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Abstract:
The growth and development of a major Japanese export - comics and related products, including animated cartoons and so-called "character goods" such as trading cards, lunchboxes, etc. - has occurred simultaneously with the development of very large, openly-held markets for what would appear to be books and products that infringe copyrightholders' interest in these well-known characters. While many infringers are judgment-proof small timers, those who operate the markets and bookstores that trade these wares are often for-profit and even publicly-traded corporations. Although actions for both infringement and contributory infringement are clearly winnable under existing Japanese law, up until now they have been rare. It appears that for a variety of reasons - such as reputational consequences and relatively low (reasonable royalty) damage awards - it is not economically rational to bring these suits. Interestingly, many observers believe that the vibrancy of these markets for infringement has created numerous innovations and fostered the emergence of talented artists who have benefitted the industry as a whole. The relatively weak legal regime in Japan, noted widely elsewhere, appears to have by chance solved a collective action problem and prevented the interests of a few copyrightholders from inhibiting the growth and development of the industry as a whole.

Japan, copyright, comics, manga, dojinshi, damages, infringement, collective action

Abstract:
Professional sports leagues enjoy a unique justification in defending their seemingly anticompetitive practices under the antitrust laws: They allegedly need to maintain competitive balance. According to the argument, sports leagues need to do anticompetitive things to enhance their competitive standing vis-a-vis other sports leagues or other forms of entertainment. The argument is on the leading side of a circuit split, with only the D.C. Circuit rejecting it. Additionally, sports leagues have been adept at getting this argument into public discourse and legislative consideration.

This Article argues that antitrust should reject the competitive balance argument on its face. The competitive balance argument makes the assumptions that there can only be one championship competition per sports league, that leagues can and will engineer balance in that unique competition, and that fan interest is directly related to that singular competition. This Article draws on comparative data and recent economic research to conclude that each of these assumptions is wrong and that judicial endorsement of the competitive balance argument may simply be an aesthetic preference without empirical support. Instead, a solution lies in reconceiving the league competition envisioned by the competitive balance argument. In particular, a sports league can be subject to several different "competing competitions" among its constituent teams; it could thus maintain fan interest even in the absence of competitive balance. This view draws support from the experience of the decade-old English Premier League and also helps to illuminate Major League Baseball's litigation attempting to expand its intellectual property rights to limit fantasy baseball league operators.

antitrust, sports, intellectual property, competitive balance, sports economics

Abstract:
How does large-scale social production coordinate individual behavior to produce public goods? Hardin (1968) denied that the creation of public goods absent markets or the State is possible. Benkler (2006), Shirky (2008), Zittrain (2008), and Lessig (2008) recently countered that the needed coordination might emerge though social norms. However, the means to this coordination is under-theorized.

Focusing on Wikipedia, we argue that the site’s dispute resolution process is an important force in promoting the public good it produces, i.e., a large number of relatively accurate public encyclopedia articles. We describe the development and shape of Wikipedia’s existing dispute resolution system. Further, we present a statistical analysis based on coding of over 250 arbitration opinions from Wikipedia’s arbitration system. The data show that Wiki-dispute resolution ignores the content of user disputes, instead focusing on user conduct. Based on fairly formalized arbitration findings, we find a high correlation between the conduct found and the remedies ordered. In effect, the system functions not so much to resolve disputes and make peace between conflicting users, but to weed out problematic users while weeding potentially productive users back in to participate.

Game theorists have modeled large scale social production as a solution to the herder problem/multi-player prisoner’s dilemma. But we demonstrate that the “weeding in” function reflects dynamics more accurately captured in coordination games instead. In this way, dispute resolution can provide a constitutive function for the community.

social production, social norms, law, dispute resolution, arbitration, empirical legal studies

Abstract:
This article sets forth two main points. First, it tries to explain why peer-to-peer (P2P) networks have led Japan and may lead the United States to choose criminal enforcement against contributory copyright infringement. While criminal enforcement existed in both societies prior to the popularization of P2P networks, it was rare and largely directed at direct infringers. Second, the article predicts that, while Japan and the United States may similarly bring to bear criminal law resources and norms to face the same challenge - contributory copyright infringement using P2P and related technologies - the results will likely to be significantly different. The social and legal contexts suggest that in the U.S. criminalization may buttress and perhaps complement and encourage more civil enforcement. But in Japan, administrative pronouncements and judicial decisions have diminished the usefulness of civil enforcement to rightsholders. As a result, Japanese criminalization may substitute for the development of an effective system of civil remedies to protect intellectual property.

