gave us good examples of legislation with varying degrees of success. The approaches that took extra care to be inclusive of both industry and private interests tended to provide solutions that solved the conflict between the disruptive innovation and law the best. Overall, these three key concepts worked together to provide principles that regulators can use when faced with disruptive innovations. Like the business managers before them, regulators will have to face disruptive innovations with care and caution, balancing aspects of technologies that may not be immediately visible. Using the principles derived above, they should find a path to successful regulation.

Notes

1. Ian Hargreaves, ‘Digital Opportunity: A Review of Intellectual Property and Growth: An Independent Report’ (2011) 14, s1.18. 2. P Bernt Hugenholtz, ‘The Story of the Tape Recorder and the History of ­Copyright Levies’, Copyright and the Challenge of the New, vol 25 (Kluwer Law International 2012). 3. Robert Moore and E McMullan, ‘Perceptions of Peer-to-Peer File Sharing among University Students’ (2004) 11 Journal of Criminal Justice and Popular Culture 1.

164  Disruptive innovation and regulation













4. Maxwell Wessel and Clayton M Christensen, ‘Surviving Disruption’ (2012) 90 Harvard Business Review 56; Clayton M Christensen, The Innovator’s Dilemma: The Revolutionary National Bestseller That Changed the Way We Do Business (First Collins Business Essentials, HarperBusiness 1997); Clayton M Christensen, ‘The Ongoing Process of Building a Theory of Disruption’ (2006) 23 Journal of Product Innovation Management 39. 5. Sridhar A Raghavan and Donald R Chand, ‘Diffusing Software-Engineering Methods’ (1989) 6 IEEE software 81. 6. KD Loch, DW Straub and S Kamel, ‘Diffusing the Internet in the Arab World: The Role of Social Norms and Technological Culturation’ (2003) 50 IEEE Transactions on Engineering Management 45, 45. 7. Mr Kellaway, HC Deb, 04 August 1922, Vol 157, 1960. 8. Gustavo Ghidini, Innovation, Competition and Consumer Welfare in Intellectual Property Law (Edward Elgar Publishing 2010) 11. 9. Although copyright issues did see discussion in the Fourth Conference in 1925. Louise Benjamin, ‘Working It out Together: Radio Policy from Hoover to the Radio Act of 1927’ (1998) 42 Journal of Broadcasting & Electronic Media 221, 231. 10. Jerome H. Remick & Co. v. Automobile Accessories Co., 5 Fed. (2d) 411 (C. C. A. 6th, 1925); Messager v. British Broadcasting Company, [1927] 2 K. B. 544; Buck v. Debaum, 40 F. (2d) 734 and Buck v. Jewell-Lasalle Realty Co. U.S. Sup. Ct. 193I, Adv. Ops. Nos. I38 and I39. 11. Although the ‘copying as a service’ norm became a new business after the growth of photocopying services. See businesses such as Kinko’s. Michael G Anderson and Paul F Brown, ‘The Economics Behind Copyright Fair Use: A Principled and Predictable Body of Law’ (1993) 24(2) Loyola University Chicago Law Journal 37, 147. 12. The “Gentleman’s Agreement” of 1935 in George P Bush, Reprography and Copyright Law (American Institute of Biological Sciences 1964) 157–158. 13. Raghavan and Chand (n 5), 83. 14. Although where the high level management is someone like Bill Gates or Steve Jobs who was part of the system before, this may not be the case. 15. Richard Stallman, ‘Transcript of Richard M. Stallman’s Speech,” Free Software: Freedom and Cooperation” New York University in New York, New York on 29 May 2001’ (New York University in New York, New York, 29 May 2001) accessed 12 May 2020. All online resources in this chapter have been accessed 12 June 2020 unless otherwise stated. 16. National Commission On New Technological Uses Of Copyrighted Works, Final Report 3–8 (1979). 17. Lee Loevinger, ‘Science, Technology and Law in Modern Society’ (1985) 26 Jurimetrics J. 1, 3; See Eric A Posner, Law and Social Norms (Harvard University Press 2000), 18–27; Samuel A Stouffer, ‘An Analysis of Conflicting Social Norms’ (1949) 14 American Sociological Review 707, 708; Richard A Posner, ‘Social Norms and the Law: An Economic Approach’ (1997) 87 The American Economic Review 365, 366. 18. For explanation of common law emerging to serve new social needs see David Lieberman, The Province of Legislation Determined: Legal Theory in ­Eighteenth-Century Britain (Cambridge University Press 2002) 122. 19. Posner Law and Social Norms (n 17); Ann E. Towns, ‘Norms and Social ­Hierarchies: Understanding International Policy Diffusion “From Below”‘ (2012) 66 International Organization 179, 187.

Disruptive innovation and regulation  165 20. Raghavan and Chand (n 5) 85. 21. See Maslow’s Hierarchy of Needs. Abraham H Maslow, ‘A Theory of Human Motivation.’ (1943) 50 Psychological Review 370. 22. John Brooks, ‘Xerox Xerox Xerox Xerox’ (1967) 43 The New Yorker, 87. 23. Jerry J Vaske and Charles E Grantham, Socializing the Human-Computer Environment (Intellect Books 1990) 133. 24. Nazrul Islam and Sercan Ozcan, ‘Disruptive Product Innovation Strategy: The Case of Portable Digital Music Player’ in Ekekwe Ndubuisi and Nazrul Islam, Disruptive Technologies, Innovation and Global Redesign: Emerging Implications (IGI Global 2012) 28; Patrik Wikström, Robert DeFillippi and Sinnreich Aram (eds), ‘Slicing the Pie: The Search for an Equitable Recorded Music Economy’, Business Innovation and Disruption in the Music ­Industry (Edward Elgar Publishing 2016); Michael B Horn and Heather Staker, Blended: Using Disruptive Innovation to Improve Schools (John Wiley & Sons 2017), 87; Jeff Dyer, Hal Gregersen and Clayton Christensen, The Innovator’s DNA: Mastering the Five Skills of Disruptive Innovators (Harvard Business Press 2013); Jan Ondrus and Yves Pigneur, ‘An Assessment of NFC for Future Mobile Payment Systems’ (IEEE 2007) 3; Simon Columbus, ‘Is the Mobile Phone a Disruptive Technology? A Partial Review of Evidence from Developing Economics’ in Ekekwe Ndubuisi and Nazrul Islam, Disruptive Technologies, Innovation and Global Redesign: Emerging Implications (IGI Global 2012). 25. Loch, Straub and Kamel (n 6) 45. 26. Allan Gibbard, ‘Moral Judgment and the Acceptance of Norms’ (1985) 96 Ethics 5, 11. 27. Posner Law and Social Norms (n 17). 28. Ben Depoorter, Francesco Parisi and Sven Vanneste, ‘Problems with the Enforcement of Copyright Law: Is There a Social Norm Backlash?’ (2005) 12 International Journal of the Economics of Business 361, 367. 29. Joanne R Smith and Winnifred R Louis, ‘Group Norms and the Attitude-­ Behaviour Relationship’ (2009) 3 Social and Personality Psychology Compass 19; Depoorter, Parisi and Vanneste (n 28) 367. 30. Smith and Louis (n 19). 31. Depoorter, Parisi and Vanneste (n 28) 362. 32. Martin Bauer (ed), Resistance to New Technology: Nuclear Power, Information Technology and Biotechnology (Cambridge University Press 1995) 3. 33. Eric S Raymond, ‘Homesteading the Noosphere’ (1998) 3 First Monday ; Richard Stallman and Free Software Foundation, Free Software Free Society: Selected Essays of Richard M. Stallman (Third Edition, Free Software Foundation, Inc 2015); Eben Moglen, ‘Anarchism Triumphant: Free Software and the Death of Copyright’ (1999) 4 First Monday . 34. Posner Law and Social Norms (n 17) 28–29. 35. One of the things most popular about the pirate radios were their willingness to take requests from listeners. Helen McArdle, ‘Buccaneers of the Airwaves: How Scotland’s Pirate Radio Station Shook up Broadcasting’ Sunday Herald; Glasgow (UK) (Glasgow (UK), 3 January 2016); Kimberley Peters, ‘Sinking the Radio “Pirates”: Exploring British Strategies of Governance in the North Sea, 1964-1991’ (2011) 43 Area 281, 282. 36. Depoorter, Parisi and Vanneste (n 28) 367. 37. Christensen, The Innovator’s Dilemma (n 4) 165.

166  Disruptive innovation and regulation 38. Lord Chancellor, HL Deb, 15 November 1955, Vol 194, 499 & 502; Lord Jowitt, HL Deb, 15 November 1955, Vol 194, 544; Lord Chorley, HL Deb, 14 February 1956, Vol 195, 933 & 943, Lord Mancroft, HL Deb, 14 February 1956, Vol 195, 934. 39. Borge Varmer, ‘Study No. 15 Photoduplication of Copyrighted Material by Libraries’ (United States Government Printing Office 1959) . 40. 1976 saw the birth of the personal computer, but the market was not impacted meaningfully until IBM’s entry in 1981; See also Whitford, ‘Copyright and Designs Law: Report of the Committee to Consider the Law on Copyright and Designs’ (1977) Cmnd 6732. 41. Gustavo Ghidini and Emanuela Arezzo, ‘Dynamic Competition in Software Development: How Copyrights and Patents, and Their Overlapping, Impact on Derivative Innovation’ (2013) 3 Queen Mary Journal of Intellectual Property 278, 279. 42. Asa Briggs, The History of Broadcasting in the United Kingdom: Volume II: The Golden Age of Wireless (OUP Oxford 1995) 88; Valeria Camporesi, ‘“We Talk a Different Language”. The Impact of US Broadcasting in Britain, 1922–1927’ (1990) 10 Journal of Film, Radio and Television 257. 43. Ch. 287, 37 Stat. 302 (1912). 44. Christensen, The Innovator’s Dilemma (n 4) 165. 45. Jo Ann S Barefoot, ‘Disrupting FinTech Law’ (2015) 18 Fintech Law Report, 9 9. 46. Fiona Macmillan, ‘Libraries, Copyright and Digitisation’ (2000) 8 Australian Law Librarian 36, 37; Andrew Gowers, Great Britain and Treasury, ‘Gowers Review of Intellectual Property’ (HMSO 2006); Mark Fox, Tony Ciro and Nancy Duncan, ‘Creative Commons: An Alternative, Web-Based Copyright System’ (2005) 16 Entertainment Law Review 111, 113. 47. Deven R Desai and Gerard N Magliocca, ‘Patents, Meet Napster: 3D Printing and the Digitization of Things’ (2014) 102 Geo. LJ 1691, 25. 48. W Jefferson Davis, ‘Copyright and Radio’ (1929) 16 Virginia Law Review 40, 49–50. 49. Pamela Samuelson and Tara Wheatland, ‘Statutory Damages in Copyright Law: A Remedy in Need of Reform’ (2009) 51 William and Mary Law Review 75, 442–443; John Tehranian, ‘Infringement Nation: Copyright Reform and the Law/Norm Gap’ [2007] Utah L. Rev. 537; James DeBriyn, ‘Shedding Light on Copyright Trolls: An Analysis of Mass Copyright Litigation in the Age of Statutory Damages’ (2012) 19 UCLA Entertainment Law Review 79. 50. J Barker, ‘Grossly Excessive Penalties in the Battle against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement’ (2004) 83 Tex L. Rev. 525; Samuelson and Wheatland (n 49); Tehranian (n 49); Stephanie Berg, ‘Remedying the Statutory Damages Remedy for Secondary Copyright Infringement Liability: Balancing Copyright and Innovation in the Digital Age’ (2008) 56 J. Copyright Soc’y USA 265; DeBriyn (n 49). 51. Christensen, The Innovator’s Dilemma (n 4); Geoffrey A Moore, ‘Crossing the Chasm-and Beyond’ in Burgelman et al., Strategic Management of Technology and Innovation (5th Edition, International Edition, McGraw-Hill 2004); George R White, ‘Management Criteria for Effective Innovation’ [1978] Technology Review 21; John T Gourville, ‘Eager Sellers and Stony Buyers: Understanding the Psychology of New-Product Adoption’ (2006) 84 Harvard Business Review 98 in Robert Burgelman, Clayton M Christensen and Steven Wheelwright, Strategic Management of Technology and Innovation (5th edn, McGraw-Hill 2009), 827.

Disruptive innovation and regulation  167 52. Christensen, The Innovator’s Dilemma (n 4); Joseph L Bower and Clayton M Christensen, ‘Disruptive Technologies: Catching the Wave’ [1995] Harvard Business Review 43; Christensen, ‘The Ongoing Process of Building a Theory of Disruption’ (n 4); Constantinos Markides, ‘Disruptive Innovation: In Need of Better Theory’ (2006) 23 Journal of Product Innovation Management 19; Wessel and Christensen (n 4) 56. 53. Mike Masnick, ‘Innovation Asymmetry: Why The Copyright Industry Always Freaks Out About New Technologies | Techdirt’ (Techdirt., 27 January 2014) ; Michael Carrier, ‘Copyright’s Blind Spot: The Innovation Asymmetry’ (Disruptive Competition Project, 18 December 2013) . 54. Paul Vlaar, Paul De Vries and Mattijs Willenborg, ‘Why Incumbents Struggle to Extract Value from New Strategic Options: Case of the European Airline Industry’ (2005) 23 European Management Journal 154, 159. 55. Initially having one’s work played on the radio was not objected to. Davis (n 48) 40. 56. Vlaar, De Vries and Willenborg (n 54) 159. 57. Masnick (n 53); Carrier (n 53). 58. Scott D Anthony, The Silver Lining: An Innovation Playbook for Uncertain Times (Harvard Business Press 2009) 7. 59. Wulf A Kaal and Erik PM Vermeulen, ‘How to Regulate Disruptive Innovation From Facts to Data’ (2017) 57 Jurimetrics 169. 60. ibid. 61. Neil W Netanel, ‘Why Has Coyright Expanded? Analysis and Critique’, New Directions in Copyright Law 3–4. 62. Camporesi (n 42) 259. 63. Although there was some debate as to whether the photocopier had as great an impact as industry said, it was clear there was some impact. Varmer (n 39) 50. 64. See Christensen, The Innovator’s Dilemma (n 4) xix and Chapters 7 & 9. 65. Steve Donohue, ‘Aereo Can’t Be Compared to Cablevision DVR, Broadcasters Tell Supreme Court’ (FierceCable, 10 November 2013) ; Monica Horten, ‘The Aereo Dilemma and Copyright in the Cloud’ (2014) 3 Internet Policy Review ; Julian Sanchez, ‘The Supreme Court’s Aereo Effect Might Evaporate Silicon Valley’s Cloud’ The Guardian (25 June 2014) ; Joan E Solsman, ‘How Supreme Court Ruling Affects Aereo, the Cloud, and You’ (CNET) . 66. Christensen, The Innovator’s Dilemma (n 4) xxv. 67. Raghavan and Chand (n 5) 86. 68. Christensen, The Innovator’s Dilemma (n 4) xx and 165. 69. See National Commission On New Technological Uses Of Copyrighted Works, Final Report 3–8 (1979); Whitford (n 40); Abraham L Kaminstein, ‘Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law’ (1961); Varmer (n 39). 70. Moore (n 51); White (n 51).

168  Disruptive innovation and regulation 71. Bauer (n 32) 3. 72. Barefoot (n 45). 73. Lionel Bently, ‘Copyright and the Victorian Internet: Telegraphic Property Laws in Colonial Australia’ (2004) 38 Loy. LAL Rev. 71, 88; Lionel Bently, ‘Art and the Making of Modern Copyright Law,’ in Dear Images. Art, Copyright and Culture, ed. Daniel McClean & Karsten Schubert (London: Ridinghouse, 2002), 341; Raymond Boyle, ‘Battle for Control? Copyright, Football and European Media Rights’ [2015] Media, Culture & Society 0163443714567020; James Beniger, The Control Revolution: Technological and Economic Origins of the Information Society (Harvard University Press 1986); Christopher Vidiksis, ‘How to Buffer Your Way Out of a Scrape: Potential Abuse of the Cartoon Network v. Cablevision Decision’ (2009) 4 Brook. J. Corp. Fin. & Com. L., 139; Måns Svensson and Stefan Larsson, ‘Intellectual Property Law Compliance in Europe: Illegal File Sharing and the Role of Social Norms’ (2012) 14 New media & society 1147; Stefan Larsson, ‘Conceptions in the Code: What “the Copyright Wars” Tell Us About Creativity, Social Change and Normative Conflicts in the Digital Society’ (2012) 4 Societal Studies 1009. 74. Julius J Marke, ‘Copyright and Intellectual Property’ (1967) 32 Alb. L. Rev. 1, 55. 75. Eric Fleischmann, ‘The Impact of Digital Technology on Copyright Law’ (1988) 23 New Eng. L. Rev. 45, 50. 76. Viscount Colville of Culross, HL Deb, 10 May 1985, Vol 463, col 866. 77. Chris Brummer, ‘Disruptive Technology and Securities Regulation’ (2015) 84 Fordham L. Rev. 977, 1035. 78. Barefoot (n 45) 10–11.

Chapter 8

The principles at work

The question on the business world’s mind is “how do we know what will be the Next Big Thing?” In other words, where should a business be investing its money in order to lead the company to profit both in the present and future? This question, while vital for business concerns, does not help the law-maker who need not care about failed iterations of new technologies. If a product does not make it to the market, there is no need to regulate or legislate for it, excepting a product whose illegality requires vigilance and prevention. For example, one can imagine that a drug with certain properties could be legislated against prior to its introduction to the general populace for safety reasons. In the previous chapter, five Principles were identified that can assist lawmakers when legislating for disruptive innovations, but how does one apply them to modern issues? Radio, xerography, and computer programs may be useful to consider how the law has responded to disruptive innovations in the past, but these don’t answer the big questions surrounding technology today. The Internet, social media, and mobile devices have changed how we interact with the digital world and our expectations of technology. Legal minds are still trying to capture the latest technologies within existing legal structures to varying success. While all laws are created in the hope that they are forward-looking and can be applied to future unknowns, one of the inherent characteristics of disruptive technologies is the difficulty in predicting what will be next. As such, intellectual property laws have been criticised as outdated or not fit for purpose in the newly disrupted world. The gap between law and technology has been filled by judicial decisions, applying existing, older law to future ideas. This chapter is speculative in nature, considering how one would apply the concepts and principles developed previously to current modern disruptive innovations. Choosing an innovation to study is not as simple as looking for innovations that challenge copyright or the status quo. Christensen makes the point that many sustaining improvements may still be “discontinuous or radical in nature.”1 So any discussion that applies the principles developed

170  The principles at work

must still necessarily consider whether that innovation is disruptive at all. This may be difficult to determine depending on how early an innovation is in their life cycle. Modern disruptive innovations prove difficult to study, particularly where it comes to social norms. Principle 2, that market saturation is not needed, but technology maturity is desirable for understanding a disruptive innovation’s impact, is easily in evidence when considering any modern technology. The Next Big Thing is in the process of disrupting markets now which makes it difficult to predict what its final impact will be. For any study, questions over the evidence gathered must be asked. Proving that today’s norms are widespread enough requires more than just an author’s belief to that fact, however, academic studies on the subject may not exist or still be in the research phase. The difficulty with requiring evidence of social norms is that they often exist without written consultation. They become “common knowledge.” This presents two difficulties. Firstly, commonly-held or known ideas are less likely to be reported in the media as they do not constitute noteworthy news. Secondly, the question of how common is a certain piece of “common knowledge” is difficult to identify with certainty. For example, usage of social media amongst cohorts vary wildly. This can be seen by the explosion and popular usage of one social media at a time. At various points in time, MySpace, Bebo, and Facebook have each been the king of social media.2 Social norms helped develop this and are partially why we see the predominance we do of various platforms. Each of the platforms mentioned has had their heyday, but eventually, Facebook reached a critical mass. Since then, new social media sites have had difficulties breaking into Facebook’s grip on the coordination norm3 of social media. This norm changes, too, depending on your social group, with the younger generations eschewing Facebook and trying out the newer social media platforms.4 While it might be “well known” that Snapchat is better for “being real” than Facebook for young social media users, that may not be the case for all users.5 The norms that are generated around these technologies shift as the desires of their users change, and users find themselves further involved, the more of their peers that use that platform. The coordination norm helps perpetuate Facebook’s success. If I wish to see where my friends and family are, and they are part of 1.73 billion people who daily used Facebook in 2020,6 it is likely that this will become my social platform of choice in spite of privacy concerns. As individual users share the norms, this encourages others to follow suit,7 creating a normative belief that “everyone is there.” It becomes difficult, then, for newcomer platforms to break into the market because the coordination norm does not exist for those new players. This could be one of the reasons that Google+ failed to gain traction when it launched despite having numerous benefits over Facebook.8 “What people

The principles at work  171

failed to understand was Facebook had network effects,” one Google+ employee said.9 Most discussions have focused on the technological issues, but those “network effects” could also be social norms, particularly the coordination norm, resisting change. So social norms are affecting modern technologies whether they are easily visible or not. We can see this with one of the largest disruptive innovations in our lives today, the internet.

