Specifically true for new innovations.
Reid 19 – Associate Professor at the University of North Carolina School of Law, PhD from the University of Florida College of Journalism and Communications, J.D. from the University of Florida College of Law.
Amanda Reid, “Copyright Policy as Catalyst and Barrier to Innovation and Free Expression,” Catholic University Law Review, 03-07-2019, https://scholarship.law.edu/cgi/viewcontent.cgi?article=3485&context=lawreview
Notwithstanding future-proof aspirations, copyright’s expansion is ill-fit for current use and potential future technology. It has proven hard to anticipate and keep up with future technology.70 Mark Twain could hardly have envisioned ebooks, and our Congress is at a similar disadvantage.71 Anticipating the future value of innovations is notoriously difficult.72 Technological innovation injects “unknown unknowns” into the calculus.73 One of the shortcomings of attempting to future-proof is, as Brad Greenberg noted, that “we cannot predict whether applying a law to a new technology will promote—or undermine—the law’s policy goals.”74
Another shortcoming of attempting to future-proof is that modern copyright is built around existing technologies and implicitly discriminates against new technologies.75 By allowing incumbents to dictate copyright policy, Congress has entrenched a preference for extant technologies. This bias for current technologies is reflected in copyright’s technology-specific exemptions, like compulsory licenses for cable retransmissions,76 jukeboxes,77 mechanical reproductions of musical works,78 and qualifying webcasters.79 Far from being neutral, bias is baked into our technology, as well as our copyright policy.80
Our copyright policy has enabled technology entrenchment, which ensures incumbent distributors maintain dominance.81 This bias is manifest and forced into relief after the emergence of a paradigm-shifting innovation.82 But the emergence of a paradigm-shifting innovation can be thwarted by the threat of a copyright lawsuit. Litigation risks entrench incumbents by hampering new innovations and legitimate uses of copyrighted works.83 New technology challenges conventional understandings of what it means to reproduce or distribute a work. But uncertain application of copyright law has deterred socially beneficial innovations.84
Copyright lawsuits are powerful deterrents, in part, because of the risk and uncertainty of statutory damages. Current copyright law entitles a rightsholder to recover both actual damages and any additional profits of the infringer.85 Or, in lieu of actual damages and profits, a copyright owner may elect to recover statutory damages.86 A plaintiff may elect statutory damages in lieu of actual damages at any time before the final judgment is delivered.87 Thus, at trial, a plaintiff has the option to prove actual damages or to skirt this burden and seek an amount within a statutory range.88