Copyright, peer-to-peer, Japan, criminal, remedies

Abstract:
China's new Antimonopoly Law (AML) has been predominantly greeted with doubt about its practical enforceability. In particular, numerous commentators have questioned how the AML can effect change in the government-backed anticompetitive restraints that it targets. However, these doubts are in part the product of a kind of "antitrust functionalism," in which it is assumed that antitrust goals are uniform across nations and that mechanisms for enforcement must also be universal. We argue that China's plan for dealing with so-called "administrative monopolies," especially local and regional trade barriers, may have surprise successes. In part, the AML provides the possibility of an internal free trade agreement - albeit one with exit options closed. By creating a regulatory space for discussion on internal barriers, the AML could help foster a cooperative solution to the "prisoner's dilemma" of beggar-thy-neighbor local and regional government action. The potential dynamic could resemble the self-enforcing nature of international trade liberalization. Additionally, the AML can help spark a "competition culture" that may lead to greater consideration of the anticompetitive effects of government action at all levels, including the central government. That is not to say that the AML will be perfect; however, it could well be a significant step in the right direction.

China, antitrust, competition, trade, commerce, law and economics, international law, comparative law

Abstract:
It's an iPod world, and we just live in it. Or so goes the not-necessarily-unjustified hype. But with the benefits of technological change can come the cost of legal conflict. In particular, a sizeable literature has sprung up focused on the risks that Internet filesharing and digital copying pose for the copyright holders of the recording and film industries.

A number of prominent American law professors have endorsed the notion of a tax on digital recording and music filesharing - call it an "iPod tax" - with the proceeds to be paid into a fund. A clearinghouse representing rights holders would monitor which and how often works were downloaded, and perhaps, used. The clearinghouse would then use a formula to translate this data into a gauge of the relative popularity of musical works. Finally, the clearinghouse would divvy up the iPod tax revenues to the individual rightsholders. The clearinghouse approach addresses important concerns. On the one hand, it directly addresses the so-called "piracy" concerns of the recording and film industries. On the other hand, it creates clear legitimacy for users' noncommercial recording. In doing so, the clearinghouse proposals allow users to freely choose among competing content.

In fact, Japan has actually run a very similar system since the early days of digital recording in 1993. The Japanese system imposes a tax on recording media such as blank CDs and DVDs that consumers can use to engage in private home recording. That revenue is then split among copyright holders in the recording and film industries based on measures of the popularity of their works. Just as the American proposals come as a response to widespread Internet filesharing and unauthorized use, the Japanese system was born in the wake of a burgeoning CD rental industry that threatened recording industry coffers. But after a dozen years of experience, faced with the iPod and similar computer memory-based devices, the Japanese decided not to extend their system beyond blank CDs and DVDs to hard-disk based devices, cellphones and more. On the advice of a committee dominated by academics, especially law professors, the Japanese government stopped their digital recording media tax from morphing into an iPod tax.

This Article looks at the nature of the proposed American clearinghouse model, and compares it with that of the existing system in Japan. It focuses on how Japanese experts decided that regulatory failures merited killing an extension of their existing system to include a proposed iPod tax. In particular, the Article draws on the Japanese debate to propose a "friendly amendment" to structure an American clearinghouse as a user-owned cooperative to reduce the chances of repeating Japan's mistakes.

copyright, Japan, DRM

Abstract:
Increased international trade has focused attention on the question of who should be allowed to bring United States antitrust claims. As the distinctions between the "United States economy" and the "global economy" have waned, the problem of which international antitrust cases United States courts should hear has waxed. This Article applies a law-and-economics framework to the major arguments in this debate. In particular, this analysis shows how a broader view of subject matter jurisdiction in these cases not only achieves its own claims of superiority in terms of deterrence, but also might better realize the claimed advantage of the narrow view in reducing antitrust litigation. Under certain assumptions, "more" jurisdiction over international cases can lead to "less" litigation.

