Technology Policy and Its Discontents

Despite the blizzard of commentary, there remains a dearth of discussion about the implications of Grokster for the institutions that make technology policy.  In particular, along with Brand X, Grokster offers important lessons about to what extent (1) agencies; (2) courts; and (3) Congress develop technology policy.

With respect to Jim's preference for a congressionally authorized mandate for broadband policy (and network neutrality-type regulation in particular), my response--illustrated well in copyright legislation--is to be careful what you wish for.  Congress, at least of late, has shown an unfortunate tendency to legislate with specificity, declining to entrust courts or agencies to develop policy based on broad standards.  With respect to the 1996 Telecom Act, this tendency even rivals some of the recent copyright laws, although the relatively balanced forces led to internally inconsistent provisions--as opposed to wins for Hollywood (think the Copyright Term Extension Act).

The alternative to legislation may well be a common law-type regime, which is exactly what Justice Souter's majority opinion suggested on its "inducement" standard and what, in effect, Brand X endorsed with its encouraging language about Title I authority.  This warrant for courts and agencies to develop policy based on broad standards is far superior to what Congress would develop if it descended into the details of technology policymaking (at least if the past is prologue). 

Finally, the Grokster Court's willingness to evaluate technology design as relevant to the inquiry reflects one side of a continuing argument among judges and commentators.  Justice Breyer's concurrence invoked this concern in noting the benefits of the Ninth Circuit's take on Sony and, to be sure, a "plausibility" standard would keep courts out of evaluating technology design.  But such a goal is a doubled-edge sword, as such arguments aid Microsoft and other antitrust defendants who will use such reasoning to argue that decisions about network architecture should be immune from antitrust review.  I share the concerns noted by Judge Posner in his Antitrust in the New Economy piece about the ability of courts to make such judgments, but the potential for abuse by dominant firms who deny interoperability is just too great to provide a safe harbor based on plausibly valid conduct.