The disruptive internet The Internet itself is disruptive. Radical, yes, but also disruptive, the internet has re-shaped our society in fundamental ways. Without going into too much depth, viewing the legislative history of the internet through the lens of a disruptive innovation is illustrative. Without realising the internet’s disruptive properties or how they should be considered, legislators may have missed the opportunities highlighted by this disruptive innovation. In an effort to not overreach and not create law on topics they did not fully understand, lawmakers deferred to the lobbying of innovators and provided legal frameworks that benefited innovation growth. This has had consequences as the internet is the perfect example of a disruptive innovation where gatekeepers are vital to controlling the dissemination of copyright works. Instead of regulating gatekeepers as per Principle 5’s recommendation, law makers took a hands-off, liability-free approach. Legislation was specifically designed to prevent liability from attaching to internet service providers, not imagining that eventually users would not only be viewing content but creating it in far greater amounts than platforms did in the early days of the internet. Arguably, this is Principle 3, which early legislative reform enacted prior or during disruption can face challenges from unforeseen consequences of adoption, in action. This has proven to possibly have been a mistake, and the law has slowly been shifted to put more liability on service providers, whether they be ISPs, content platforms, or social media sites. The mistake, of course, comes from the lack of understanding on how the internet would grow and the norms it would generate. The role of ISPs, content platforms, and social media sites has meant that when someone had to be held accountable, in many cases they were the only viable option. You cannot sue someone you cannot identify, and without starting with these service providers, appropriate defendants cannot be found and in cases of mass infringement, it is only online service providers who can effectively prevent such continuance. Additionally, courts and legislatures have changed their approach, paying service to Principle 4. Whether it is being forced to turn over user information,10 restrict access to infringing websites,11 or remove content uploaded by users,12 bit by bit online service providers are being made to take on the gatekeeping role that they probably always should have had. Growing

172  The principles at work

obligations under copyright law, data protection, and ensuring freedoms have been imposed both legislatively and through the courts. This of course has created serious issues. How do you impose liability on a framework specifically designed with the idea that it would be shielded from such without serious consequences? The failure of online platforms to police themselves is garnering criticism and has meant that legislators have taken action. We saw these issues raised with the adoption of the Copyright Directive in 2019.13 How does one act as a gatekeeper without being obliged to monitor (another right given to ensure liability would not fall on ISPs)? The Copyright Directive was viewed as Big Tech v Law Makers, but it was once again the result of normative changes that were abutting existing law. By 2020, one year after adoption, the Copyright Directive was facing legal challenges, continuing the story of conflict.14 Additionally, the “lookalike” problem highlighted by Principle 1, that disruptive innovations will present as something familiar but are not the same thing, has meant that legal decisions have been consistently decried as inappropriate by the tech community. The Aereo case is a perfect example of this.15 Aereo had created a system wherein the user controlled what was saved, what was broadcast, and created individual copies for each user. All of this complied with the legal requirements of Cablevision that ruled that remote facilities that acted like DVRs were not infringements.16 The material difference was that Aereo used internet services to do this, providing their customers with access anywhere from their existing devices without the need for a physical DVR, and they were not a cable company themselves. In ruling that what “looks like a cable system” should be held liable like a cable system, the US Supreme Court ignored the disruptive properties of Aereo’s antennae system and the “access anywhere” norm that has been developing for years,17 resulting in a lack of clarity in the law for cloud computing in a broader sense.18 Aereo’s crime was, as Justice Scalia noted, guilt by resemblance, the fate of many disruptive innovations and what Principle 1 warns against. Meanwhile, internet piracy has continued to be a problem. Attempts at website blocking and removal of content have been met with repeated uploads, resulting in a constant stream of effort for rights holders and service providers.19 Here, at least, we can see changing business models available to rights holders. Consumption patterns shifted with the provision of on-demand streaming services. Streaming services have provided an answer in similar ways as Open Source did for programs. Access has become something valued by customers, and some turned to piracy when legal access wasn’t available. While there are pirates who aren’t likely to change their mind, there has been a lowering of piracy by providing streaming services,20 an option that fits with the norms already developed by customers. Without a solution by legislators to allow users to continue to use works in the way they want to, the market has found a way of legitimising the behaviour and

The principles at work  173

social norms that fits within the system. However, there are clear outliers meaning piracy continues to be a problem, and rights holders continue to push for greater liability and responsibility for service providers. The ongoing conflict between online service providers and rights holders demonstrates that perhaps copyright or how it is applied online should be reconsidered. The laws originally intended to spur innovation on the internet are now becoming significant hurdles for the continued application of copyright as we know it. The internet, as a disruptive innovation, is pointing out that our existing laws are not working for the new reality it has created. This hasn’t passed by those concerned with copyright. The Copyright Directive in 2019 was a response to the changes the internet has undertaken and an attempt to provide a modern approach. In the 2020 Copyright Office Section 512 Report, the changes wrought in the internet were identified as key issues for rights holders.21 The balances originally struck with the Digital Millennium Copyright Act has proven insufficient to the task of regulating an internet where users have such ease to copy, post, and view works. It is not too late to consider new legislation for the internet and the actions performed there. Devising new laws or simply tweaking existing ones, to more adequately find the balance between rights holders and online service providers can still provide better protections for rights holders but could take the time to envision a better approach. In applying Principle 4, that late legislation can still provide adequate protection for rights holders, legislators could take the time to create a framework for regulating online content that takes all stakeholders into consideration as well as the social norms of connectivity and access. They could encourage rights holders to embrace solutions that may better match the social desires of consumers, and find an appropriate balance between rights holders and the public for today. All of this makes the internet difficult to study for our purposes as it has so much law and norms attached to it. And in many ways, its disruptive potential has already happened, meaning we are still looking at the history of the internet, and not a brand new emerging technology. Instead, let us look at a topic on everyone’s minds these days, artificial intelligence.

Artificial intelligence: disruptive innovation or not? One of the basic considerations is whether artificial intelligence (AI) is a disruptive innovation at all or whether it is merely a radical invention that we haven’t seen before. Not all radical innovations are disruptive, and without disruption, the wisdom developed here may not apply. It is tempting to be surprised at the “rise” of AI in recent times, as the Washington Post did in 2015 claiming “‘Soft’ Artificial Intelligence Is Suddenly Everywhere.”22 However, the truth is that AI has been working its way into our society for decades. AI is not just the visible “smart speaker”

174  The principles at work

voice assistant like Amazon’s Echo, Google Home, or Apple’s Siri. Standalone AI applications like these are in fact a minority. Artificial intelligence research began in the 1950s and progressed to reality in the 1960s.23 In 1961 programs were capable of playing checkers at a master’s level24. By the 1990s, AI principles were being embedded in various ways to provide search, recovery, and even analysis of large data whether through intelligent agents, intelligent browsing, or search engines.25 By 2004, AI-assisted search applications were being patented.26 This growth shows a long timeframe, a standard in many disruptive innovations. AI began small, with few applications beyond early adopters specifically interested in AI. As it has grown, its applicability and usability for individuals has dramatically increased, broadening the market from games and data usage to general assistance. That market has seen dramatic price drops for access to AIs, to the point no additional price is added for access to Apple’s Siri when you purchase one of their products and Google Home is available for free. Accessibility for users has dramatically grown. Early AI required programming knowledge, but now we have “conversational AI.” As Google opined to developers “Unlike menus, touchscreens, or mouse clicks, using our voices to have conversations is one of the most natural ways to use a computer; it requires no learning curve.”27 This makes the new artificial intelligence dramatically more accessible to the general populace than their humble beginnings in the mid-20th century. As for the most important aspect, changing performance parameters, what greater performance parameter is there than the de-coupling of human effort and intelligence from traditionally intellectual tasks? Autonomous agents can now perform functions formerly reserved for humans. While this brings great promise, it also has philosophical implications for society. Additionally, the difference in time achievable when tasks are done with artificial intelligence is a changing performance parameter. Like the adoption of other technology, once you can do something faster with AI than with human effort or prior technology, people have done so.28 All of this points to artificial intelligence as disruptive innovation. So where are we on the disruptive curve with AI? Arguably, this is only the beginning of AI’s lifecycle. One of the difficulties in exploring AI’s disruptive potential is the simple question what is the market for AI? Do you confine it to merely voice assistants or do you include the less obvious AI like search engines or programs that use AI principles? While many people have access in limited form to AI services, very few have actual access to AI beyond what is provided through the big tech companies. The AI currently available is primarily “soft” or designed to solve a specific problem whether that is answering questions or algorithmically looking for data trends.29 Hard AI, which would have the full hallmarks of human intelligence, has yet to become a feature of the market if it ever will. Therefore, there is significant

The principles at work  175

scope for growth in what AI can do, which means the market can still continue to change. It seems clear that the questions about the market and the potential normative influences of AI are vast. This doesn’t prevent us from considering it in the context we have developed, but the natural next question is – has it spawned any social norms? AI’s social impact What social norms come from the use of AI? Historically, humanity has been poor at successfully predicting the social impact of technology.30 It is clear that agents such as AI have the potential to affect social norms,31 and that artificial intelligence itself is likely to follow existing social norms. AI agents have the capabilities to share the norms we have in society and are often designed to follow existing norms.32 Some espouse making AI follow existing norms as part of the design to ensure human/AI relations are easy.33 But what norms have they created that do not come from our own norms? The social norms from using the current AI applications are difficult to pinpoint and goes to a very important quandary that has plagued artificial intelligence discussions for years, known as the AI effect. The AI effect is that as soon as an artificial intelligence is found to work and is incorporated within a system, it becomes dismissed as not actually AI. “If you could see how it was done, people seemed to think, then it couldn’t be intelligence.”34 Once AI quietly worked in the background of programs, it became merely a “useful helper” instead of intelligence.35 Indeed, we can see this in today’s attitudes to AI in today’s technologies. Apple’s Siri, Amazon’s Echo Alexa, and Google Home are lauded as the birth of AI for the home, discounting the fact that most individuals who use the Internet have been using search engines, which often have AI working in the background or creating their algorithms. This complicates the social-norms discussion. Additionally, it is hard to see what you are a part of, so in order to see what we’re living, perhaps looking at what was expected to change can guide us. Discussions as AI was birthed focused on a number of anticipated growing social norms. The most consistent expectations included the displacement of human effort in intellectual and practical ways and cheaper provision of labour, both of which have come to fruition in various ways. Our current early-21st century society is facing pressures from these as robotics and intelligent agents progress and remove jobs from the workplace. However, considering norms and AI may be made easier if we focus on the other aspect of this book, copyright. Sharing copyright works has become a social norm across the internet. It is no longer enough for many to enjoy a work but to share it with friends and family, a social desire that has been assisted by the platforms themselves. This need to share, so like the need to

176  The principles at work

share seen in our photocopying discussions, has driven the production of easy-to-use sharing tools. We no longer need to know how to download and upload images, although this process has also been made easier with entire apps and sites dedicated to doing so without any technical knowledge. This need to share has resulted in the explosion of content that copyright holders must cope with. The response to this has included the use of AI. Norms have developed significantly in the copyright sphere in using intelligent agents to seek and identify copyrighted works as well as determining actions after identification. AI and copyright: solving and creating problems Artificial intelligence and copyright has been an interesting story. Much of the law literature on artificial intelligence has focused on the potential for the creation of copyright works by AI.36 Machine learning has given the concept of authorship new considerations, with the potential for the creation of copyright works by authors that are not human. Rather than consider this a radical application, this could be an extension of the unforeseen consequences of a disruptive innovation. However, the impact of copyright works created by AI is difficult to consider. Whatever the creation of copyright works does to the market in future, it hasn’t been in such quantity to upset the current creative industries or to have a significant impact on how we think about copyright works themselves yet. But artificial intelligence has had a significant impact on the creative industries in relation to online content. Using AI, corporations and rights holders have been quietly attempting to solve the problems created by the disruptive internet. The issues that rights holders have with uploads of copyright works, has been partially solved through the application of AI that can search and identify works being used. The most notable of these has been YouTube’s ContentID, which allows identification of and proactive takedown of likely copyright infringements.37 YouTube’s ContentID has had a controversial life thus far. As a tool for rights holders, it has dramatically assisted in identifying uses of works and prevention of infringement. Its usage has become normalised both through the dominance of YouTube in the market and the eager adoption by rights holders. However it is also causing problems. The extraction of the human from the process of identifying infringing content has meant that there are injustices and false positives that can occur. Home videos with music in the background have been taken down because AI can’t tell that this would be an acceptable use, merely that the clip holds copyrighted works over a

The principles at work  177

certain length. This lack of granularity and ability to identify possible fair use means that AI leans towards the rights holders. Is this a function of AI and copyright or is it a function of AI designed to deal with the current rules governing copyright works online? Arguably, the latter. If the notice and takedown of the DMCA wasn’t in place, a ContentID-style AI might be less likely to be used. And this use of AI is a clear indication of enforcement norms that have developed in response to the current legislation. What we see here is a fear of the legal ramifications of allowing the use of works to the point where interfering with individual’s rights is considered acceptable. That fear, whether in damages or in the loss of the neutral platform immunity, is so high that it is worth putting in place a system that removes every use of a copyrighted work, sometimes even where authorised, regardless of whether it is a legitimate use or not. These enforcement norms are not what we have looked at before, in that they are norms mainly of the gatekeepers rather than the general population. However, since gatekeepers like YouTube inform how these works are used, their norms have significant value. That the norm is shifting away from allowing users to use works has to be worrisome.

Applying the principles So if artificial intelligence isn’t new, and legal scholarship on it isn’t new, then why in recent years has it become such a hot button topic? These new AI may not the AI envisaged, but they are starting to overcome the AI effect. It is hard to deny that a talking box in your home that provides you with answers, turns on your lights, and gives you the daily weather has some form of intelligence behind it. They are being noticed as AI. This new crop of AI are being deployed in ways that are producing both conflict and interest that impact a wide audience, the three factors discussed in Chapter 3. Of these, conflict is as always the most relevant for driving legislation around a technology. AI has produced plenty of this. AI-led algorithms are behind many of the copyright takedowns, and the lack of ability of AI to apply exceptions such as fair use has produced outcry.38 Copyright is just one way in which AI is being used to filter the internet, with other usages that expand on these capabilities such as identifying child-safe content.39 Privacy concerns about who can hear your conversations with your AI has been driving coverage of the at-home variety.40 In the legal field, there is ongoing concern about the use of algorithms in sentencing.41 And in the economic and political fields, great concern is being expressed over the possibility of AI replacing human efforts altogether.42 Crucially, legislators are taking an interest. 2016 saw the first US House and Senate hearings on artificial intelligence.43 The following year,

178  The principles at work

the European Parliament passed a non-binding Resolution on Civil Law Rules on Robotics, including concerns about AI.44 “Humankind stands on the threshold of an era when ever more sophisticated robots, bots, androids and other manifestations of artificial intelligence (“AI”) seem to be poised to unleash a new industrial revolution, which is likely to leave no stratum of society untouched, it is vitally important for the legislature to consider its legal and ethical implications and effects, without stifling innovation.”45 With the confluence of conflict, interest, and a broad appeal, artificial intelligence seems primed to receive legislation in the near future. However, we need to look beyond the interest and attempt to identify the social impact of artificial intelligence before considering the appropriate legislative path to take. The Principles can help in this. If we accept that AI is likely disruptive, and we accept that we have reached the tipping point where legislators feel pressured to do something about AI, how would that look taking into consideration the principles developed in this research? Principle 1: disruptive innovations will present as something familiar but are not the same thing Firstly, legislators need to accept that AI and its impact will be beyond their imagination. It may seem like something fully explored through sci-fi novels and the science of the past sixty years, but the market for and norms that will ultimately flow from AI are still very unidentifiable. How AI fits into modern society is already different from that imagined. However, it is already presenting as things we feel we understand. We grasp how search engines work and grasp the concept of a conversational AI that turns on/off lights and gives us the weather report, but do we really understand what is going on behind the scenes? There is already evidence that these AI have an impact that is unseen, whether affecting what we are allowed to view or data gathering. We have to be vigilant not to assume that we understand artificial intelligence. Its possibilities are huge. At what point does a conversational AI become not just a passive receiver, but chooses to take the proactive choice when it overhears actions that may endanger it or those in the house? We have yet to see “sentient” AI on the market, but with machine learning and neural networking, the possibility of AI taking actions beyond their original programming is real. Additionally, even if AI is not taking action, it can be doing more than we see. AI is in many ways opaque. We cannot see how the decisions it makes are made, and we do not know how they were trained. In order to do the

The principles at work  179

things they do, many collect significant amounts of data that can be available for their creators or others to use. What is done with that data is as relevant as what is being done by the AI itself. Regulating AI believing it merely to be what we see, and not regulating behind the scenes actions, is problematic. This has been considered by legislators. Privacy concerns are nothing new and have been raised in multiple countries including the US and EU parliaments on the potential dangers of usage of AI without oversight. However, they are still dealing with what they see and understand. Speculation, naturally, plays out poorly in the legislative process. Evidence-based legislation is often seen as important, but with disruptive innovations like AI the evidence doesn’t always exist. It may not exist due to the opaqueness of the use, where a particular impact is happening behind closed doors that we are not aware of, or it might not exist because the applications of AI are still in their developmental phase and will cause impacts we don’t know yet. Principle 1 is at heart a warning that what we see is not necessarily what we will get. Taking this to heart with AI suggests that we accept that any solution based on current known technologies may be incomplete or inadequate to deal with AI in the future. Principle 2: market saturation is not needed, but technology maturity is desirable for understanding a disruptive innovation’s impact Legislators are already attempting to grapple with the effects of AI, basing it off of market data. We know that the market is not saturated, despite the ubiquitous and plethora of search engines, and the millions of users of AI home assistants like Apple’s Siri and Amazon’s Alexa. For AI, the market clearly has new ways to grow. New applications and new users of AI are both possible and probable. How these will contribute to the norms surrounding AI is yet to be determined. According to Principle 2, this is acceptable. Market saturation isn’t necessary. Where we fall down is the question of technological maturity. Has AI found its final form or can we envision what that is? Arguably, no. We know from our discussion of Principle 1 that AI is likely to still continue to change and impact new areas of our lives, and may be doing things we don’t know of yet. The maturity of both market and technology is not there. However, again, according to Principle 2 this is acceptable. While it can be useful, we don’t have to wait for these to go ahead with legislative efforts. We can legislate as and when it is needed to curb bad AI behaviours or norms. Principle 2 is not a call to prevent legislation without this information, merely a reminder that we should consider the market and maturity of a technology. When we don’t have market saturation or

180  The principles at work

technological maturity, we should expect changes. Any legal solution created at this time should expect the need to be altered if the disruptive properties create difficulties in future. Legal solutions found during this should be based on this understanding. This also means that the type of legislation that can be successful might be better. For example, legislation that assists in regulating the market may be more successful in this timeframe than if it was going to be applied at a later date. Regulating gatekeepers at this early juncture of the market/ technological maturity can assist in creating industry standards that can ensure the norms generated from its use are beneficial. The opportunity to provide regulatory guidance at this early stage can have a significant impact in guiding how a technology matures. Not having a mature market or technology invites us to consider whether now is the time to regulate AI as an industry or at a high level. This is what happened with radio in America. Creating a regulatory framework that has the potential to direct the growth of AI usage in beneficial ways can make controlling unwanted applications and usages from growing. Now is the ideal moment to identify and regulate gatekeepers for AI, which we’ll talk more about below. Ultimately, Principle 2 reminds us that legislation now, as AI is growing, can be beneficial, but should be prepared to change. Without the clarity of future vision, legislation enacted now needs to weigh the possible impact on innovation but also needs to accept that as the technology changes and matures, it may out-grow legal solutions that are found for today’s problems, which leads us to Principle 3. Principle 3: early legislative reform enacted prior or during disruption can face challenges from unforeseen consequences of adoption This principle is a direct result of the lack of knowledge that we have regarding market and maturity of the technology seen in Principle 2. Legislators are keen to ensure that laws do “not affect the process of research, innovation and development.”46 This dovetails with the hopes held by AI designers and is an understandable fear. Law could have significant implications for the future of AI development as well as implementation so this concern is valid. What Principle 3 reminds us that the social norms of an early disruptive innovation are difficult to predict and can have serious affects later on. Knowing this, legislators who choose to tackle AI at this time need to consider that their solution may not continue to be appropriate as time passes. Legislation with sundown clauses or that which act as a regulatory guidance may be more beneficial than direct law focused on aspects of AI in its current form.