Antitrust, FTAIA, Sherman Act, jurisdiction, international trade

Abstract:
In the United States, criminal libel is, to paraphrase Ross Perot, the "crazy aunt we keep in the basement". American law professors write about it to denounce the continued existence of rarely enforced criminal libel statutes. In Japan, however, criminal libel laws have become vital tools in policing injurious speech on the Internet. Defamatory posts lead to police intervention and even arrest. Because the United States is considering regulation of online speech, including, potentially, criminal penalties, we can learn from the experience of Japan. From a positive perspective, this Article explains why Japan would apply such laws to the Internet. From a normative perspective, the Article addresses why criminal libel is not a good choice for Japan. Finally, from a comparative law perspective, this Article also discusses why criminalizing online libel would be an even worse choice for the United States than Japan.

Defamation, libel, cyberlaw, criminal, private ordering, social norms, Internet, police

Abstract:
Over the past decade, a national battle has raged over how much downstream control copyright holders should have over their products once they are sold to distributors, retailers and consumers. By and large, consumers seem to have won this battle as legal change and business innovation eroded downstream limits. Copyright holders have been unsuccessful in their attempts to roll back this erosion, and indeed have been further hampered by judges and antitrust enforcers who have bolstered the trend.

This nation is not the United States; it is Japan. Despite strenuous objections by authors and publishers, the expansion of what Japanese consumers can do with the copyrighted comics they buy threatens to reshape the $5 billion domestic industry. For Americans, the Japanese experience is instructive in several ways. Unlike the American debate regarding downstream controls, the Japanese battle has not involved actual or alleged illicit copying. Instead, it appears that gains from price discrimination are motivating authors and the publishing industry. Additionally, a change in transaction costs made possible by business innovation appears to have undercut the ability of publishers to tailor prices. Also of significant interest, the erosion in downstream control has coincided with stunning growth of the Japanese comic medium as a worldwide export, a notable contradiction to the common assertion of the U.S. copyright industry that stronger copyright protection must necessarily yield more creativity.

resale price maintenance (RPM), copyright, price discrimination, first sale, Japan, comics

Abstract:
Japan's Merger Guidlines issued in May 2004 (New Merger Guidelines) mark a turning point for antitrust in Japan. While Japan's New Merger Guidelines may resemble the U.S. Merger Guidelines in form, due to their context, the New Merger Guidelines will likely perform a different function. Unlike in the United States, the New Merger Guidelines in Japan are not a response to perceived overactive merger enforcement in the face of a merger boom. Instead, Japan's move appears to be part of a larger domestic plan of administrative law reform, together with domestic and external pressure to harmonize antitrust laws with the EU and United States. While the New Merger Guidelines may succeed in Japan, any success will of necessity be different than that of the U.S. Merger Guidelines.

antitrust, competition law, Japan, merger, guidelines

Abstract:
Since the early 1990s, the world has seen the establishment of comprehensive antitrust regimes in the Eastern European transitional economies, Latin America, China, and India. The growth of new and revitalized antitrust regimes around the world has focused attention on how to build effective and helpful competition law institutions. In many respects, this is a novel challenge because the need and impulse for antitrust had previously been associated with mature market economies. Technical assistance as currently supplied in the world predominantly takes the form of experts from senior antitrust institutions in developed countries making recommendations to new or newer antitrust regimes in emerging economies. Because of the incongruity of this fit, technical assistance may be aimed at the problems it seeks to find, rather than the most pressing problems. As this brief essay for an online symposium discusses, attention to the context of regulation and the nature of enforcement authority will be critical to effective technical assistance.

antitrust, competition, law, development, comparative law, international law