Improving Technology Neutrality Through Compulsory Licensing

Brad Greenberg’s article, Rethinking Technology Neutrality, challenges a fundamental premise of the current Copyright Act. The Act takes a technology neutral approach to defining the scope of copyright protection. Under the Act, old and new technologies should receive equal treatment with regard to copyright liability as a way to future-proof copyright law and prevent too-frequent revisions. While often lauded as good policy, Greenberg identifies several heretofore under-recognized problems with the technology neutrality approach. Much of Greenberg’s analysis is exactly right, although some errors attributed to technology neutrality are either caused by the lack of judicial fidelity to the approach or inherent in common law adjudication. All the same, in providing this taxonomy of technology neutrality’s problems, Greenberg makes a significant contribution to the literature of copyright law.

Given his concerns about technology neutrality, Greenberg proposes a new copyright act that would make the law more discriminating: this revised act would replace technology neutrality with a broad right to economic exploitation of a copyrighted work in a variety of specific technology categories. An administrative agency would determine whether new technology is sufficiently similar to specified categories to fall within the reach of the act. Greenberg’s statutory revisions would repair far less than he hopes. Administrators would struggle with the same problems that vex courts in this context, and it is not clear those administrators are better suited for the job. Nevertheless, the taxonomy of problems provides helpful signposts for courts wrestling with claims of technology-driven copyright infringement.

Greenberg’s reimagined copyright act would also remedy most infringement via new technologies with a compulsory license rather than injunctive relief. Greenberg proposes an agency administer the compulsory license and decide which new technologies are subject to it, a change that Congress is unlikely to embrace at this time. However, his proposal inspires a common law solution: under the current Copyright Act, a court could grant a compulsory license as an alternative to injunctive relief, at least in cases where a finding of no liability would leave real harm uncorrected, but granting an injunction might needlessly stifle innovation.