The principles at work  181

Principle 4: late legislation can still provide adequate protection for rights holders The wait and see approach is very attractive, but with such high profile innovations, it can be easy for legislators to feel pressured to “do something.” From our earlier discussion, it is easy to think that AI is primarily being helpful to rights holders, with the significant workload it lifts from rights holders in identifying potential infringements online. However, this is only one application of AI, and there have been some that challenged rights holders. We have examples of Principle 4 already working to protect rights holders through the courts. One such is the “reading” of works done by AI. AI systems are consuming copyright works for a variety of reasons. In some cases, that may be the creation of new works but it is also happening for digitisation and identification purposes. The Google Books cases47 clearly demonstrated that without legislation, it was still possible for rights holders to seek to address issues. True, rights holders did not ultimately win those cases, but the current legal understanding of fair use allowed this usage and had that not been the case, redress would have been available. The gap between law and technology has been filled by judicial decisions. Rights holders have a history of being fearful of new technologies. As it can be difficult to envision where a disruptive innovation will progress, so too it can be difficult to envision how to obtain IP rents. That does not mean that their rights are overly impinged, and new business models should always be explored, and possibly even encouraged. Legislators need to be wary of providing too much protection for rights holders in ways that overly stifle innovation or prevent legitimate uses. Principle 4 reminds us that the courts are there to pick up where legislation has left off. We have already seen this with AI, and it will be there again. This may not work in all jurisdictions, but for the common law ones, it does. And if the outcome of those decisions are not what we would like, then legislators can reform existing law to what matches later data. Additionally, if legislators cannot envision all-encompassing legislation or regulations, then the courts will identify that and find solutions within existing law. Principle 5: consider gatekeepers Of all the principles developed, this is a concrete option that legislators can focus efforts towards. Gatekeepers have proven to be the most successful group of individuals to regulate when it comes to disruptive innovations. Wisdom from previous disruptive innovations tells us that it is to these individuals that regulatory efforts should be made. Where it was created, like in photocopying and radio, we see both an increase in compliance, and an easier time for rights holders to seek redress. Gatekeepers allow certainty

182  The principles at work

for rights holders and the creation of gatekeepers for AI would solve a number of difficulties. Some might argue that with autonomous AI that makes its own decisions, who is the gatekeeper? Legal theorists have spent quite some time trying to decide whether this is necessary in the creation of creative works. But even if you allow an AI to be an author, you can still create a gatekeeper who will be responsible for an artificial intelligence’s actions. Artificial intelligence coupled with technology like robotics “complicates traditional notions of accountability.”48 In the instance of an AI that is able to generate its own protocols, create its own rules, and demonstrate making choices, who is the legal entity who could be held responsible? Perhaps it is the programmer who first creates the AI. Perhaps it is the company that runs the server the AI is on. However, there is always the possibility that a gatekeeper can be found for an AI or designated through law. Because of the way AI works currently, gatekeepers are already the providers of access to and the services of AI. Companies deploy AI-led algorithms and conversational AI enabled devices. Other companies provide access to AI-led databases like facial recognition. The creation of AI in the backyard is currently not significant to the market at this moment, and if we act now to designate creators and providers as legally liable, it would ensure that there was someone to turn to if a problem occurred as well as incentivising monitoring to ensure that problems did not occur. EU legislators have recognised this, stating “whereas a series of rules, governing in particular liability, transparency and accountability, are useful… are necessary.”49 That accountability and liability are included is a clear indication that they anticipate someone will be identifiable for those purposes, even if it is merely a legal designation. For potentially autonomous artificial intelligence, that means a designated entity who would be held liable for the AI’s actions. However, in the name of innovation, there are once again calls for immunity, such as those provided in Section 230 of the Communications Decency Act for internet providers. This is likely to lead to the same kinds of issues we saw with the Internet. However, the provision of AI is not in any way a neutral platform. AI must be given parameters, must be “fed” data to learn from, and we have already seen this lead to AIs becoming racist, misogynistic, and xenophobic.50 Privacy concerns exist, and the question of how to challenge an opaque decision-making process like an algorithm is problematic. Underlying commands and the input data can create issues, not to mention the issues brought up by the opacity of AI-made decisions. The ability to eliminate this possibility and program AI to follow the laws or ethical codes is not as simple as it might sound. As Professor Jones pointed out to Congress,51 laws grant wide latitudes for individuals that can be difficult to interpret even for humans. Putting this into a code that can be understood by AI is not a simple matter, meaning that ethical questions

The principles at work  183

and the potential for bad behaviour will always exist. This makes the need to provide liability guidance important. This is why gatekeepers are likely to be very effective for AI. Not only does it provide certainty of who is liable for their behaviour, but it also incentivises the creation and monitoring of AI to ensure that these problems do not occur. This is not a huge burden to innovation, as many innovations attach liability to their creators, and it doesn’t prevent new applications of AI, one of the likely outcomes of its disruptive nature. Simply through the creation of gatekeepers, you can avoid some of the unforeseen consequences (Principle 3) of specific AI-centric legislation. Principle 5 is the most concrete solution that legislators can look to with AI. It provides a clear program and in this case seems very appropriate. It is likely that creating a gatekeeping role and regulating it will provide flexibility to developers while providing legal certainty for rights holders. Recommended steps Interestingly, AI is different from the disruptive innovations studied earlier in that it is the first that doesn’t supply a new way for copying to occur. However, the principles still apply and can be useful to the legislator. Since we don’t know the norms or where the AI market is going to go fully, caution in legislation is likely the appropriate response still. However, caution does not mean inaction. Even though AI is likely still in its early disruptive phase and it is difficult to pinpoint social norms that it has or is likely to create, legislating AI now is not necessarily going to lead to the issues seen with computer programs. This does not have to be a story of legislation that fails to capture the norms that require significant re-work or has a long history of continued conflict. However, the lack of evident norms provides an opportunity. If there are unwanted norms or norms that would be preferable, legislation now can affect that outcome. By using guiding legislation, we can encourage industry players to steer away from outcomes that aren’t wanted. This is already been seen in some jurisdictions, such as the European Parliament recommendations on Civil Law Rules on Robotics.52 Here, principles were created that should inform legislation, but also can act as guidance for those working in the field to create better outcomes such as ensuring transparency, protection of rights, and human safety.53 By putting these in place early in the norm development it prevents the creation of difficult-to-remove norms that are undesirable. Currently, most users don’t have access to AI. We have access to its service. AI’s profile is closer to that of radio, which had successful legislation happen early its in development. Most radio users never provided radio broadcasts, merely enjoyed their provision in their homes. By controlling the provision of broadcasts through industry regulation, radio had a very successful legislative history that ensured compliance with copyright.

184  The principles at work

This is the same type of behaviour with the new in-home AIs. The actual AI is still controlled outside of our homes, with users having no control over how the AI functions. They can obtain the answers they seek from an AI, whether it is built into a program or is a standalone companion, but if the “broadcast” were to change, they would not be able to prevent that. Instead, those who own or create each AI are the ones with the power. Contrast this with personal computers, where it is difficult to know or regulate what users do in their own home. There is almost no way that the provider of a personal computer can know, anticipate, or prevent an individual’s choice in how they use a PC in their own home. This makes the creation of an AI industry regulatory scheme an attractive option. At the very least, those who control AI can be designated as gatekeepers, and regulations/liability should be applied. We can see this solution being created in a number of jurisdictions, including the European Union and United States. By regulating AI as an industry, we can guide how AI develops while ensuring that there are gatekeepers who can be made to prevent undesirable norms from developing and be held accountable when problems arise.

Conclusion Despite countless sci-fi visions anticipating AI within our culture, our current understanding of AI is only part of the equation. The disruptive properties of AI mean that it has the possibility to dramatically change how we operate as well as the market it currently resides in. As part of that, our understanding of how AI and copyright will interact when it becomes a more fully-fledged technology is still guess work to a degree. While all laws are created in the hope that they are forward-looking and can be applied to future unknowns, one of the inherent characteristics of disruptive technologies is the difficulty in predicting what will be next. AI is proving that reality. As such, copyright laws often seem outdated or not fit for purpose in the newly disrupted world. However, of bigger note is that this is yet another disruptive innovation that challenges our understanding of some of the fundamental aspects of copyright. While radio, photocopying, and personal computers challenged the ability to make a copy and control the making of copies, AI looks set to challenge our notion of authorship. For AI, copyright law hasn’t been dramatically affected, yet. However, the questions that focus on whether AI can be an author, who owns the IP in AI, and whether an AI “uses” a work, shows that its disruptive properties have the potential to continue the trend of disruptive innovations disrupting our current conception of copyright. With the Principles in mind, legislators can attempt to create space for AI within our current understanding of copyright.

The principles at work  185

Notes









1. Clayton M. Christensen, The Innovator’s Dilemma: The Revolutionary National Bestseller That Changed The Way We Do Business (First Collins Business Essentials. HarperBusiness 1997) xviii. 2. Timothy Stenovec, ‘Myspace’s Biggest Moments: Memories Of A Fallen Social Network’ (The Huffington Post, 29 August 2011) ; ‘Bebo Beats Facebook and MySpace to Be Named “Best Social Networking Website”’ (Mail Online, 4 January 2008) ; Kevin Kelleher, ‘How Facebook Learned from MySpace’s Mistakes - Fortune’ (Fortune, 19 November 2010) ; Adam Hartung, ‘How Facebook Beat MySpace’ (Forbes, 14 January 2011) accessed 20 June 2020. Unless otherwise stated, all online sources in this chapter accessed 20 June 2020. 3. A coordination norm encourages more users to follow the norm by providing greater benefits by doing so. The more who choose Facebook, the more of their friends they can access, thereby encouraging continued usage instead of transferring to a different social platform where fewer of their friends are. 4. Jennifer van Grove, ‘Why Teens Are Tiring of Facebook’ (CNET, 2 March 2013) . 5. Sonali Seth, ‘Is Facebook Dead? Ask a Millennial’ (CNBC, 5 February 2016) . 6. Facebook Reports First Quarter 2020 Results’ (Facebook Investor Relations, 29 April 2020) . 7. Rosaria Conte and Cristiano Castelfranchi, ‘From Conventions to Prescriptions. Towards an Integrated View of Norms’ (1999) 7 Artificial Intelligence and Law 323, 338. 8. Steve Denning, ‘Five Reasons Why Google+ Died’ (Forbes, 17 April 2015) . 9. Seth Fiegerman, ‘Inside the Sad, Expensive Failure of Google+’ (Mashable, 2 August 2015) . 10. EMI v. Eircom [2005] IEHC 233; Totalise Plc v Motley Fool Ltd. [2001] EWCA Civ 1897; Sheffield Wednesday v. Hargreaves [2007] EWHC 2375; Doe v. Cahill, 884 A.2d 451 (Del. 2005); Dendrite International, Inc. v. Doe No. 3, 342 N.J. Super. 134, 775 A.2d 756 (App. Div. 2001). 11. Copyright Directive (2001/29/EC) art. 8(3); U.S. Copyright Act § 512(j)(1)(B)(ii); Sony v UPC (No 1) [2015] IEHC 317 (27 March 2015); EMI Records Ireland Ltd v UPC Communications Ireland Ltd [2013] IEHC 274 (12 June 2013); Cartier International AG v British Telecommunications plc [2018] 1 WLR 3259, [2018] UKSC 28 (13 June 2018); Case C-314/12UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH 27 March 2014; Case C-324/09 L’Oréal SA v. eBay 12 July 2011. 12. Case C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland Limited 3 October 2019.

186  The principles at work 13. Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC OJ L 130, 17.5.2019. 14. Laura Kayali, ‘Europe’s Controversial Copyright Reform Turns 1 amid Ongoing Tensions’ (POLITICO, 15 April 2020) . 15. American Broadcasting Companies et al v Aereo (2014) 573 US. 16. Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (Second Circuit. 2008), cert. denied, 557 U.S. 946 (2009) 17. Timothy B Lee, ‘The Aereo Case, Explained’ (Vox, 7 November 2018) . 18. Steve Donohue, ‘Aereo Can’t Be Compared to Cablevision DVR, Broadcasters Tell Supreme Court’ (FierceCable, 10 November 2013) ; Monica Horten, ‘The Aereo Dilemma and Copyright in the Cloud’ (2014) 3 Internet Policy Review ; Julian Sanchez, ‘The Supreme Court’s Aereo Effect Might Evaporate Silicon Valley’s Cloud’ The Guardian (25 June 2014) ; Joan E Solsman, ‘How Supreme Court Ruling Affects Aereo, the Cloud, and You’ (CNET) . 19. The United States Copyright Office, ‘Section 512 of Title 17: A Report of the Register of Copyrights’ (2020). 20. Janne Riekkinen, ‘Piracy versus Netflix: Subscription Video on Demand Dissatisfaction as an Antecedent of Piracy’, Proceedings of the 51st Hawaii International Conference on System Sciences (2018); Johnny Nhan, Kendra Bowen and Aaron Bartula, ‘A Comparison of a Public and Private University of the Effects of Low-Cost Streaming Services and Income on Movie Piracy’ (2020) 60 Technology in Society 101213. 21. The United States Copyright Office, ‘Section 512 of Title 17: A Report of the Register of Copyrights’ (2020). 22. Irving Wladawsky-Berger, ‘“Soft” Artificial Intelligence Is Suddenly Everywhere’ (WSJ, 16 January 2015) . 23. Herbert A Simon, ‘Artificial Intelligence: An Empirical Science’ (1995) 77 Artificial Intelligence 95. 24. Pamela McCorduck, Machines Who Think: A Personal Inquiry into the History and Prospects of Artificial Intelligence (25th anniversary update, AK Peters 2004) 179. 25. DE O’Leary, ‘The Internet, Intranets, and the AI Renaissance’ (1997) 30 Computer 71, 78. 26. Armand Rousso and Steven Schwartz, ‘Apparatus, Method and System of Artificial Intelligence for Data Searching Applications’ . 27. What Is Conversational AI? - Alexa Skills Kit Official Site’ 28. Simon (n 23)117. 29. Patrick Suppes, ‘Uses Of Artificial Intelligence In Computer-Based Instruction’ [1990] Artificial Intelligence in Higher Education 206.

The principles at work  187 30. McCorduck (n 24) 400. 31. F Dignum, ‘Autonomous Agents and Social Norms’ in R Falcone and R Conte (eds) (1996); Fabio Maria Carlucci and others, ‘Explicit Representation of Social Norms for Social Robots’, 2015 IEEE/RSJ International Conference on Intelligent Robots and Systems (IROS) (IEEE 2015) ; Conte and Castelfranchi (n 7). 32. Conte and Castelfranchi (n 7) 338. 33. Carlucci and others (n 31). 34. McCorduck (n 24) 423. 35. ibid. 423. 36. Benjamin LW Sobel, ‘Artificial Intelligence’s Fair Use Crisis’ (2017) 41 COLUM. J.L. & ARTS 45; James Grimmelmann, ‘Copyright for Literate Robots’ (2016) 101 Iowa Law Review 657; Dan L Burk, ‘Algorithmic Fair Use’ (2019) 86 University of Chicago Law Review; O’Leary (n 25). 37. Tim Wu, ‘Will Artificial Intelligence Eat the Law? The Rise of Hybrid Social-Ordering Systems’ (2019) 119 Columbia Law Review 7. 38. Hosseinzadeh v. Klein and Klein. No. 16-CV-3081 (S.D.N.Y. Aug. 23, 2017); Burk (n 36); Sobel (n 36); Grimmelmann (n 36). 39. Sharifa Alghowinem, ‘For a Safer YouTube Kids: An Extra Layer of Content Filtering Using Automated Multimodal Analysis’, Proceedings of SAI Intelligent Systems Conference (Springer, Cham 2018). 40. Hyunji Chung and others, ‘Alexa, Can I Trust You?’ (2017) 50 Computer, 100; Ginger Zhe Jin, ‘Artificial Intelligence and Consumer Privacy’ (2018) NBER Working Paper No. 24253 NATIONAL BUREAU OF ECONOMIC RESEARCH 25; Lauren Bass, ‘The Concealed Cost of Convenience: Protecting Personal Data Privacy in the Age of Alexa’ 66; Giuseppe Contissa and others, ‘Claudette Meets GDPR: Automating the Evaluation of Privacy Policies Using Artificial Intelligence’ [2018] SSRN Electronic Journal ; Eoghan Furey and Juanita Blue, ‘She Knows Too Much – Voice Command Devices and Privacy’, 2018 29th Irish Signals and Systems Conference (ISSC) (IEEE 2018) Eoghan Furey and Juanita Blue, ‘Alexa, Emotions, Privacy and GDPR’ (2018); Catherine Jackson and Angela Orebaugh, ‘A Study of Security and Privacy Issues Associated with the Amazon Echo’ 10; Yuting Liao and others, ‘Understanding the Role of Privacy and Trust in Intelligent Personal Assistant Adoption’ in Natalie Greene Taylor and others (eds), Information in Contemporary Society, vol 11420 (Springer International Publishing 2019); Karl Manheim and Lyric Kaplan, ‘Artificial Intelligence: Risks to Privacy and Democracy’ 21 83. 41. Anupam Chander, ‘The Racist Algorithm?’ 115 Michigan Law Review 24; Alyssa M Carlson, ‘The Need for Transparency in the Age of Predictive Sentencing Algorithms’ 103 IOWA LAW REVIEW 27; Kirsten Martin, ‘Ethical Implications and Accountability of Algorithms’ (2019) 160 Journal of Business Ethics 835. 42. Seth G Benzell and others, ‘Robots Are Us: Some Economics of Human Replacement’ 57; Cüneyt Dirican, ‘The Impacts of Robotics, Artificial Intelligence On Business and Economics’ (2015) 195 Procedia - Social and Behavioral Sciences 564; European Parliament, ‘European Parliament ­Resolution of 16 February 2017 with Recommendations to the Commission on Civil Law Rules on Robotics (2015/2103(INL))’ (European Parliament 2017) P8_TA(2017)0051; Fred Upton and others, The Disrupter Series: Advanced Robotics, Serial No. 114–169, September 14, 2016, 114–2 2016 [114–169], 62; Anton Korinek, Johns Hopkins and Joseph E Stiglitz, ‘Artificial Intelligence, Worker-Replacing Technological Progress and Income Distribution’ 14.

