Latest Issue: Volume 17, Issue 2

On the JTIP Blog: Managing Legal Innovation

By: Justin Chae

THE COST OF COERCION: IS THERE A PLACE FOR “HARD” INTERVENTIONS IN COPYRIGHT LAW?

By: Yifat Nahmias | March 5, 2020

The contractual relationship between author and intermediary—be it a producer, publisher, or anyone facilitating the commercial exploitation of the author’s copyrighted works—is often viewed as an unequal one. Other than a minority of superstars, the vast majority of authors are forced to accept contractual terms dictated by their powerful counterparties. This outcome is perceived by many scholars and policymakers as undesirable. Thus, in an effort to protect the authors’ wellbeing in their contractual dealings, legislatures from around the world are increasingly keen to adopt regulatory measures that limit the menu of options the parties can adopt contractually. Specifically, these instruments endeavor to offset author’s weak bargaining position either by ensuring a minimum level of remuneration to authors’ ex-ante or providing them with an inalienable right to ask for a modification of the com-sensation stipulated in the contract ex-post or by granting them an inalienable right to regain control of their previously transferred rights. Overall, these legislative interventions are seemingly based on the assumption that regulating author-intermediary transactions ex ante and ex post will invariably improve the financial situation of authors as a whole. This assumption is mistaken. Drawing on insights from neoclassical and behavioral economics, the benefits and drawbacks of these interventions are narrated throughout this paper. It is further demonstrated that while these legislative interventions were adopted with the best possible intentions, they ultimately prove ineffective in meeting their own objective of securing authors a more favorable distribution of wealth. In fact, they occasionally harm the very group of beneficiaries they were designed to help. Particularly, the different forms of interventions into the author-intermediary contractual relationships create an inter-author redistribution of wealth and redistribution over time, which largely harm the most vulnerable groups of authors. These findings illustrate the limitations of the current legislative interventions that were designed to strengthen the position of authors vis-àvis their counterparties and emphasize that the structural disparities in bargaining powers cannot be easily remedied by legal intervention alone.

SUSTAINABLE AND UNCHALLENGED ALGORITHMIC TACIT COLLUSION

By: Ariel Ezrachi and Maurice E. Stucke | March 5, 2020

Algorithmic collusion has the potential to transform future markets, leading to higher prices and consumer harm. And yet, algorithmic collusion may remain undetected and unchallenged, in particular, when it is used to facilitate conscious parallelism. The risks posed by such undetected collusion have been debated within antitrust circles in Europe, the US, and beyond. Some economists, however, downplay algorithmic tacit collusion as unlikely, if not impossible. “Keep calm and carry on,” they argue, as future prices will remain competitive. This paper explores the rise of algorithmic tacit collusion and responds to those who downplay it, by pointing to new emerging evidence and the gap between law and this particular economic theory. We explain why algorithmic tacit collusion is not only possible but warrants the increasing concerns of many enforcers.

DATA SECURITY IN A GLOBAL ECONOMY

By: John Butz | March 5, 2020

This note examines the privacy and data security regimes in three distinct systems: that of the United States, the European Union and in India. The strengths and deficiencies of these three systems are analyzed and used as a foundation for imagining and articulating the importance of a global data privacy regime. The note argues that the nature of data protection requires a global system that balances the values of these three different systems. Despite the challenges of international cooperation and the different priorities that each of these areas has regarding data security, an international system would be beneficial compared to the current differing systems.

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Managing Legal Innovation

March 2, 2020

Innovation is a process that can be learned, practiced, and mastered. Applying Everette Rogers’s Diffusion of Innovations Theory to solve problems in the American legal industry may hold the key to addressing critical issues such as access to justice and overwhelming legal complexity. This post explores diffusion theory from a student’s perspective and through an […]