From Edison to the broadcast flag: Mechanisms of consent and refusal and the propertization of...

IMAGE FORMULA 3

Rules of consent to, and refusal of, use have loomed large for copyrighted works over the last century. In some cases of product innovation, the rules of use do concern copyrighted works, but the fact that

the control is exercised over a copyrighted work is merely a happenstance, a fluke of the nature of the product innovation. So patent holders over phonographs try to limit which music cylinders can be played1 and film projector manufacturers do the same with movies,2 just as A.B. Dick tried to limit the ink that could be used with its mimeograph machines.3 These are typically cases of price discrimination - an effort to charge different users different prices depending on intensity of use - and the control over the good is just a crude approach to measuring how much the consumer values the relevant technology. This type of price discrimination can be socially helpful or harmful.

In other cases, the limits are more directly strategic, as when record companies sought to bar play of records on radio. How radio influences purchasing decisions for recorded media - LPs and 45s, later 8-tracks and cassettes, and now CDs - was and is hotly disputed, but the record companies have routinely sought to limit how radio stations could use "records." These limits can be most naturally understood as a form of raising rivals' costs, as a way of making it more expensive for radio to compete with the record companies. These disputes continue today with the emergence of webcasting: "radio" stations that play music over the internet rather than over-the-air.4