188  The principles at work 43. Hearing Before The Subcommittee On Commerce, Manufacturing, And Trade Of The Committee On Energy And Commerce House Of Representatives, The Disrupter Series: Advanced Robotics, Serial No. 114–169, September 14, 2016, 114–2 2016 [114–169] 62; ‘Commerce Announces First Artificial Intelligence Hearing’ (U.S. Senate Committee on Commerce, Science, & Transportation, 22 November 2016) [Hereafter The Disrupter Series]. 44. European Parliament, European Parliament resolution of 16 February 2017 with recommendations to the Commission on Civil Law Rules on Robotics (2015/2103(INL)) [Hereafter EP resolution on Civil Law Rules on Robotics]. 45. ibid., General Principles B. 46. ibid., General Principles U. 47. Authors Guild, Inc. v. Google, Inc. (Authors Guild 1), 954 F. Supp. 2D 282 (S.D.N.Y. 2013). 48. The Disrupter Series (n 43). 49. EP resolution on Civil Law Rules on Robotics (n 44) General Principles U. 50. Chander (n 41) 24; Martin (n 41) 839; The Disrupter Series (n 43) 25. 51. The Disrupter Series (n 43) 25. 52. EP resolution on Civil Law Rules on Robotics (n 44). 53. ibid., Ethical Principles 10, 12, & 13.

Chapter 9

Final thoughts

Every new innovation, disruptive or otherwise, can prompt the cry that copyright is insufficient to properly protect an existing creative industry: photography would kill painting; the player piano would kill sheet music; the gramophone and radio would kill live performance; photocopying would kill the printing industry; the personal computer would kill the computer software industry; file-sharing would kill the movie/music business. As Mark Lemley once wrote, “if you claim that the sky is falling whenever a new technology threatens an existing business model, the rest of the world can be forgiven for not believing you when you claim that this time around it’s going to be different.”1 The creative content business has been remarkably adaptable over the years. Copyright has weathered all of the “industry-killers” that have come along thus far. Despite this, legislators have repeatedly heard the cries of rights holders and found just cause in extending or adding to existing protections, even where the evidence of greater infringement is inconclusive at best. Unlike business rivals who may be driven out of the market by disruptive innovations, the creative industry has continued apace. To be clear, disruptive innovations have caused significant difficulties for rights holders in the past and continue to do so. While not necessarily the original intention of these innovations, disruptive innovations have consistently found new ways to spread works to new audiences. If one of the hallmarks of disruptive innovations is a broader audience, this spread is likely to happen again with the next disruptive innovation. This broader audience brings questions for copyright. Disruptive innovations as a class have unique properties that provide greater challenges to legislators. From changing performance parameters to broader audiences, these properties make the disruptive innovation’s market more difficult to understand, the exact market impact of the innovation more difficult to research, and has challenged some of the basic economic balances behind copyright law. In attempting to understand how this happened, this research threaded through historical examples of disruption and copyright law reform.

190  Final thoughts

Considering the connections between technology, society, and law it becomes clear that disruptive innovations, like all technologies, had the possibility to affect change within a society. These links became the threads of the larger story of disruptive innovations and law. Social norms can assist in understanding these connections. Establishing the relevance of social norms to the questions posed, and then building a profile that would both assist in identifying social changes and the likelihood of regulation occurring. It did this by asking three pertinent questions. Was there interest in the innovation, conflict created by it, and did the users belong to a demographic group that might attract regulation? These questions guided our understanding of the profile which was then applied to our case studies. Broadcast radio, saw copyright challenged in new ways. Radio not only allowed more people to hear music, but the early kits also allowed many to become broadcasters themselves. Radio gave households the ability to access aural copyright works2 and once broadcast, access was free or affordably licensed for all who owned or had access to a radio. This greater access to information, in general, led to an appetite that grew to the behemoth that the radio industry became. By the time radio became a mature technology, radio was not the domain solely of the rich, the urban, or those of a specific political leaning. It was a tool of the masses that happened to sometimes give access to copyright works. Copyright was challenged by radio as control of the dissemination of copyright works was uncertain at first. It focused on controlling the point of broadcast as it was impractical to monitor and charge for every ear that listened to a particular radio. This led to a highly regulated broadcasting industry, effectively providing gatekeepers or control points. Copyright law, in effect, stopped at an individual’s doorstep, bar where the receiver was a business. This wasn’t always certain, as the question of whether receiving constituted a performance was one the courts considered several times. Reception not being performance was an acceptance that copyright wasn’t expected to enter the home, something lost in the understanding of copyright in later years. Xerography likewise provided challenges. Xerography allowed individuals to become publishers themselves. It was “comparatively cheap but difficult to control.”3 That control over who was able to make good quality copies was taken from publishers and spread throughout the populace. It also brought the question of whether readers were free to make copies to the fore. The impracticalities of attempting to charge anyone who makes a copy of a book or other literary work in their hand is one that continues today. While the economic balance of small copies had been dealt with previously in pricing books and journals, once large-scale copying was easy and feasible the balance struck between the cost of copyright works and copies changed dramatically.

Final thoughts  191

Personal computers in both the office and home allowed the creation and copying of works in new ways that circumvented traditional dissemination avenues. While early personal computers did not have the plethora of media available today, they still made copying quick and easy for those with the know-how. This was not just a problem for computer programs, but any copyrighted work that was translated into a computer-readable format. Like radio, it was impractical to attempt to control individuals in offices and homes using personal computers. The internet took those issues and made it even more difficult. Modern disruptive innovations are also challenging copyright in new ways. The internet has continued to provide new ways of spreading copyright works but also challenges us with the new remix culture. Digital formats allow for derivative works in easy ways while artificial intelligence has created enforcement norms that see these derivative work creators often stripped of their monetisation for having used the original in their creation. The fact that all of these disruptive innovations made controlling the dissemination of copyright works is important. This is a feature of disruptive innovations that impact copyright works. We cannot assume that others will not continue in this trend. Legislators struggled to find a path that married the norms surrounding programming and the desire for copyright protection by industry concerns. With no natural gatekeepers to self-regulate the industry or users, the disruptive innovation and the norms surrounding it continued to clash with copyright until someone found a way to legalise the norms, as opposed to the actions. By creating a licensing system that incorporated the social norms, the actions of the norm adherents could become legal. We are left with three key concepts and five principles. The key concepts are fundamental to understanding how disruptive innovations and the law interact. 1 Disruptive innovations uncover new or unknown social needs. 2 Disruptive technologies can highlight laws that require reform. 3 Disruptive innovations requires careful, cautious management by law reformers. These key concepts remind us of the danger inherent in dismissing disruptive innovations, but they also provide guidance. We know these innovations will create new norms and highlight laws that require reform. This makes disruptive innovations very useful to legislators. In identifying a disruptive innovation, legislators can use these innovations through careful regulation to guide social norms to the outcomes that are favourable. To do this, legislators need to be conscious of these five principles.

192  Final thoughts

1 Disruptive innovations will present as something familiar but are not the same thing. 2 Market saturation is not needed, but technology maturity is desirable for understanding a disruptive innovation’s impact. 3 Early legislative reform enacted prior to or during disruption can face challenges from unforeseen consequences of adoption. 4 Late legislation can still provide adequate protection for rights holders. 5 Consider gatekeepers.

These five principles are meant to help regulators navigate through the process of regulating disruptive innovations. They first warn not to mistake a disruptive innovation as something else, and second, that understanding a disruptive innovation’s impact is difficult while it is still growing. Third, we warn of the dangers in legislating during the disruptive period or earlier. This is key in finding legislative solutions that do not result in norm backlashes or difficulties in enforcement. Late legislation can still provide sufficient protections for rights holders. Within the common-law system, the judiciary is placed ideally to see that rights holders obtain a remedy where necessary, even in the absence of legislative action. Lastly, we recommend that if new regulations are coming, that thought is given on the question of gatekeepers. Whether it is creating or designating a gatekeeper, the gatekeeping function has proven vital in the past for curbing infringement excesses and providing a point of responsibility who can then held liable. This research by no means fully explores disruptive innovations and the law. In choosing copyright, the disruptive innovations studied were necessarily ones that had the potential to affect a protected demographic group, rights holders. Some of the principles established may be less relevant for disruptive innovations that do not have such a close link to existing protectable groups. There is scope to take this research beyond copyright-adjacent disruptive innovations and see where it might lead. There is scope to look deeper at the question of control and copyright with the impact of disruptive innovation. This research suggests that disruptive innovations may both highlight the need for reform and represent such a large-scale sea of change in the market that it may be beneficial to consider the basic suitability of existing legislation. Where copyright and disruptive innovations are at odds, there are legislative solutions that can solve the conflict. However, those solutions are only going to be successful if they understand and address any social norms that have grown up surrounding the disruptive innovation. The biggest issue, however, is one of disruptive innovations making the control of works more difficult, especially in the home. All three of the case

Final thoughts  193

studies made it far easier for individuals to access copyright works on their own terms, in their own homes. The internet compounded this trend. This appears to be a hallmark of disruptive innovations that intersect with copyright. While it may aggravate rights holders, there are benefits to the spread of cultural works. Access to works can lead to a common cultural experience. One of radio’s lasting impacts was the creation of a mass culture,4 and xerography continued this trend. Personal computers have brought this possibility to its fullest, creating a mass culture globally via the internet. Each of these innovations made it easier for individuals to access copyright works, which enriches the existing culture. How this cultural benefit should be balanced is a question that continues to plague modern society.5 One thing for certain is that the genie is out. Control is increasingly difficult to accomplish with the internet, social media, and modern computing. It may be time to consider whether disruptive innovations have undermined this pillar of copyright sufficiently that copyright should be re-envisioned for the modern age. Copyright law, it seems, has been disrupted.

Notes



1. Mark A Lemley, ‘Is the Sky Falling on the Content Industries’ (2011) 9 J. on Telecomm. & High Tech. L. 125, 132. 2. W Jefferson Davis, ‘Copyright and Radio’ (1929) 16 Virginia Law Review 40, 41–42. 3. Julius J Marke, ‘Copyright and Intellectual Property’ (1967) 32 Alb. L. Rev. 1, 55. 4. Bruce Lenthall, Radio’s America: The Great Depression and the Rise of Modern Mass Culture (The University of Chicago Press 2007); Mary Seelhorst, ‘Possible Dreams: Americans Listen in on the World with the Invention of the Radio’ (1992) 169 Popular Mechanics 34. 5. Roger Cotterrell, ‘Culture, Comparison, Community’ (2006) 2 International Journal of Law in Context 1.

Bibliography

Cases & Legislation American Broadcasting Companies et al v Aereo (2014) 573 US AN ACT To amend section 8 of the Copyright Act of March 4, 1909, as amended, so as to preserve the rights of authors during the present emergency, and for other purposes of September 25, 1941, (55 Stat. 732, Public Law 258) Anti-Counterfeiting Trade Agreement (ACTA) (May 2011) Apple Computer, Inc. v. Franklin Computer Corp., 545 F.Supp. 812 (E.D.Pa.1982) Apple Computer, Inc. v. Franklin Computer Corp., 714 F. 2d 1240 – Court of Appeals, 3rd Circuit 1983 Attorney General v The Edison Telephone Company of London ltd LR 6 QB D244 [1880] QB D244, VI LR Attorney General v. The Edison Telephone Company of London ltd. (1883) LR 6 QB D244 Authors Guild, Inc. v. Google, Inc. (Authors Guild 1), 954 F. Supp. 2D 282 (S.D.N.Y. 2013) Berne Convention for the Protection of Literary and Artistic Works (adopted 26 June 1948, entered into force 1 August 1951) 331 UNTS 217 Brown v Board of Education 347 U.S. 483 (1954) Buck v. Debaum, 40 F.2d 734 (SD Cal 1929) Buck v. Jewell-Lasalle Realty Co. U.S. Sup. Ct. 193I, Adv. Ops. Nos. I38 and I39 Cartier International AG v British Telecommunications plc [2018] 1 WLR 3259, [2018] UKSC 28 (13 June 2018) Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 (Second Circuit.2008), cert. denied, 557 U.S. 946 (2009) Case C-18/18 Eva Glawischnig-Piesczek v Facebook Ireland Limited 3 October 2019 Case C-314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft mbH 27 March 2014 Case C-324/09 L’Oréal SA v. eBay 12 July 2011 Cases 42 and 49/59 SNUPAT v High Authority [1961] ECR 109 CBS Songs Ltd v Amstrad Consumer Electronics Plc [1988] UKHL 15 (12 May 1988) Citizens United, Appellant v. Federal Election Commission 130 S.Ct. 876 (2010) Civil Rights Act 1964 Pub.L. 88–352, 78 Stat. 241 Communications Act of 1934 Ch. 652 § 602(a), 48 Stat. 1064 Copyright Act of 1909, 35 Stat. 1075, Public Law 34

Bibliography 195 Copyright Act of 1911 (Geo.6 5 c.46) Copyright Act of 1976, Pub. L. No. 94–553 § 108 Copyright, Designs and Patents Act 1988 (c 48) Data Cash Systems, Inc. v. JS&A GROUP, INC 480 F. Supp. 1063 (N.D.Il. 1979), 1068 Dendrite International, Inc. v. Doe No. 3, 342 N.J. Super. 134, 775 A.2d 756 (App. Div. 2001) EMI v. Eircom [2005] IEHC 233 Digital Millenium Copyright Act 17 U.S.C. § 512 1998 Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC EMI Records Ireland Ltd v UPC Communications Ireland Ltd [2013] IEHC 274 (12 June 2013) European Parliament, ‘European Parliament Resolution of 16 February 2017 with Recommendations to the Commission on Civil Law Rules on Robotics (2015/2103(INL))’ (European Parliament 2017) P8_TA(2017) 0051 F. W. Woolworth Co. V. Contemporary Arts, 344 U.S. 228 (1952) Gates v. Swift [1982] 13 R.P.C. 339 (Chancery Division) Hosseinzadeh v. Klein and Klein. No. 16-CV-3081 (S.D.N.Y. Aug. 23, 2017) Interstate Commerce Commission under the 1912 Act Ch. 287, 37 Stat. 302 (1912) Mann-Elkins Act, 61st Congress, 2nd session, ch. 309, 36 Stat. 539 (1910) M. Witmark & Sons v L. Bamberger & Co 291 Fed. 776 (D. C. N. J. 1923) Messager v. British Broadcasting Company, [1927] 2 K. B. 544 Midway Manufacturing Co. v. Drikschneider, 543 F.Supp. 466 (D.Neb. 1981) Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373 (1960) Norbay Music, Inc. v. King Records, Inc., 290 F.2d 617 (2d Cir. 1961) Platt & Munk, Inc. v. Republic Graphics, Inc., Civil No. 27867, (2d Cir., 1963) R (on the application of British Academy of Songwriters, Composers and Authors) v Secretary of State for Business, Innovation and Skills [2015] EWHC 1723 (Admin) (19 June 2015) Remick & Co. v. American Automobile Accessories Co 298 Fed 628 (SD Ohio 1924) Remick & Co. v. American Automobile Accessories Co., 5 F. (2d) 411 (6th Circ. 1925) denied certiorari 269 U. S. 556 (1925) Sega Enterprises Ltd. v. Richards (1982) F.S.R. 73 Sheffield Wednesday v. Hargreaves [2007] EWHC 2375; Doe v. Cahill, 884 A.2d 451 (Del. 2005) Sony Corp of Am v Universal City Studios, Inc [1984] (464 US 417, 456–57) Stern Electronics, Inc. v. Kaufman, 669 F. 2d 852 (2d Cir. 1982) Stop Online Piracy Act H.R. 3261, 112th Cong. (2011) Telegraph Act 1863 (26 & 27 Vict. C. 112) Telegraph Act 1868 (31 & 32 Vict. C. 110) Telegraph Act 1869 (32 & 33 Vict, C. 73) The Copyright Act 1956 (4 & 5 Eliz. 2 c. 74) The London Overhead Wires Act 1891 (54 & 55 Vict. c. lxxvii) The Lucas Bill, 1944 S. 2039, 78th Cong., 2d Sess. (1944) The Telegraph Acts 1868 to 1870 (33 & 34 Vict) c. 88 The Telephone Cases, 126 U.S. 1, 8 S. Ct. 778, 31 L. Ed. 863 (1888)

196 Bibliography The Townsend Amendment of 1912 (37 Stat. 488, Public Law 303) The Wireless Ship Act of 1910 Ch. 379, 36 Stat. 629 Thomas Bill §12 S. 3043, 76th Cong., 3d Sess. (1940) Totalise Plc v Motley Fool Ltd. [2001] EWCA Civ 1897 Universal Copyright Convention of 6 September 1952, with Appendix Declaration relating to Article XVII and Resolution concerning Article XI: Universal Copyright Convention 1952 United States v. Microsoft Corp., 1995–2 Trade Cases para. 71,096 (D.D.C. 1995) United States v. Windsor, 570 U.S. ___ (2013) U.S.C. Title 35 - Patents Pub. L. No. 96-517, 94 Stat. 3015, 3028 (1980) Van Dyk Research Corp. v. Xerox Corp., 478 F. Supp. 1268 (D.N.J. 1979) 40–41 Waring v. WDAS Broadcasting Station, Inc., Pa. Sup. Ct., E. Dist., Oct. 8, 1937 Whelan Associates Inc, v. Jaslow Dental Laboratory 797 F.2d 1222 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987) Williams Electronics, Inc. v. Artic Intern., Inc., 685 F. 2d 870 (3d Cir. 1982) Williams & Wilkins Company v. United States 420 U.S. 376 (1975) Williams & Wilkins Co. v. United States, 487 F.2d 1345, (Ct. CI. 1973) 1351 Wireless Telegraphy Act 1904 (4 Edw. 7 c. 24) Wireless telegraphy and signalling. A bill [as amended by Standing Committee C] to amend the Wireless Telegraphy Act, 1904, and to make further provision with respect to the regulation of wireless telegraphy and visual and sound signalling (1922) 210 Xerox Corp., 86 F.T.C. 364 (1975)

Other sources a Correspondent, ‘Microtexts as a Means of First Publication’ The Guardian (1959– 2003) (15 June 1960) 23 Adner R and Levinthal DA, ‘The Emergence of Emerging Technologies’ (2002) 45 California Management Review 50 Aghion P and Howitt P, ‘A Model of Growth Through Creative Destruction’ (1992) 60 Econometrica 323 Alghowinem S, ‘For a Safer YouTube Kids: An Extra Layer of Content Filtering Using Automated Multimodal Analysis,’ Proceedings of SAI Intelligent Systems Conference (Springer, Cham 2018) Allan S and others, ‘New Technology And The Law Of Copyright-Reprography And Computers’ (1968) 15 UCLA Law Review 939 ‘Amateur Radio Showing Steady Growth in the US’ (The National Association for Amateur Radio, 8 January 2014) accessed 20 June 2020 Anderson MG and Brown PF, ‘The Economics Behind Copyright Fair Use: A Principled and Predictable Body of Law’ (1993) 24 Loyola University Chicago Law Journal 37 Anderson T and McGreal R, ‘Disruptive Pedagogies and Technologies in Universities.’ (2012) 15 Educational Technology & Society 380 Towns AE, ‘Norms and Social Hierarchies: Understanding International Policy Diffusion “From Below”’ (2012) 66 International Organization 179

Bibliography 197 Anthony SD, The Silver Lining: An Innovation Playbook for Uncertain Times (Harvard Business Press 2009) Bainbridge DI, ‘The Copyright (Computer Software) Amendment Act (1985)’ (1986) 49 The Modern Law Review 214 Banks M, ‘The British Patent System: Report of the Committee to Examine the Patent System and Patent Law, Banks Committee Report’ (1970) Cmnd 4407 Barefoot JAS, ‘Disrupting FinTech Law’ (2015) 18 Fintech Law Report Barker E, ‘This Age of Broadcasting’ [1935] Fortnightly Review 417 Barker J, ‘Grossly Excessive Penalties in the Battle against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement’ (2004) 83 Tex L. Rev 525 Barlow JP, ‘The Economy of Ideas’ (WIRED, 3 January 2020) http://www.wired.com/ 1994/03/economy-ideas/ accessed 20 June 2020 ——, ‘A Declaration of the Independence of Cyberspace’ (Electronic Frontier Foundation, 1996) accessed 20 June 2020 Barnard S, On the Radio: Music Radio in Britain (Open University Press 1989) Bass L, ‘The Concealed Cost of Convenience: Protecting Personal Data Privacy in the Age of Alexa’ 30 Fordham Intellectual Property, Media and Entertainment Law Journal 261 Bauer M (ed), Resistance to New Technology: Nuclear Power, Information Technology and Biotechnology (Cambridge University Press 1995) Beauchamp C, ‘Who Invented the Telephone?: Lawyers, Patents, and the Judgments of History’ (2010) 51 Technology and Culture 854 Beauchamp K, History of Telegraphy (IET 2001) ‘Bebo Beats Facebook and MySpace to Be Named “Best Social Networking Website”’ (Mail Online, 4 January 2008) accessed 20 June 2020 Bell AG, Improvements In Telegraphy. US174465A (1876) Bell G, ‘STARS: Rise and Fall of Minicomputers [Scanning Our Past]’ (2014) 102 Proceedings of the IEEE 629 Benjamin L, ‘Working It out Together: Radio Policy from Hoover to the Radio Act of 1927’ (1998) 42 Journal of Broadcasting & Electronic Media 221 Benjamin LM, Freedom of the Air and the Public Interest (SIU Press 2001) Bently L, ‘Copyright and the Victorian Internet: Telegraphic Property Laws in Colonial Australia’ (2004) 38 Loy. LAL Rev 71 Benzell SG and others, ‘Robots Are Us: Some Economics of Human Replacement’ 57 (National Bureau of Economic Research 2015) Working Paper 20941 Berg S, ‘Remedying the Statutory Damages Remedy for Secondary Copyright Infringement Liability: Balancing Copyright and Innovation in the Digital Age’ (2008) 56 J. Copyright Soc’y USA 265 Bernstein G, ‘Regulating Reproductive Technologies: Timing, Uncertainty and Donor Anonymity’ (2010) 90 Boston University Law Review 1189 Bicchieri C, The Grammar of Society: The Nature and Dynamics of Social Norms (Cambridge University Press 2005) Bohnet I, Frey BS and Huck S, ‘More Order with Less Law: On Contract Enforcement, Trust, and Crowding’ (2001) 95 The American Political Science Review 131

198 Bibliography Bower JL and Christensen CM, ‘Disruptive Technologies: Catching the Wave’ [1995] Harvard Business Review 43 Bowrey K, ‘“The World Daguerreotyped: What a Spectacle!” Copyright Law, Photography and the Economic Mission of Empire’, Copyright and the Challenge of the New (Kluwer Law International 2012) Boyle R, ‘Battle for Control? Copyright, Football and European Media Rights’ [2015] Media, Culture & Society 0163443714567020 Bradshaw S, Bowyer A and Haufe P, ‘The Intellectual Property Implications of LowCost 3D Printing’ (2010) 7 ScriptEd 5 Bramford H, ‘Music, Wireless and the Gramophone No. 13.– Some General Notes’ (1929) 9 The Musical Mirror 224 Brandom R, ‘Project Goliath: Inside Hollywood’s Secret War against Google’ (The Verge, 12 December 2014) accessed 20 June 2020 Bretthauer D, ‘Open Source Software: A History’ (2002) 21 Information Technology and Libraries 3 Breyer S, ‘The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs’ [1970] Harvard Law Review 281 Bride E, ‘The IBM Personal Computer: A Software-Driven Market’ (2011) 44 Computer 34 Briggs A, The History of Broadcasting in the United Kingdom: Volume I: The Birth of Broadcasting (OUP Oxford 1995) ——, The History of Broadcasting in the United Kingdom: Volume II: The Golden Age of Wireless (OUP Oxford 1995) Bright C, ‘The Present Position of Wireless Telegraphy’ (1903) 53 The Nineteeth century and after: a monthly review 299 ——, ‘The Useful Sphere For Radiotelegraphy’ (1908) 169 Westminster review, Jan.1852–Jan.1914 400 ‘Broadcasting’ (1922) 134 Saturday review of politics, literature, science and art 595 Brodman E, ‘Piracy by Photocopy’ (1966) 54 Bull Med Libr Assoc 422 Brooks F and Kugler HJ, ‘No Silver Bullet: Essence and Accidents of Software Engineering’ (1987) 4 Computer 10 Brooks J, ‘Xerox Xerox Xerox Xerox’ (1967) 43 The New Yorker 87 Brown H, ‘Radio Under Fire’ [1934] Fortnightly 663 Brownsword R and Goodwin M, Law and the Technologies of the Twenty-First Century: Text and Materials (Cambridge University Press 2012) Brownsword R and Yeung K, Regulating Technologies: Legal Futures, Regulatory Frames and Technological Fixes (Hart Publishing Ltd 2008) ——, ‘Regulating Technologies: Tools, Targets and Thematics’ in Roger Brownsword and Karen Yeung (eds), Regulating Technologies: Legal Futures, Regulatory Frames and Technological Fixes (Hart Publishing Ltd 2008) Brummer C, ‘Disruptive Technology and Securities Regulation’ (2015) 84 Fordham L. Rev. 977 Bryceson R, ‘The History of Sound Reproduction’ (1930) 10 The Musical Mirror 218 Burgelman R, Christensen CM and Wheelwright S, Strategic Management of Technology and Innovation (5th edn, McGraw-Hill 2009) Burk DL, ‘Algorithmic Fair Use’ (2019) 86 University of Chicago Law Review

Bibliography 199 Burrell I, ‘North Sea to Streaming: How Pirate Radio Went Legit’ The Independent (London (UK), 24 August 2015) 12 Burrows J, ‘Academics and Law Reform’ (2013) 25 New Zealand Universities Law Review 667 Bush GP, Reprography and Copyright Law (American Institute of Biological Sciences 1964) Butsch R, ‘Crystal Sets and Scarf-Pin Radios: Gender, Technology and the Construction of American Radio Listening in the 1920s’ (1998) 20 Media, Culture & Society 557 Cahn NR, Test Tube Families: Why the Fertility Market Needs Legal Regulation (NYU Press 2009) Calder R, ‘The Space Age Revolution Called Xerography’ The Guardian (6 November 1962) 3 Callaway SK and Hamilton RD III, ‘Managing Disruptive Technology—Internet Banking Ventures for Traditional Banks’ (2008) 5 International Journal of Innovation and Technology Management 55 Callon M, ‘Society in the Making: The Study of Technology as a Tool for Sociological Analysis’, The Social Construction of Technological Systems: New Directions in the Sociology and History of Technology (MIT Press 1987) Campbell RW, ‘Rethinking Regulation and Innovation in the US Legal Services Market’ (2012) 9 NYUJL & Bus 1 ——, ‘Law School Disruption’ (2013) 26 Geo. J. Legal Ethics 341 Camporesi V, ‘“We Talk a Different Language”. The Impact of US Broadcasting in Britain, 1922–1927’ (1990) 10 Journal of Film, Radio and Television 257 Carolan E, ‘Democratic Control or “High-Sounding Hocus-Pocus”?-A Public Choice Analysis of the Non-Delegation Doctrine’ (2007) 1 Dublin University Law Journal 111 Carrier M, ‘Copyright’s Blind Spot: The Innovation Asymmetry’ (Disruptive Competition Project, 18 December 2013) accessed 20 June 2020 Carroll MW, ‘Disruptive Technology and Common Law Lawmaking: A Brief Analysis of A&M Records, Inc. V. Napster, Inc.’ (2002) 9 Villanova Sports & Entertainment Law Journal 5 ——, ‘Creative Commons and the New Intermediaries’ [2006] Mich. St. L. Rev. 45 Casson HN, The History of the Telephone (2nd edn, A C McClurg & Co 1910) Caswell CK, ‘The Classification of Software: A Logical and Rational Approach’ (1984) 24 Jurimetrics 377 Chalmers D, European Union Law: Text and Materials (4th edn, Cambridge University Press 2007) Chander A, ‘The Racist Algorithm? (2017) 115 Michigan Law Review 24 Chandler JP, ‘Proprietary Protection of Computer Software’ (1981) 11 U. Balt. L. Rev 195 Checkel JT, ‘Why Comply? Social Learning and European Identity Change’ (2001) 55 International organization 553 Chen Y, Conroy NJ and Rubin VL, ‘Misleading Online Content: Recognizing Clickbait as False News’, Proceedings of the 2015 ACM on Workshop on Multimodal Deception Detection (ACM 2015)

200 Bibliography Chesbrough H, ‘Business Model Innovation: Opportunities and Barriers’ (2010) 43 Long Range Planning 354 Christensen C, ‘Exploring the Limits of the Technology S-Curve Part 1: Component Technologies’ in Robert Burgelman, Clayton Christensen and Steven Wheelwright, Strategic Management of Technology and Innovation (5th edn, McGraw-Hill 2009) Christensen CM, The Innovator’s Dilemma: The Revolutionary National Bestseller That Changed the Way We Do Business (First Collins Business Essentials, HarperBusiness 1997) ——, ‘The Ongoing Process of Building a Theory of Disruption’ (2006) 23 Journal of Product Innovation Management 39 Christensen CM and Eyring HJ, The Innovative University: Changing the DNA of Higher Education from the inside Out (John Wiley & Sons 2011) Christensen CM, Grossman JH and Hwang J, The Innovator’s Prescription: A Disruptive Solution of Health Care (McGraw Hill 2009) Christensen CM and Raynor ME, The Innovator’s Solution: Creating and Sustaining Successful Growth (Harvard Business School Press 2003) Christensen CM, Wang D and van Bever D, ‘Consulting on the Cusp of Disruption’ (2013) 91 Harvard Business Review 106 Chung H and others, ‘Alexa, Can I Trust You?’ (2017) 50 Computer 100 Clark E, ‘Looking Forward: Challenges Facing Legal Education in the 21st Century’ (2010) 3 Phoenix L. Rev 461 ‘Classified Ad 2 – No Title’ The Manchester Guardian (1901–1959) (Manchester (UK), 29 November 1950) 1 ‘Classified Ad 5 – No Title’ The Manchester Guardian (1901–1959) (Manchester (UK), 2 April 1951) 1 ‘Classified Ad 38 – No Title’ The Irish Times (Dublin, Ireland, 4 March 1950) Christensen CM, The Innovator’s Dilemma: When New Technologies Cause Great Firms to Fail (HighBridge Audio, Harvard Business School Press 2007) Clements CS, ‘Perception and Persuasion in Legal Argumentation: Using Informal Fallacies and Cognitive Biases to Win the War of the Worlds’ [2013] BYU L. Rev. 319 Coase RH, British Broadcasting: A Study in Monopoly (Routledge 2013) Coe L, The Telegraph: A History of Morse’s Invention and Its Predecessors in the United States (McFarland 2003) Columbus S, ‘Is the Mobile Phone a Disruptive Technology? A Partial Review of Evidence from Developing Economics’ in Ekekwe Ndubuisi and Nazrul Islam, Disruptive Technologies, Innovation and Global Redesign: Emerging Implications (IGI Global 2012) Comedy Central, ‘The Daily Show: With Trevor Noah’, The Daily Show (24 February 2016) ‘Computer Programming To Be Officially Renamed “Googling Stackoverflow”’ (The Allium, 10 July 2015) accessed 20 June 2020 Condon S, ‘SOPA, PIPA: What You Need to Know’ (CBS News, 18 January 2012) accessed 20 June 2020 Conte R and Castelfranchi C, ‘From Conventions to Prescriptions. Towards an Integrated View of Norms’ (1999) 7 Artificial Intelligence and Law 323

Bibliography 201 Contissa G and others, ‘Claudette Meets GDPR: Automating the Evaluation of Privacy Policies Using Artificial Intelligence’ [2018] SSRN Electronic Journal accessed 20 June 2020 Cook D, ‘Consultation, for a Change? Engaging Users and Communities in the Policy Process’ (2002) 36 Social Policy & Administration 516 Cooke C, ‘Piracy Level Downs among Younger Consumers, Reckons IPO Stats Pack’ (Complete Music Update, 5 July 2018) accessed 20 June 2020 Cooter RD, ‘Decentralized Law for a Complex Economy: The Structural Approach to Adjudicating the New Law Merchant’ (1996) 144 University of Pennsylvania Law Review 1643 ‘Copyright. Radio. Reception and Magnification by Hotel of Broadcast of Copyrighted Music as “Public Performance” within Meaning of Copyright Act’ (1934) 20 Virginia Law Review 911 Corbett S, ‘Creative Commons Licences, the Copyright Regime and the Online Community: Is There a Fatal Disconnect?’ (2011) 74 The Modern Law Review 503 Cotterrell R, ‘Culture, Comparison, Community’ (2006) 2 International Journal of Law in Context 1 Cox J, Sold on Radio (McFarland 2008) Craig BL and MacNeil H, ‘Records Making, Office Machines, and Workers in Historical Contexts: Five Photographs of Offices in the British Civil Service c. 1919 and 1947’ (2011) 32 Journal of the Society of Archivists 205 Craig DB, Fireside Politics: Radio and Political Culture in the United States, 1920–1940 (JHU Press 2000) Craig S, ‘“The Farmer’s Friend”: Radio Comes to Rural America, 1920–1927’ (2001) 8 Journal of Radio Studies 330 Curtis VA, Danquah LO and Aunger RV, ‘Planned, Motivated and Habitual Hygiene Behaviour: An Eleven Country Review’ (2009) 24 Health Education Research 655 Dalton RJ, ‘Citizenship Norms and the Expansion of Political Participation’ (2008) 56 Political Studies 76 Danneels E, ‘Disruptive Technology Reconsidered: A Critique and Research Agenda’ (2004) 21 Journal of product innovation management 246 Davis WJ, ‘The Radio Act of 1927’ (1927) 13 Virginia Law Review 611 ——, ‘Copyright and Radio’ (1929) 16 Virginia Law Review 40 Davy J, ‘Getting the Paper Under Control’ The Observer (1901–2003) (London (UK), 16 June 1957) 4 ——, ‘“Dry-Photo” Copying for the Office’ The Observer (24 April 1960) 4 Day JC, Janus A and Davis J, ‘Computer and Internet Use in the United States: 2003’ (US Census Bureau 2005) DeBriyn J, ‘Shedding Light on Copyright Trolls: An Analysis of Mass Copyright Litigation in the Age of Statutory Damages’ (2012) 19 UCLA Entertainment Law Review 79 den Hartigh E and others, ‘Platform Control during Battles for Market Dominance: The Case of Apple versus IBM in the Early Personal Computer Industry’ (2016) 48 Technovation 4

202 Bibliography Denning S, ‘Five Reasons Why Google+ Died’ (Forbes, 17 April 2015) accessed 20 June 2020 Depoorter B, Parisi F and Vanneste S, ‘Problems with the Enforcement of Copyright Law: Is There a Social Norm Backlash?’ (2005) 12 International Journal of the Economics of Business 361 Desai DR and Magliocca GN, ‘Patents, Meet Napster: 3D Printing and the Digitization of Things’ (2014) 102 Geo. LJ 1691 Dienes CT, ‘Judges, Legislators, and Social Change’ in Stuart S Nagel (ed), Law and Social Change (Books on Demand 1974) Dignum F, ‘Autonomous Agents and Social Norms’ in R Falcone and R Conte (eds) (1996) Dijck JV and Poell T, ‘Understanding Social Media Logic’ (2013) 1 Media and Communication 2 Dillon T, ‘Evidence, Policy and “Evidence for Policy”’ (2016) 11 Journal of Intellectual Property Law & Practice 92 Dirican C, ‘The Impacts of Robotics, Artificial Intelligence On Business and Economics’ (2015) 195 Procedia - Social and Behavioral Sciences 564 ‘Display Ad 1 – No Title’ The Manchester Guardian (13 August 1958) 1 ‘Display Ad 4 – No Title’ The Guardian (10 January 1963) 3 ‘Display Ad 20 – The Rank Organisation Limited: Profits Maintained in Difficult Trading Year’ The Manchester Guardian (1901–1959) (Manchester (UK), 14 October 1957) 8 ‘Display Ad 49 – No Title’ The Manchester Guardian (1 April 1959) 4 ‘Display Ad 63 – No Title’ The Guardian (12 April 1960) 14 Donohue S, ‘Aereo Can’t Be Compared to Cablevision DVR, Broadcasters Tell Supreme Court’ (FierceCable, 10 November 2013) accessed 20 June 2020 Dror Y, ‘Law as a Tool of Directed Social Change’ in Stuart S Nagel (ed), Law and Social Change (Books on Demand 1974) Dubuisson T, ‘When the World Wide Web Becomes the World Wild Web: PIPA, SOPA, OPEN Act, CISPA and The “Internet Revolution”’ DuCharme NK and Kemp RF, ‘Copyright Protection for Computer Software in Great Britain and the United States: A Comparative Analysis’ (1987) 3 Santa Clara Computer & High Tech. LJ 257 Dworkin G, ‘The Whitford Committee Report on Copyright and Designs Law’ (1977) 40 Mod. L. Rev. 685 Dyer J, Gregersen H and Christensen C, The Innovator’s DNA: Mastering the Five Skills of Disruptive Innovators (Harvard Business Press 2013) Dysart J, ‘Catch up with Tech or Lose Your Career, Judges Warn Lawyers’ (ABA Journal, 1 April 2014) accessed 20 June 2020 Economides N and Katsamakas E, ‘Two-Sided Competition of Proprietary vs. Open Source Technology Platforms and the Implications for the Software Industry’ [2005] New York University Law and Economics Working Papers 36

Bibliography 203 Egan PJ, ‘“Do Something” Politics and Double-Peaked Policy Preferences’ (2014) 76 The Journal of Politics 333 Eichhorn K, ‘Copy Machines and Downtown Scenes: Deterritorializing Urban Culture in a Pre-Digital Era’ (2015) 29 Cultural Studies 363 Elkin-Koren N, ‘Exploring Creative Commons: A Skeptical View of a Worthy Pursuit’ [2006] The Future of the Public Domain: Identifying the Commons in Information Law. The Hague: Kluwer Law International. Ellickson RC, Order Without Law (Harvard University Press 1991) Engelman R, Public Radio and Television in America: A Political History (SAGE Publications 1996) Engleman E, ‘Google Protest of Piracy Bills Upends Traditional Lobbying’ (Bloomberg. com, 19 January 2012) accessed 20 June 2020 Enzer M, UNIX for Mac OS X (Peachpit Press 2003) Ermenc JJ, ‘Interview of Chester F. Carlson, the Inventor (Dec. 16, 1965)’ (2001) 44 NYL Rev 247 ‘Facebook Reports First Quarter 2020 Results’ (Facebook Investor Relations, 29 April 2020) accessed 20 June 2020 Farivar C, ‘3D-Printed Gun Lawsuit Ends after 3+ Years—in Gun Publisher’s Favor’ (Ars Technica, 17 July 2018) accessed 20 June 2020 Faulkner A, Lange B and Lawless C, ‘Introduction: Material Worlds: Intersections of Law, Science, Technology, and Society’ (2012) 29 Journal of Law and Society 1 Feuer B, ‘In Practice: Disruptive Innovation Puts Common Law Courts in Bind’ (The Recorder, 4 February 2014) accessed 20 June 2020 Fiegerman S, ‘Inside the Sad, Expensive Failure of Google+’ (Mashable, 2 August 2015) accessed 20 June 2020 ‘Firearms Licensing Law 2015 - Publications - GOV.UK’ accessed 20 June 2020 Firpo P, Alexander L and Katayanagi C, Copyart: The First Complete Guide to the Copy Machine ((Putnam Pub Group 1978) Fischer CS, America Calling: A Social History of the Telephone to 1940 (University of California Press 1992) Fishkin J, When the People Speak: Deliberative Democracy and Public Consultation (Oxford University Press 2009) Fitz-enz J, ‘Disruptive Technology for Human Resources’ (2009) 35 Employment Relations Today 1 Fleischmann E, ‘The Impact of Digital Technology on Copyright Law’ (1988) 23 New Eng. L. Rev 45

204 Bibliography Fox M, Ciro T and Duncan N, ‘Creative Commons: An Alternative, Web-Based Copyright System’ (2005) 16 Entertainment Law Review 111 Freiberger P, ‘Bill Gates, Microsoft and the IBM Personal Computer’ (1982) 4 InfoWorld 22 Friedman LM, ‘Law Reform in Historical Perspective’ (1968) 13 St. Louis ULJ 351 Friedmann W, Law in a Changing Society (University of California Press 1959) Frischmann BM, ‘Economic Theory of Infrastructure and Commons Management, An’ (2005) 89 Minn. L. Rev 917 Furey E and Blue J, ‘She Knows Too Much – Voice Command Devices and Privacy’, 2018 29th Irish Signals and Systems Conference (ISSC) (IEEE 2018) Furey E and Blue J, ‘Alexa, Emotions, Privacy and GDPR’, Proceedings of the 32nd International BCS Human Computer Interaction Conference (2018) G SB, ‘Infringement of Musical Copyright by Radio Broadcasting’ (1927) 75 University of Pennsylvania Law Review and American Law Register 549 Gates B, ‘Open Letter to Hobbyists’ (1976) 2 Homebrew Computer Club Newsletter ——, The Road Ahead (Viking Penguin 1995) Ghidini G, Innovation, Competition and Consumer Welfare in Intellectual Property Law (Edward Elgar Publishing 2010) Ghidini G and Arezzo E, ‘Dynamic Competition in Software Development: How Copyrights and Patents, and Their Overlapping, Impact on Derivative Innovation’ (2013) 3 Queen Mary Journal of Intellectual Property 278 Gibbard A, ‘Moral Judgment and the Acceptance of Norms’ (1985) 96 Ethics 5 Gil de Zúñiga H, Jung N and Valenzuela S, ‘Social Media Use for News and Individuals’ Social Capital, Civic Engagement and Political Participation’ (2012) 17 Journal of Computer-Mediated Communication 319 Gil De Zúñiga H, Puig-I-Abril E and Rojas H, ‘Weblogs, Traditional Sources Online and Political Participation: An Assessment of How the Internet Is Changing the Political Environment’ (2009) 11 New Media & Society 553 Gilbert R, ‘Networks, Standards, and the Use of Market Dominance: Microsoft (1995)’, The Antitrust Revolution: The Role of Economics, vol 3 (Oxford University Press 1998) Goldberg MD and Burleigh JF, ‘Copyright Protection for Computer Programs: Is the Sky Falling’ (1989) 17 AIPLA QJ 294 Goldman AA, ‘Study No. 1 The History of U.S.A. Copyright Law Revision from 1901 to 1954’ (United States Government Printing Office 1960) Gordon WJ, ‘Asymmetric Market Failure and Prisoner’s Dilemma in Intellectual Property’ (1991) 17 U. Dayton L. Rev 853 Gould JW, ‘Technology And Copyright: Annotated Bibliography And Source Materials’ (1973) 10 Journal of Business Communication 54 Gourville JT, ‘Eager Sellers and Stony Buyers: Understanding the Psychology of New-Product Adoption’ (2006) 84 Harvard Business Review 98 Govindarajan V and Kopalle PK, ‘The Usefulness of Measuring Disruptiveness of Innovations Ex Post in Making Ex Ante Predictions’ (2006) 23 Journal of Product Innovation Management 12 Gowers A, Great Britain and Treasury, ‘Gowers Review of Intellectual Property’ (HMSO 2006) Green OM, ‘Radio and Reality’ (1933) 156 Saturday review of politics, literature, science and art 363

Bibliography 205 Greenbaum AJ and others, ‘Copyright and The Computer: Why the Unauthorized Duplication of Copyrighted Materials for Use as Computer Input Should Constitute Infringement’ (1968) 114 Congressional Record 8 Greenberg A, ‘Meet The “Liberator”: Test-Firing The World’s First Fully 3D-Printed Gun’ (Forbes, 5 May 2013) accessed 20 June 2020 Greffe X, ‘Artistic Jobs in the Digital Age’ (2004) 34 The Journal of Arts Management, Law, and Society 79 Grimmelmann J, ‘Copyright for Literate Robots’ (2016) 101 Iowa Law Review 657 Grossman GM and Helpman E, Special Interest Politics (MIT Press 2001) Grove AS, ‘Intel Keynote Transcript’ (Academy of Management, Annual Meeting, San Diego, CA, 9 August 1998) accessed 20 June 2020 Habermas J, ‘Political Communication in Media Society: Does Democracy Still Enjoy an Epistemic Dimension? The Impact of Normative Theory on Empirical Research’ (2006) 16 Communication Theory 411 Hafner K and Lyon M, Where Wizards Stay up Late: The Origins of the Internet (First, Simon and Schuster 1998) Hannemyr G, ‘Technology and Pleasure: Considering Hacking Constructive’ (1999) 4 First Monday Hargreaves I, ‘Digital Opportunity: A Review of Intellectual Property and Growth: An Independent Report’ (2011) Hartung A, ‘How Facebook Beat MySpace’ (Forbes, 14 January 2011) accessed 20 June 2020 Haselton T, ‘The Analysts Were Wrong: The IPhone X Is Now the Most Popular IPhone’ (2 May 2018) accessed 20 June 2020 Hasselbalch J, ‘Regulating Disruptive Innovations: The Policy Disruption of Electronic Cigarettes’, Global Reordering: Towards the Next Generation of Scholarship conference (GR:EEN 2014) HC Deb, 01 May 1968, Vol 763, 209W HC Deb, 03 September 2013, Vol 567, 35WH-56WH HC Deb, 04 August 1922, Vol 157, col 1956–1961 HC Deb, 04 May 1922, Vol 153, col 1600 HC Deb, 28 April 1988, Vol 132, 541–577 HC Deb, 28 July 1911, Vol 28, 1948–1950 Hearing Before The Subcommittee On Commerce, Manufacturing, And Trade Of The Committee On Energy And Commerce House Of Representatives, The Disrupter Series: Advanced Robotics, Serial No. 114–169, September 14, 2016, 114–2 2016 [114–169] 62; ‘Commerce Announces First Artificial Intelligence Hearing’ (U.S. Senate Committee on Commerce, Science, & Transportation, 22 November 2016) Hekman JP and Oram A, Linux in a Nutshell (First, O’Reilly & Associates, Inc 1996) Helmers C, ‘A Nybble on the Apple’ (1977) 2 BYTE Magazine 10 Henderson R, ‘The Innovator’s Dilemma as a Problem of Organizational Competence’ (2006) 23 Journal of Product Innovation Management 5

206 Bibliography Henderson RM and Clark KB, ‘Architectural Innovation: The Reconfiguration of Existing Product Technologies and the Failure of Established Firms’ (1990) 35 Administrative Science Quarterly 9 Henry L, ‘Between American And British Broadcasting’ (1933) 13 The Sackbut 128 Herring JM, ‘Public Interest, Convenience, Or Necessity In Radio Broadcasting’ (1932) 10 Harvard Business Review 280 Hetcher SA, ‘The Music Industry’s Failed Attempt to Influence File Sharing Norms’ (2004) 7 Vand. J. Ent. L. & Prac 10 ——, ‘Using Social Norms to Regulate Fan Fiction and Remix Culture’ (2009) 157 University of Pennsylvania Law Review 1869 Higgins P, ‘As Hollywood Funds a SOPA Revival Through State Officials, Google (And The Internet) Respond’ (Electronic Frontier Foundation, 19 December 2014) accessed 20 June 2020 Hildebrandt M, ‘Legal and Technological Normativity’ (2008) 12 Techné: Research in Philosophy and Technology 169 ——, ‘Legal Protection By Design: Objections And Refutations’ (2011) 5 Legisprudence: International Journal for the Study of Legislation Himma KE and Tavani HT (eds), The Handbook of Information and Computer Ethics (Wiley 2008) Hirtle PB, ‘Research, Libraries, and Fair Use: The Gentlemen’s Agreement of 1935’ (2005) 53 J. Copyright Soc’y U.S.A 545 HL Deb, 02 November 1988, Vol 501, cc211–213 HL Deb, 04 December 1911, Vol 10, cc451–87 HL Deb, 05 June 1985, Vol 464, cc823–9 HL Deb, 10 May 1985, Vol 463, cc865–75 HL Deb, 14 February 1956, Vol 195, c884–966 HL Deb, 15 November 1955, Vol 194, cc498–559 Hogan T, ‘New Computers Cause Hardware Wars’ (1981) 3 InfoWorld 1 Home Office, ‘Guide on Firearms Licensing Law’ (UK Government 2015) Horn MB and Staker H, Blended: Using Disruptive Innovation to Improve Schools (John Wiley & Sons 2017) Horten M, ‘The Aereo Dilemma and Copyright in the Cloud’ (2014) 3 Internet Policy Review 1 Houlihan ED, ‘Law Firm IT Strategy: Change Is Slow But Happening’ (Blue Hill Research, 19 September 2014) accessed 20 June 2020 H.R. 3626 - To extend the Undetectable Firearms Act of 1988 Public Law No: 113–57 H.R. 6934 — 96th Congress: Computer Software Copyright Act of 1980 H.R. Rep. No. 94–1476, 94th Cong., 2d Sess. 19 (1976) H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 52 (1976) H.R. Rep. No. 94-1476, 94th Cong., 2d Sess. 116 (1976) H.R. Rep. No. 2222, 60th Cong., 2d Sess.: 7–9 (1909) Hugenholtz PB, ‘The Story of the Tape Recorder and the History of Copyright Levies’, Copyright and the Challenge of the New, vol 25 (Kluwer Law International 2012) Hussain S, Rashidi MZ and Bukhari F, ‘Consumer Innovativeness Leading to Innovation Adoption’ (2014) 6 European Journal of Business and Management 229

Bibliography 207 Hutchinson L, ‘3D Printed Handgun Available for Download after Successful TestFirings’ (Ars Technica, 6 May 2013) accessed 20 June 2020 Huurdeman AA, The Worldwide History of Telecommunications (John Wiley & Sons 2003) IBM, ‘IBM Archives: Announcement Press Release’ (23 January 2003) accessed 20 June 2020 ——, ‘IBM Archives: The Birth of the IBM PC’ (23 January 2003) accessed 20 June 2020 ‘Internet’s Dark Day: Anti-Piracy Bills Take a Beating’ (The Seattle Times, 18 January 2012) accessed 20 June 2020 Interview with Clayton M Christensen, ‘Disruptive Innovation Explained’ (30 March 2012) accessed 20 June 2020 ‘Introductory Note to the Anti-Counterfeiting Trade Agreement’ (2011) 50 International Legal Materials 239 Iskrant J, ‘The Impact of the Multiple Forms of Computer Programs on Their Adequate Protection by Copyright’ (1968) 18 Copyright L. Symp 92 Islam N and Ozcan S, ‘Disruptive Product Innovation Strategy: The Case of Portable Digital Music Player’ in Ekekwe Ndubuisi and Nazrul Islam, Disruptive Technologies, Innovation and Global Redesign: Emerging Implications (IGI Global 2012) Jackson C and Orebaugh A, ‘A Study of Security and Privacy Issues Associated with the Amazon Echo’ (2018) 1 International Journal of Internet of Things and CyberAssurance 10 Jacobson G, ‘Carlson’s Timeless Lessons on Innovation’ [1989] 78 Management Review 13 Jesiek B, ‘Democratizing Software: Open Source, the Hacker Ethic, and Beyond’ (2003) 8 First Monday Jin GZ, ‘Artificial Intelligence and Consumer Privacy’ (2018) NBER Working Paper No. 24253 NATIONAL BUREAU OF ECONOMIC RESEARCH 25 Jones AP and Quillan HW, ‘Broadcasting Regulation: A Very Brief History’ (1985) 37 Fed. Comm. LJ 107 Jones SW, A Treatise on the Law of Telegraph and Telephone Companies Including Electric Law (2nd edn, Vernon Law Book Company 1916) ‘Judge Says Photo “menace” Chokes the Law’ The Guardian (21 July 1971) 6 Kaal WA and Vermeulen EPM, ‘How to Regulate Disruptive Innovation - From Facts to Data’ (2017) 57 Jurimetrics Journal of Law, Science and Technology 169 Kahneman D and Tversky A, ‘Choices, Values, and Frames.’ (1984) 39 American psychologist 341 Kaminstein AL, ‘Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law’ (1961) Kayali L, ‘Europe’s Controversial Copyright Reform Turns 1 amid Ongoing Tensions’ (POLITICO, 15 April 2020) accessed 20 June 2020

208 Bibliography Kelleher K, ‘How Facebook Learned from MySpace’s Mistakes - Fortune’ (Fortune, 19 November 2010) accessed 20 June 2020 Keller BP, ‘Condemned to Repeat the Past: The Reemergence of Misappropriation and Other Common Law Theories of Protection for Intellectual Property’ (1997) 11 Harv. JL & Tech 401 Keller EDW and Shanklin WL, ‘The Perfect Storm for Disruptive Technologies’ (2005) 15 The Marketing Management Journal 172 Kellner D and Share J, ‘Critical Media Literacy, Democracy, and the Reconstruction of Education’ [2007] Media literacy: A reader 3 Kerr D, ‘Millions Sign Google’s Anti-SOPA Petition’ (CNET, 18 January 2012) accessed 20 June 2020 Kincaid DL, ‘From Innovation to Social Norm: Bounded Normative Influence’ (2004) 9 Journal of Health Communication 37 Klang M, ‘Disruptive Technology: Effects of Technology Regulation on Democracy’ (Doctoral Dissertation, Göteborg University 2006) Knzm H, ‘The Challenge of Implementation: Getting Law Reform Reports Onto the Statute Book’ (2013) 13 Oxford University Commonwealth Law Journal 239 Kominski R and Newburger E, ‘Access Denied: Changes in Computer Ownership and Use: 1984–1997’, Annual Meeting of American Sociological Association (1999) Koops EJ and others, Starting Points for ICT Regulation; Deconstructing Prevalent Policy One-Liners (TMC Asser Press 2006) Korinek A, Hopkins J and Stiglitz JE, ‘Artificial Intelligence, Worker-Replacing Technological Progress and Income Distribution’ (2017) 14 Kranzberg M, ‘Technology and History: “Kranzberg’s Laws”’ (1986) 27 Technology and Culture 544 Krawczyk M and others, ‘“Piracy Is Not Theft!” Is It Just Students Who Think So?’ (2015) 54 Journal of Behavioral and Experimental Economics 32 Kretschmer MT, ‘Copyright Protection for Software Architecture: Just Say No’ (1988) 1988 Columbia Business Law Review 823 Lander J, ‘Invention or Innovation?’ (2012) 28 Inventor’s Digest 38 Landes DS, The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (Cambridge University Press 1969) Langheinrich M, ‘Privacy by Design — Principles of Privacy-Aware Ubiquitous Systems’ in Gregory D Abowd, Barry Brumitt and Steven Shafer (eds), Ubicomp 2001: Ubiquitous Computing, vol 2201 (Springer Berlin Heidelberg 2001) Larsson S, ‘Conceptions in the Code: What “the Copyright Wars” Tell Us About Creativity, Social Change and Normative Conflicts in the Digital Society’ (2012) 4 Societal Studies 1009 Latman A, ‘Study No. 14 Fair Use of Copyrighted Works’ (United States Government Printing Office 1960) accessed 20 June 2020 Latour B, ‘Technology Is Society Made Durable’ (1990) 38 The Sociological Review 103

Bibliography 209 Lee TB, ‘Internet Wins: SOPA and PIPA Both Shelved’ (Ars Technica, 20 January 2012) accessed 20 June 2020 ——, ‘The Aereo Case, Explained’ (Vox, 7 November 2018) accessed 20 June 2020 Leenes R, ‘Framing Techno-Regulation: An Exploration of State and Non-State Regulation by Technology’ (2011) 5 Legisprudence 143 Lemley MA, ‘Convergence in the Law of Software Copyright’ (1995) 10 Berkeley Tech. LJ 1 ——, ‘Is the Sky Falling on the Content Industries’ (2011) 9 J. on Telecomm. & High Tech. L 125 ‘Leningrad’s Gift to Manchester’ The Manchester Guardian (1901–1959) (Manchester (UK), 24 March 1956) 12 Lenthall B, Radio’s America: The Great Depression and the Rise of Modern Mass Culture (The University of Chicago Press 2007) Lessig L, ‘The Regulation of Social Meaning’ [1995] 62 The University of Chicago Law Review 943 ——, Free Culture: How Big Media Uses Technology and the Law to Lock down Culture and Control Creativity (Penguin Press 2004) ——, Code: Version 2.0 (Basic Books 2006) ——, ‘Re-Crafting a Public Domain’ (2006) 18 Yale JL & Human 56 Liao Y and others, ‘Understanding the Role of Privacy and Trust in Intelligent Personal Assistant Adoption’ in Natalie Greene Taylor and others (eds), Information in Contemporary Society, vol 11420 (Springer International Publishing 2019) Lieb CH and others, ‘Economics, Automation, and Copyright’ (1968) 114 Congressional Record 10 Lieberman D, The Province of Legislation Determined: Legal Theory in EighteenthCentury Britain (Cambridge University Press 2002) Lindquist SA and Cross FC, ‘Stability, Predictability And The Rule Of Law: Stare Decisis As Reciprocity Norm’ (2011) Litman J, Digital Copyright (Prometheus Books 2006) ‘Local and District’ Manchester Times (Manchester, England, 29 December 1883) Loch KD, Straub DW and Kamel S, ‘Diffusing the Internet in the Arab World: The Role of Social Norms and Technological Culturation’ (2003) 50 IEEE Transactions on Engineering Management 45 Lochte RH, ‘Invention and Innovation of Early Radio Technology’ (2000) 7 Journal of Radio Studies 93 Lockhart TJ, ‘Did You Know…There’s a Trademark Graveyard?’ (2008) 63 INTA Bulletin Loevinger L, ‘Science, Technology and Law in Modern Society’ (1985) 26 Jurimetrics J 1 Loftus HE and Kent A, ‘Automation in the Library—an Annotated Bibliography’ (1956) 7 American Documentation 110 Lohr S, ‘Apple-1 Computers Jump in Value at Auctions’ The New York Times (23 May 2013) Mace S, ‘IBM Developing Software to Put PCs in the Schools’ (1982) 4 InfoWorld 23 ——, ‘Retailers Use Different Marketing Avenues to Sell PC’ (1982) 4 InfoWorld 19

210 Bibliography Macey JR, ‘Promoting Public-Regarding Legislation through Statutory Interpretation: An Interest Group Model’ (1986) 86 Columbia Law Review 223 Macmillan F, ‘Libraries, Copyright and Digitisation’ (2000) 8 Australian Law Librarian 36 MacNeish AC, ‘Canadian Affairs: The Radio Commission’ (1935) 159 Saturday review of politics, literature, science and art 412 Maidique MA and Hayes RH, ‘The Art of High-Technology Management’, Strategic Management of Technology and Innovation (5th edn., McGraw-Hill 2009) Malhotra Y and Galletta DF, ‘Extending the Technology Acceptance Model to Account for Social Influence: Theoretical Bases and Empirical Validation’, Proceedings of the 32nd Annual Hawaii International Conference on Systems Sciences, 1999. (IEEE 1999) Manesh M, ‘The Immorality of Theft, the Amorality of Infringement’ [2006] Stan. Tech. L. Rev. 94 Manheim K and Kaplan L, ‘Artificial Intelligence: Risks to Privacy and Democracy’ (2019) 21 Yale J.L. & Tech 106 Marke JJ, ‘Copyright and Intellectual Property’ (1967) 32 Alb. L. Rev 1 Markides C, ‘Disruptive Innovation: In Need of Better Theory’ (2006) 23 Journal of Product Innovation Management 19 Markoff J, ‘CA Man Likens “Freeware” to User-Supported TV’ [1982] InfoWorld 15 Marlborough, ‘The Telephone and the Post Office’ (1892) 6 The New Review 320 Martin E, ‘What Is the Best Operating System for Coding in 2016’ (devsWorld, 3 February 2017) accessed 20 June 2020 Martin K, ‘Ethical Implications and Accountability of Algorithms’ (2019) 160 Journal of Business Ethics 835 Marvin C, When Old Technologies Were New: Thinking About Electric Communication in the Late Nineteenth Century (first, Oxford University Press 1988) Maslow AH, ‘A Theory of Human Motivation.’ (1943) 50 Psychological Review 370 Masnick M, ‘Innovation Asymmetry: Why The Copyright Industry Always Freaks Out About New Technologies | Techdirt’ (Techdirt., 27 January 2014) accessed 20 June 2020 McAdams RH, ‘The Origin, Development, and Regulation of Norms’ (1997) 96 Michigan Law Review 338 McArdle H, ‘Buccaneers of the Airwaves: How Scotland’s Pirate Radio Station Shook up Broadcasting’ Sunday Herald; Glasgow (UK) (Glasgow (UK), 3 January 2016) McClean D and Schubert K, Dear Images: Art, Copyright and Culture (Ridinghouse 2002) McClure R, Stern D and Banks MA, ‘Broadcast News’ (2007) 40 Cincinnati Magazine 122 McCorduck P, Machines Who Think: A Personal Inquiry into the History and Prospects of Artificial Intelligence (25th anniversary update, AK Peters 2004) McLuhan E and Zingrone F, Essential McLuhan (House of Anansi 1995) Metcalfe A, Diaz V and Wagoner R, ‘Academe, Technology, Society, and the Market: Four Frames of Reference for Copyright and Fair Use’ (2003) 3 portal: Libraries and the Academy 191

Bibliography 211 Mikla VI and Mikla VV, Amorphous Chalcogenides: The Past, Present and Future (Elsevier 2011) Mitchell BR, British Historical Statistics (CUP Archive 1988) Moglen E, ‘Anarchism Triumphant: Free Software and the Death of Copyright’ (1999) 4 First Monday Moore GA, ‘Crossing the Chasm-and Beyond’ in Burgelman et al., Strategic Management of Technology and Innovation (5th Edition, International Edition, McGraw-Hill 2004) Moore R and McMullan E, ‘Perceptions of Peer-to-Peer File Sharing among University Students’ (2004) 11 Journal of Criminal Justice and Popular Culture 1 Moses LB, ‘AGENTS OF CHANGE: How the Law “Copes” with Technological Change.’ (2011) 20 Griffith Law Review 763 Mossberger K, Tolbert CJ and McNeal RS, Digital Citizenship: The Internet, Society, and Participation (MIT Press 2008) Mountain DR, ‘Could New Technologies Cause Great Law Firms to Fail’ (2002) 52 Syracuse L. Rev 1065 Mountain DR, ‘Disrupting Conventional Law Firm Business Models Using Document Assembly’ (2006) 15 International Journal of Law and Information Technology 170 Mountain DR, ‘An Update and Reconsideration of Chrissy Burns’ “Online Legal Services-A Revolution That Failed?”’ (2010) 1 European Journal of Law and Technology Musa JD, ‘Software Engineering: The Future of a Profession’ [1985] 2 IEEE Software 55 National Commission On New Technological Uses Of Copyrighted Works, Final Report 3–8 (1979) ‘NCLIS Photocopy Contract Awarded to King Research’ (1976) 101 Library Journal 1578 Ndubuisi E and Islam N, Disruptive Technologies, Innovation and Global Redesign: Emerging Implications: Emerging Implications (IGI Global 2012) Needham R, ‘Tape Recording, Photocopying, and Fair Use’ (1957) 10 Copyright L. Symp 75 Netanel NW, ‘Why Has Copyright Expanded? Analysis and Critique’ (2008) New Directions in Copyright Law Netburn, ‘Google Says 4.5 Million People Signed Anti-SOPA Petition Today’ (LA Times Blogs - Technology, 18 January 2012) accessed 20 June 2020 ‘New Concept Gains International Acceptance’ The Guardian (21 September 1966) 13 Nhan J, Bowen K and Bartula A, ‘A Comparison of a Public and Private University of the Effects of Low-Cost Streaming Services and Income on Movie Piracy’ (2020) 60 Technology in Society 101213 Nonet P and Selznick P, Law and Society in Transition: Toward Responsive Law (Transaction Publishers 1978) O’Leary DE, ‘The Internet, Intranets, and the AI Renaissance’ (1997) 30 Computer 71 Ondrus J and Pigneur Y, ‘An Assessment of NFC for Future Mobile Payment Systems’ (IEEE 2007) Organ EW, ‘MUSICIANS AND RADIO’ (1930) 10 Musical mirror, Jan.1929– Dec.1930 98

212 Bibliography ‘Overhead Wires: Alarming Accident’ The Bristol Mercury and Daily Post (Bristol, England, 20 December 1883) Owen D, Copies in Seconds (Simon & Schuster Paperbacks 2004) ——, ‘Making Copies’ [2004] Smithsonian Magazine accessed 20 June 2020 Paap J and Katz R, ‘Anticipating Disruptive Innovation’ (2004) 47 Research Technology Management 13 Pasiuk L, Vault Guide to the Top Tech Employers (Vault Inc 2006) Pataki LP Jr, ‘Copyright Protection for Computer Programs Under the 1976 Copyright Act’ (1976) 52 Ind. LJ 503 Peckham M, ‘Did It Work? “Day After” Results of the SOPA, PIPA Blackout’ [2012] Time accessed 20 June 2020 Pendered ML, ‘Radio and the Amateur’ (1928) 4 The British Musician 37 Peters K, ‘Sinking the Radio “Pirates”: Exploring British Strategies of Governance in the North Sea, 1964–1991’ (2011) 43 Area 281 Peterson A, ‘SOPA Died in 2012, but Obama Administration Wants to Revive Part of It’ The Washington Post (5 August 2013) Pikkarainen T and others, ‘Consumer Acceptance of Online Banking: An Extension of the Technology Acceptance Model’ (2004) 14 Internet research 224 Pinker S, The Better Angels of Our Nature: The Decline of Violence In History And Its Causes (Penguin UK 2011) Polat RK, ‘The Internet and Political Participation: Exploring the Explanatory Links’ (2005) 20 European Journal of Communication 435 Posner EA, Law and Social Norms (Harvard University Press 2000) Posner RA, ‘Social Norms and the Law: An Economic Approach’ (1997) 87 The American Economic Review 365 Posner RA and Rasmusen EB, ‘Creating and Enforcing Norms, with Special Reference to Sanctions’ (2000) 19 International Review of law and economics 369 POST OFFICE—OVERHEAD WIRES HC Deb, 14 June 1883, Vol 280, cc556–7 PR Script Managers, ‘How Pirate Radio Changed the Face of Broadcasting 50 Years On’ Diss Mercury/Wymondham & Attleborough Mercury; Norwich (UK) (United Kingdom, 17 August 2017) Press A, ‘Senator Seeks to Extend Ban on “undetectable” 3D-Printed Guns’ The Guardian (17 November 2013) Price R, ‘A Genealogy of the Chemical Weapons Taboo’ (1995) 49 International Organization 73 Price RM, The Chemical Weapons Taboo (Cornell University Press 1997) ‘Progress of the Electric Telegraph.’ (1852) 8 Scientific American 25 Raghavan SA and Chand DR, ‘Diffusing Software-Engineering Methods’ (1989) 6 IEEE software 81 Rainie L and Zickuhr K, ‘Americans’ Views on Mobile Etiquette’ (Pew Research Center 2015) accessed 20 June 2020 Raymond ES, ‘Homesteading the Noosphere’ (1998) 3 First Monday accessed 20 June 2020

Bibliography 213 Red Cross, ‘Water and Sanitation Global Momentum’ (International Federation of Red Cross and Red Crescent Societies) accessed 20 June 2020 Reimer J, ‘From Altair to IPad: 35 Years of Personal Computer Market Share’ (Ars Technica, 14 August 2012) accessed 20 June 2020 Ricciuti M, ‘Open Source: Rebels at the Gate’ [1995] CNETNews.com Richards TB, ‘The Value of the Copyright Clause in Construction of Copyright Law’ (1975) 2 Hastings Const. LQ 221 Riekkinen J, ‘Piracy versus Netflix: Subscription Video on Demand Dissatisfaction as an Antecedent of Piracy’, Proceedings of the 51st Hawaii International Conference on System Sciences (2018) Robert K, ‘Computer Use in the United States: 1984’ (US Department of Commerce, Bureau of the Census 1988) Current Population Reports Robertson A, ‘UK Home Office Adds Formal Ban on 3D-Printed Guns to Firearms Rules’ (The Verge, 6 December 2013) accessed 20 June 2020 Robertson CB, ‘The Facebook Disruption: How Social Media May Transform Civil Litigation and Facilitate Access to Justice’ (2012) 65 Ark. L. Rev 75 Robinson D, ‘Printer Ink Cartridges: Why You’re Paying More but Getting a Lot Less’ (The Guardian, 23 February 2013) accessed 20 June 2020 Reagan R, “Remarks to Administration Officials on Domestic Policy, 13 December 1988,” Weekly Compilation of Presidential Documents, vol. 24, no. 50, 19 December 1988, 1615−20 Rosati E, ‘Do Ask, Do Tell, Do Nothing: The EU Commission and All Those Copyright Consultations’ (2014) 9 Journal of Intellectual Property Law & Practice 785 Roscigno VJ and Danaher WF, The Voice of Southern Labor: Radio, Music, and Textile Strikes, 1929–1934 (U of Minnesota Press 2004) Rosen S, ‘Programming Systems and Languages 1965–1975’ (1972) 15 Communications of the ACM 591 Rousso A and Schwartz S, ‘Apparatus, Method and System of Artificial Intelligence for Data Searching Applications’ accessed 20 June 2020 ‘Rules Relaxed For Libraries’ The Manchester Guardian (1901–1959) (25 May 1957) 12 Sadow A, ‘Book Copying Machines; A Description and Evaluation’ (1958) 46 Bulletin of the Medical Library Association 344 Samuelson P, ‘Reflections on the State of American Software Copyright Law and the Perils of Teaching It’ (1988) 13 Colum.-VLA JL & Arts 61 Samuelson P and Wheatland T, ‘Statutory Damages in Copyright Law: A Remedy in Need of Reform’ (2009) 51 William and Mary Law Review 75 Sanchez J, ‘The Supreme Court’s Aereo Effect Might Evaporate Silicon Valley’s Cloud’ The Guardian (25 June 2014)

214 Bibliography Sanger DE, ‘The Gavel Comes Down On Computer Copycats’ The New York Times (23 October 1983) Sarno EF Jr, ‘The National Radio Conferences’ (1969) 13 Journal of Broadcasting 189 Saunders JS, ‘Origin of the “Gentlemen’s Agreement” of 1935’, Repography and Copyright Law (American Institute of Biological Sciences 1964) Savov V, ‘The SOPA Blackout: Wikipedia, Reddit, Mozilla, Google, and Many Others Protest Proposed Law’ (The Verge, 18 January 2012) accessed 20 June 2020 Sawyer ME, ‘The Photocopying Machine: How Did It Begin’ (1979) 72 Law Libr. J. 91 Scacchi W and others, ‘Understanding Free/Open Source Software Development Processes’ (2006) 11 Software Process: Improvement and Practice 95 Schaffert RM and Oughton CD, ‘Xerography: A New Principle of Photography and Graphic Reproduction’ (1948) 38 J. Opt. Soc. Am 991 Schiffer MB, The Portable Radio in American Life (University of Arizona Press 1991) Schlender B and Martin MH, ‘Paradise Lost Apple’s Quest For Life After Death After A Secret, Decade-Long Search For A Partner, The Company That Invented Personal Computing Will Likely Disappear. But Its Technology Could Live On To Challenge The Hegemony Of Microsoft And Intel In The Age Of The Internet’ [1996] Fortune Magazine Schlender B and Moore AH, ‘THE FUTURE OF THE PC’ [1991] Fortune Magazine Schumpeter JA, Capitalism, Socialism and Democracy (Fifth, Routledge 1939) Scott P, ‘The Determinants of Competitive Success in the Interwar British Radio Industry’ (2012) 65 The Economic History Review 1303 ——, ‘When Innovation Becomes Inefficient: Reexamining Britain’s Radio Industry’ (2014) 88 Business History Review 497 Scott RE, ‘The Limits of Behavioral Theories of Law and Social Norms’ (2000) 86 Virginia Law Review 1603 Scott WL and Jarnagin MP, A Treatise upon the Law of Telegraphs: With an Appendix, Containing the General Statutory Provisions of England, Canada, the United States, and the States of the Union, upon the Subject of Telegraphs (Little, Brown & Company 1868) Seelhorst M, ‘Possible Dreams: Americans Listen in on the World with the Invention of the Radio’ (1992) 169 Popular Mechanics 34 Seth S, ‘Is Facebook Dead? Ask a Millennial’ (CNBC, 5 February 2016) accessed 20 June 2020 Sethi AK, The Business of Electronics: A Concise History (Palgrave Macmillan 2013) Shaw RR, ‘Publication and Distribution of Scientific Literature’ (1956) 17 College & Research Libraries 293 Shea T, ‘New PC Rival Leaps on Horizon’ (1982) 4 InfoWorld 6 Silver HM, ‘New Methods Of Printing And Reproducing Scholarly Materials’ (1951) 2 American Documentation 54 Silverman BG, ‘Software Cost and Productivity Improvements: An Analogical View.’ (1985) 18 Computer 86 Simon HA, ‘Artificial Intelligence: An Empirical Science’ (1995) 77 Artificial Intelligence 95

Bibliography 215 Singer AJ, Stepping Out in Cincinnati: Queen City Entertainment 1900–1960 (Arcadia Publishing 2005) Siu KP, ‘Technological Neutrality: Toward Copyright Convergence in the Digital Age’ (2013) 71 University of Toronto Faculty of Law Review 76 Slotten HR, Radio and Television Regulation: Broadcast Technology in the United States, 1920–1960 (JHU Press 2000) Smith JR and Louis WR, ‘Group Norms and the Attitude-Behaviour Relationship’ (2009) 3 Social and Personality Psychology Compass 19 Smith RA, ‘Interest Group Influence in the U.S. Congress’ (1995) 20 Legislative Studies Quarterly 89 Smith WD, ‘Xerox Introduces Speedy Copier’ The New York Times (15 October 1964) Smulyan S, ‘Radio Advertising to Women in Twenties America: “A Latchkey to Every Home”’ (1993) 13 Historical Journal of Film, Radio and Television 299 Sobel BLW, ‘Artificial Intelligence’s Fair Use Crisis’ (2017) 41 COLUM. J.L. & ARTS 45 Solsman JE, ‘How Supreme Court Ruling Affects Aereo, the Cloud, and You’ (CNET) accessed 20 June 2020 Sood A and Tellis GJ, ‘Demystifying Disruption: A New Model for Understanding and Predicting Disruptive Technologies’ (Social Science Research Network 2010) SSRN Scholarly Paper ID 1629493 accessed 20 June 2020 ‘Sooner than Expected the Telephone Has Been Applied to Actual Business Purposes, and Is Now Advertised for All Who May Choose to Buy.’ Boston Daily Advertiser (Boston, MA, 23 May 1877) Sophar GJ and Heilprin LB, ‘The Determination Of Legal Facts And Economic Guideposts With Respect To The Dissemination Of Scientific And Educational Information As It Is Affected By Copyright-A Status Report’ (Department Of Health, Education, And Welfare 1967) Final Report ‘Special Telegrams, &c.’ Liverpool Mercury etc (Liverpool, England, 29 October 1883) Spinello RA, ‘Intellectual Property: Legal and Moral Challenges of Online File Sharing’ (2008) in Kenneth Einar Himma and Herman T Tavani (eds), The Handbook of Information and Computer Ethics (Wiley and Sons) Stallman R, ‘Transcript of Richard M. Stallman’s Speech, “Free Software: Freedom and Cooperation” New York University in New York, New York on 29 May 2001’ (New York University in New York, New York, 29 May 2001) ——, ‘15 Years of Free Software’ (GNU Operating System) accessed 20 June 2020 Stallman R and Free Software Foundation, Free Software Free Society: Selected Essays of Richard M. Stallman (Third Edition, Free Software Foundation, Inc 2015) Standage T, The Victorian Internet: The Remarkable Story of the Telegraph and the Nineteenth Century’s On-Line Pioneers (Berkeley Books 1998) Stenovec T, ‘Myspace’s Biggest Moments: Memories Of A Fallen Social Network’ (The Huffington Post, 29 August 2011) accessed 20 June 2020

216 Bibliography Stern PC and others, ‘A Value-Belief-Norm Theory of Support for Social Movements: The Case of Environmentalism’ (1999) 6 Human ecology review 81 Stern RH, ‘Another Look at Copyright Protection of Software: Did the 1980 Act Do Anything for Object Code’ (1981) 3 Computer/Law Journal 1 Stouffer SA, ‘An Analysis of Conflicting Social Norms’ (1949) 14 American Sociological Review 707 Sunstein CR, ‘On the Expressive Function of Law’ [1996] 144 University of Pennsylvania Law Review 2021 ——, ‘Social Norms and Social Roles’ (1996) Coase-Sandor Working Paper Series in Law and Economics Working Paper No. 36 University of Chicago Law School 1 Suppes P, ‘Uses Of Artificial Intelligence In Computer-Based Instruction’ [1990] Artificial Intelligence in Higher Education 206 Susskind R, The End of Lawyers: Rethinking the Nature of Legal Services (Oxford University Press 2010) ——, Tomorrow’s Lawyers: An Introduction to Your Future (Oxford University Press 2013) Svensson M and Larsson S, Social Norms and Intellectual Property: Online Norms and the European Legal Development (Lund University 2009) ——, ‘Intellectual Property Law Compliance in Europe: Illegal File Sharing and the Role of Social Norms’ (2012) 14 New media & society 1147 Taylor AH, ‘Radio Communication with Short Waves’ (1926) 22 The Scientific Monthly 356 Teece D, ‘Profiting from Technological Innovation: Implications for Integration, Collaboration, Licensing, and Public Policy’ [2004] Burgelman, et. al., op. cit 32 Tehranian J, ‘Infringement Nation: Copyright Reform and the Law/Norm Gap’ [2007] Utah L. Rev. 537 Tellis GJ, ‘Disruptive Technology or Visionary Leadership?*’ (2006) 23 Journal of Product Innovation Management 34 Temporary National Economic Committee, Investigation of Concentration of Economic Power. (Monograph no 1-Price Behavior and Business Policy, US Govt Print Off 1940) ‘The Decision in the Telephone Case’ Glasgow Herald (Glasgow, Scotland, 24 December 1880) ‘——’ Glasgow Herald (Glasgow, Scotland, 29 December 1880) The Department of Commerce Internet Policy Task Force, ‘Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy’ (The Department of Commerce 2013) ‘The Development of the Telephone Law’ Glasgow Herald (Glasgow, Scotland, 23 April 1892) ‘The Significance of Radio’ (1935) 11 British Musician and Musical News 51 The United States Copyright Office, ‘Section 512 of Title 17: A Report of the Register of Copyrights’ (2020) Thierer AD, ‘Unnatural Monopoly: Critical Moments in the Development of the Bell System Monopoly’ (1994) 14 The Cato Journal 267 Thompson C, ‘How the Photocopier Changed the Way We Worked—and Played’ [2015] Smithsonian Magazine Tomlin D, ‘Chester Carlson: Original, Novel, Ingenious’ (2001) 44 NYL Rev 287

Bibliography 217 Tushman ML and Anderson P, ‘Technological Discontinuities and Organizational Environments’ [1986] 31 Administrative science quarterly 439 Tyler TR, ‘Compliance with Intellectual Property Laws - A Psychological Perspective’ (1997) 29 New York University Journal of International Law and Politics 219 UNGA Res 64/292 ‘The human right to water and sanitation’ (3 August 2010) Doc A/RES/64/292 UNGA Res 70/1 ‘Transforming our world: the 2030 Agenda for Sustainable Development’ (25 September 2015) UN Doc A/70/L.1 Unger RM, Law in Modern Society (The Free Press 1976) United States Bureau of the Census, Historical Statistics of the United States, Colonial Times to 1970 (US Department of Commerce, Bureau of the Census 1975) US Census Bureau, Current Population Survey, 2001 Upton F and others, The Disrupter Series: Advanced Robotics 2016 [114–169] 62 Utterback JM and Acee HJ, ‘Disruptive Technologies: An Expanded View’ (2005) 9 International Journal of Innovation Management 1 Valimaki M, ‘Dual Licensing in Open Source Software Industry’ [2002] SSRN Electronic Journal accessed 20 June 2020 van Grove J, ‘Why Teens Are Tiring of Facebook’ (CNET, 2 March 2013) accessed 20 June 2020 Vardhan H, ‘Radio Broadcast Technology’ (2002) 7 Resonance 53 Varmer B, ‘Study No. 15 Photoduplication of Copyrighted Material by Libraries’ (United States Government Printing Office 1959) accessed 20 June 2020 Vaske JJ and Grantham CE, Socializing the Human-Computer Environment (Intellect Books 1990) Verbeek P-P and Slob AFL, User Behavior and Technology Development: Shaping Sustainable Relations Between Consumers and Technologies (Springer Science & Business Media 2006) Vidiksis C, ‘How to Buffer Your Way Out of a Scrape: Potential Abuse of the Cartoon Network v. Cablevision Decision’ (2009) 4 Brook. J. Corp. Fin. & Com. L 139 Vlaar P, De Vries P and Willenborg M, ‘Why Incumbents Struggle to Extract Value from New Strategic Options: Case of the European Airline Industry’ (2005) 23 European Management Journal 154 Wajcman J, ‘Addressing Technological Change: The Challenge to Social Theory’ (2002) 50 Current Sociology 347 Walden I (ed), Telecommunications Law and Regulation (Oxford University Press 2012) Weinberg L, ‘The Photocopying Revolution and the Copyright Crisis’ [1975] The Public Interest 99 Weisman J, ‘In Piracy Bill Fight, New Economy Rises Against Old’ The New York Times (18 January 2012) Wessel M and Christensen CM, ‘Surviving Disruption’ (2012) 90 Harvard Business Review 56 West J and O’mahony S, ‘The Role of Participation Architecture in Growing Sponsored Open Source Communities’ (2008) 15 Industry and Innovation 145 ‘What Is Conversational AI? - Alexa Skills Kit Official Site’ accessed 20 June 2020

218 Bibliography ‘What Is Copyleft?’ (GNU Operating System) accessed 20 June 2020 White GR, ‘Management Criteria for Effective Innovation’ [1978] Technology Review 21 Whitford, ‘Copyright and Designs Law: Report of the Committee to Consider the Law on Copyright and Designs’ (1977) Cmnd 6732 Wiens K, ‘You Bought That Gadget, and Dammit, You Should Be Able to Fix It’ (WIRED, 22 March 2017) accessed 20 June 2020 Wikström P and DeFillippi R, Business Innovation and Disruption in the Music Industry (Edward Elgar Publishing 2016) Wikström P, DeFillippi R and Aram S (eds), ‘Slicing the Pie: The Search for an Equitable Recorded Music Economy’, Business Innovation and Disruption in the Music Industry (Edward Elgar Publishing 2016) Wilbur MA, ‘Copyright Registration for Secret Computer Programs: Robbery of the Phoenix’s Nest’ (1984) 24 Jurimetrics 357 Williams LA, ‘Race, Rat Bites, and Unfit Mothers: How Media Discourse Informs Welfare Legislation Debate’ (1994) 22 Fordham Urb. LJ 1159 WIRE P, ‘OUR LONDON CORRESPONDENCE’ The Manchester Guardian (1901–1959) (Manchester (UK), 24 November 1949) 4 Wise D, ‘The Colossus Runs, Not Plods - How the IBM PC Came to Be’ (1982) 4 InfoWorld 13 Wladawsky-Berger I, ‘“Soft” Artificial Intelligence Is Suddenly Everywhere’ (WSJ, 16 January 2015) accessed 20 June 2020 Woodliffe J, ‘Unauthorised Broadcasting in Offshore Waters: Silence Finally Rules the Waves’ (1991) 6 International Journal of Estuarine and Coastal Law 371 Wu T, ‘Will Artificial Intelligence Eat the Law? The Rise of Hybrid Social-Ordering Systems’ (2019) 119 Columbia Law Review 2001 Xerox Corporation, ‘The Story of Xerography’ accessed 20 June 2020 Yoo CS, ‘Toward a Closer Integration of Law and Computer Science’ (2014) 57 Communications of the ACM 33 Zasu Y, ‘Sanctions by Social Norms and the Law: Substitutes or Complements?’ (2007) 36 The Journal of Legal Studies 379 Zimmerman D, ‘SAF, Dept. of Justice Settle Defense Distributed First Amendment Lawsuit’ (The Truth About Guns, 10 July 2018) accessed 20 June 2020 ‘A Conversation with Fred von Lohmann’ accessed 20 June 2020

Index

3D printing 13–14; 3D printed firearms 54 abuse of power 56 accessibility 4, 8, 76–77, 79, 103, 116, 118, 122, 131, 174 accountability 171, 182 184 activism 55–56 adaptations 125, 152 advertising 68, 96–97, 101, 103 Aereo 172 AirBnB 52 airlines 2, 15, 37, 167 airwaves 91, 94–95, 100, 104, 165 algorithms 116, 174, 175, 177, 182 amateur 91, 93, 95, 98, 100, 143; music 102–103 Amazon 174–175, 179 Amazon Echo 174–175 Anderson, P 5 androids 178 Apple Computers 3, 117–118, 120, 122, 124–125, 174–175, 179 ARPA 115 artificial intelligence 173–178, 182, 191; behaviour 179, 183 artistic 115, 119 assisted reproductive therapy 46–47 Australia 23, 27, 37, 166–168 authors 60, 68, 72, 73, 77–78, 80, 81, 114, 170, 176, 182, 184 authorship 176, 184 automatable 20 automated 8, 67–69, 71 automation 67–69, 75, 84 automotive industry 6, 99, 128, 164 balance of rights 133, 160 bandwidths 91, 94 banking 14, 24–25, 37, 115 Barefoot, Jo Ann 151

Barlow, John Perry 49–50 Battelle 66 behaviour 13, 21–22, 24, 27–29, 32, 41, 43–52, 55–56; as incumbent 155; as signals 42 behavioural norms 143, 145–147, 150 Bell, Alexander Graham 9 Bell telephone 5 Benjamin, Louise 100 Bently, Lionel 27 Berne Convention 71–73, 85–86, 105, 115, 126 Bernstein, Gaia 47 Bowrey, Kathy 70 British Broadcasting Corporation (BBC) 94–96, 98–99, 105 broadcast radio 142–143, 150, 152, 190; see also Chapter 5 broadcasters 91, 93–101, 105–106, 143, 150, 152, 167, 190 broadcasting 60, 73–74, 142, 147, 149–150, 190; see also Chapter 5 Burgelman, Robert 5 business management 2, 5, 31 Business managers 3, 11, 12, 31, 32, 43, 141, 146, 153, 159, 160, 163 Cablevision 167–168, 172 Canada 73 Canadian Radio Commission 105 Canon 77 Carlson, Chester 66–67, 75–76, 83, 87 cautious management 32, 73, 142, 153, 191 CDPA 131 Christensen, Clayton 1–8, 11–16, 25, 31, 89, 121, 148, 153–154, 159 Christensen effect 6 Civil Rights Act 1967 28 clones 122–123 cloud 19, 113, 167, 172

220 Index commercialisation 19, 67, 97–98, 103–104, 121 communities 40, 102, 115, 121, 132 competencies 15 competition,18, 76, 94, 98, 105, 123, 152, 164, 166–167 composers 60, 99 computer industry 121–122, 128, 131 computer programs 26–27, 57, 172, 174–175, 183, 191; clones 123; see also Chapter 6 conflict 41, 47–52, 57, 172–173, 177–178; norms 48–49; norms and laws 50–51; norms and values 49–50; with computers 117, 121, 124–126, 129–130; with copyright 82; with regulation 144, 146–148, 151, 153–154, 156–157, 159–160, 163 CONTU 120, 125 Coolidge Calvin 100 cooperation 48, 100, 106, 116, 164 copy culture 79–80 copycats 121 Copyflo 67 copyleft 130, 132 Copyright Directive, The 29, 172–173 copyright enforcement 29, 51, 55–56, 127–128, 132, 146–147, 161; and computer programs 127–128, 132, 143; norms 44, 51, 55–56, 146–147, 177, 191–192 copyright holders see rights holders copyright maximalist 126–127, 133 Copyright Office, The 12, 71, 78, 80, 82, 173 copyrightability 125–126 corporations 66, 97, 122, 125, 143, 176 creative 31, 36, 98, 116, 121, 127, 130–131, 147, 166, 176, 182, 189 Creative Commons 121, 130–131, 147 creative destruction 22–25 creativity 59, 116, 119, 168 Crosley, Powell 92–93 Culture 30, 42, 45 70; and technology 141; incumbent 30; internet 133; legal 30; photocopy 79–80; radio 98, 142; remix culture 191 cyberspace 59 databases 8, 17, 182 definition: disruptive 4–7, 13, 43; ­programs 114–115, 125; telegraph 10

democratisation 98, 142 demographics 45–47, 57, 154, 161, 190, 192 desktop photocopiers 76 desktop publishing 145 diffusion 43, 96, 102, 142, 164 digital formats 81, 102, digital photography 145 digitisation 14, 181 disincentives 45 disruptive innovation: definition 4–7, 13, 43 disruptive technology see disruptive innovation DMCA 12, 177 DNA 15, 165 DVR 172 Early adoption 46 eBay 5 economic balance 131, 151–152, 162, 189–191 education 2, 21; legal education 7 Electrofax 67 electrophotography 66–67 entertainment 97, 102–103, 142 entrepreneurs 91 ethical 46, 49–50, 178, 182 Europe 93, 127, 168 European Union 184 Facebook 17, 170–171 filesharing 47, 50–51 financial marketing 2 financial services 24–25 firearms 54 Firm destruction 12–13 Fleischmann 168 Ford Model T 6, 92 Free Software Movement 124–125, 130, 131 Freeware 133 Friedman, Lawrence M 50 FTC 79 gatekeeper 46–47, 56, 132, 171–172, 177, 180–184, 190–192; and photocopying 93, 95, 99–100, 106; and regulation 150, 152, 157, 161–162; and xerography 69 Gates, Bill 116

Index 221 General Electric 100–101 General Public License (GPL) 130 genericide 64 Geneva Protocol of 1925 28 Gentleman’s Agreement, The 69–70, 78, 143 GNU 130 Google 56, 170–171, 174–175, 181 Gowers Report, The 51 gramophone 102, 189 grassroots movement 55–56, 92, 95 Great Depression 102

liability 91, 100, 171–173, 182–184 libraries 69–70, 73–74, 77–78, 80, 84–85, 87–88, 117, 121, 149 licensing 94, 96, 101, 105, 120, 124, 131, 142, 152, 162 lifecycle 156, 174 Linux 130 Litman, Jessica 31 lookalike legal arguments 52 lookalike technology 10, 11–12, 158, 172 Lord Chorley 73, 85–86, 166 Lord McIntosh of Haringey 127–128

hacker 125, 147 Haloid 66–67, 75 Harding, Warren 100 hardware 113, 121–123 Hargreaves Report, The 51, 141 Hasselbalch, Jacob 6 Hertz, Heinrich Rudolf 90 hobbyist 96–97, 115–117, 122, 124–125 home entertainment 102 Hoover, Herbert 93, 100–101, 105, 150, 156

Marconi, Guglielmo 90, 94 market: disruption 11, 43; failure 27; norms 43; overserved 11; regulation 43; values 24–25 markets 22, 24–26, 41, 46, 116–118, 123, 128, 151, 155, 160, 162–163; and disruption 1–6, 9, 11, 43 masterless copying 76 McAdams, Richard H 48 McMullen, E 50 media 51–55, 95, 98, 170, 191, 193 microprocessor 122 Microsoft 120–123 mimeograph 65, 83 minicomputers 5, 117–118 mobile devices 169 monopoly 115, 120; in broadcasting 95, 99; rents 22, 104, 152; telegraphic 10 Moore, Robert 50 morality 49 morals 49–50 music 14, 90, 98–99, 102–103, 145, 152, 176, 189–190

IBM 75 immoral behaviour 49 infringement 46, 50, 59, 71, 73, 78, 85, 171, 176, 181; and computers 152–155, 161–162, 166; and radio 100, 105–106; online 12, 51 innovation (non-disruptive) 5, 26 Intel 6, 122–123 interlibrary 78 Interstate Commerce Commission 91, 101 ionography 77 iPhone 3, 15 judiciary 27, 161, 192 Kellog, Frank 101 language 41–42, 71–72 laptops 8 Latour, Bruno 21, 26 Law reform 1, 9–12, 26, 29–30, 34, 132, 145, 189 lawyer 8–9, 13, 31, 34–35, 39, 52, 105, 131 Lemley, Mark 189 Lessig, Lawrence 41, 130–131

Napster 7 NASA 123 newspaper 27, 73, 98, 103 norm backlash 51, 124, 146–147, 158–160, 192 norm conflict see conflict norm psychological norm 22, 50 norms and regulation 44 online service providers 171, 173 patents 7, 66, 92, 115 Paypal 25 Peer-to-Peer networking 2, 7, 22, 47, 50, 141, 147,

222 Index performance parameters 3, 141; changing parameters 174, 189; computers 122, 133; radio 95–96; regulating disruptive innovations 153, 157–158, 160–161, 174 personal computer 113–118, 120–124, 126, 128, 131–132 petition 27, 56 photocopier 64–65, 72, 74, 80, 83, 157 photocopy norms 67–69 photocopy see xerography photoduplication 70, 77–78, 80, 81, 84, 166 photography 64–65, 75–77, 80, 145, 189 Photostat 64–65, 67–68, 74, 76–77, 84 physiological needs 20–21 PIPA 55–56 piracy 95, 127–128, 144, 149–150, 152, 156, 159, 161–162, 172–173 platform: computer platform 116–117, 124; neutral platform 177, 182; online platforms 46, 171–172, 175 policymakers 53, 105, 144 Pony Express 23 Posner, Eric 42, 48 Post Office, The 94 Postmaster General, The 10, 94–95, 142, 150 predictive coding 8 privacy 9, 155, 170, 177, 179, 182 programming 115–117, 119–127, 129–133, 143–144, 147; coding, 124; programming norms 120 programming community 115–116, 121, 123–124 programs see computer programs protests 55–56, 146 public performance 99–100, 105 publication: for copyright purposes 73, 115 Radical innovations 173 Radio Conferences, The 100–101 Radio Corporation of America 100; as RCA 67, 92, 101, 104 Radio: diffusion 96; HAM radio 89; Harko 92; regulation 94–95, 100–101; technology 89–90; see also Chapter 5 Rectigraph 64–65, 67–68, 76–77 regulation early 159–160 regulation late 160–161

regulators 44, 50, 51–52, 54–55, 57, 149–151, 156–158, 160, 162–163 research and development 2 Resolution on Civil Law Rules on Robotics 178, 183 rights holders 47–50, 69–70, 81–82, 151–152, 154–155, 160–162, 170–173, 176–177, 181–183, 191–193 robotics 175, 178, 182, 183 Roosevelt, Franklin Delanore 98, 103 royalties 104 Schumpeter, Joseph 22, 24 Scott, Peter 104 Siri 174–175, 179 smartphone 3, 8, 29, 146 Snapchat 170 social change 27 social media 170–171 social needs 20, 22–30, 133, 142, 145, 148, 153–154, 158–160, 163 social norms 21–27, 29–30, 35, 41–57; and xerography 67, 74–75, 81–82; as signals 42; conflict 41; shifting/changing norms 27, 42 social program 26–27 social values 26–28, 44–45, 49–50, 130; shifting 12, 23–24 societal needs see social needs societal values see social values software 8, 38, 113–132, 144, 150, 164–166, 189 SOPA 40, 55–56 stakeholders 70, 156, 173 Stallman, Richard 116, 125, 132 standardisation 124, 126 standardised 4, 117 streaming services 145, 172 Stubblefield, Nathan 90 Sunstein, Cass R 48, 51 surveillance 125 Susskind, Richard 8 sustaining innovation 2–3, 5, 31, 66, 96, 169 technology (non-disruptive): adoption 34; technology neutral 12 telecommunications 9, 18, 36 telegram 10, 24, 39 telegraph 10, 23–24, 27, 33, 60, 90, 94, 100

Index 223 telegraphy 17, 24, 89, 91, 94 telephone 5, 9–10, 23–24, 31–33, 89–91, 100, 102, 150; mobile 9; telephony 5, 89–90 television 71, 166 Trademark 64, 71, 83 Tushman, ML 5 Tyler, Tom R. 51 UNICEF 21 UNIX 117 unlicensed 96, 105 unregulated 93 Uretsky, Mike 118, 121 Verifax 67 video 127–128, 133, 176 Viscount Colville of Culross 127, 168 VisiCalc 118, 122 Walkup, Lewis 66 Walmart 5 water technology 21

weapons 38, 54 websites 12, 25, 56, 171–172 Wells, Orson 98 Western Union 31 Westinghouse 97, 100 White, Wallace 101 White-Smith doctrine 119 Whitford Committee 113, 119–120, 126, 133, 166–167 Wikipedia 56 WIPO 115 wireless 5, 89–91, 93–95, 98; telephone 90–91 xerography 57, 132–133, 141–143, 145, 149, 152, 154, 156–157, 162, 169; ­h istory 64–67; see also Chapter 4 xeroradiography 77 Xerox 64, 66–68, 74–79, 82–83, 86–88, 165 YouTube 176–177; ContentID 176–177