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The Innovator's Legal Dilemma

In The Innovator's Dilemma, Clayton Christensen explained why it is so difficult for large, successful companies to innovate and grow new businesses. Professor Christensen's insightful analysis is no longer controversial.  We understand why a large computer company like IBM needed to separate and ring-fence its entry into the personal computer market, and conversely, why so few of the great mini-computer makers made it into the PC era. 
 
To this important piece of scholarship, I offer a minor corollary from the media world.  I am often asked why all the innovative services in media and entertainment originate in small companies rather than the established titans which have all the resources, including brand.  The principal answer to this question remains the classic Innovator's Dilemma.  However, I think one additional factor is at work in the content industries:  good legal departments.
 
When you think of innovations in the music industry like the original Napster or KaZaA or the phenomenal rise of YouTube, one understands why it is not Universal Music or NBC which blazes the trail.  In the content world, it must be admitted that a fair number of start-ups adopt a legal position that could be best described as "we will worry about copyright infringement when we are successful".  Indeed, that is precisely what is going on now as Google is regularizing YouTube's content relationships.
 
Since I practiced law for many years I offer this defense of my former colleagues:  Don't blame the lawyers for once.  If a product manager at NBC called upon the formidable GE legal department and presented a business plan that was based on ripping-off copyright until the service was so popular, fearful content owners would no longer complain, he would be laughed out of Fairfield. Big companies with stringent compliance policies and now Sarbanes Oxley controls to attest to are just not going to take these risks.  Nor should the junior product manager just not consult the lawyers for  fear that he will get the "wrong answer".
 
We must recognize that there are often legitimate structural reasons why most challenges to the established order come from outside the firm.  This is also not a bad thing as it quite naturally serves as a check on the dominance of large organizations -- perhaps far more effectively than antitrust policy.
Published Saturday, February 23, 2008 6:02 PM by Tom Glocer

Comments

 

Yazzara said:

Tom, someone directed me to check out your blog the other day and I've just spent an hour or so on it and I love it. Truly authentic. As a professional editor, I suspect no one is getting in between your voice and your readers. Bravo!

But I have to disagree with your premise above. Of course it's true in the case of copyrighted material, but that's not all there is. How could the big B2B media companies in the technology space, for instance, allow themselves to be disintermediated by citizen journalism? That certainly seems to be the case.

Reuters has a CEO who blogs and a correspondent in Second Life, for crissakes. Hardly typical.

Keep it up, and good luck.
March 2, 2008 10:03 PM
 

pennyherscher said:

Hi Tom,

I'm CEO of FirstRain, a private company providing search-driven research for the buy-side and companies. We wrestle with IP issues everyday because we categorize and generate reports based on "other people's content" from the web.

While we're very aggressive with respect to innovation and technology, we made a decision upfront to invest in retaining senior IP counsel and heeding them. Instead of "worrying about copyright infringement when we are successful," we have defined our success to include respecting IP and we believe this has helped--not hindered--our growth in the professional market and has strengthened our ability to partner with content providers. The web does change everything, but we think the real long-term leaders will have to demonstrate high integrity to excel.

Penny

March 5, 2008 2:27 AM
 

Dave Brady said:

Great post Tom - but don't the innovation opportunities of the large company normally outweigh those of the small company i.e. the chance to integrate diverse aspects of the large business to create new, innovate products or services and/or to have the resources to deliver significant service innovations?
March 13, 2008 10:55 PM
 

BillHarts said:

Smart managers at large companies try to forge good working relationships with their attorneys because they understand that having high quality legal advice can help them realize their goals.  Unfortunately, many managers just look to their lawyers to, "keep me out of trouble" with regulators, auditors and other lawyers.  This attitude sometimes leads to product development paralysis since one can almost always find a legal reason to not do something.

If the Napster founder had been working for GE I would like to think that their lawyers wouldn't have laughed him out of Fairfield but instead would have said, "Interesting idea but instead of just taking content that doesn't belong to us why don't we contact the lawyers for Sony, BMG, Time Warner and the other record companies and try to forge a consensus where we could act as the electronic distribution arm for all their music?"  And that would have led to GE developing iTunes and probably the iPod and the rest would be history.

My feeling is that big companies do not stifle creativity per se, but that creative ideas often get lost because of the inability of their proponents to move them through the organization.
March 18, 2008 4:31 PM
 

Roberto said:

Hi Tom, great post and Blog! I agree 100% that the founders of YouTube took a gamble but I don't think that it would be fair to say that the YouTube's success was due *only* to the fact that they made copyright-protected content available on their site. That is part of the reason, of course.

The other reason is that they created superior technology that solved a real problem. Their technology breakthrough created a seamless, cross-platform standard that became ubiquitous with video sharing on the web. I am simplifying, of course, to make a point.

To follow the logic in your post, had Chad Hurley and Steve Chen worked for GE (or Reuters for that matter) and had presented the idea for this technological breakthrough to their respective bosses, I don't see how they could have been turned down.

The question in your post, however, can be related to innovations that are unrelated to copyright issues.

I suspect that the reason why a great number of innovations come from small companies has to do with the people working in them. An "entrepreneur" is often fired up with an idea and will work to bring *their baby* to reality fueled by "gut feeling". In a large corporation the same person would need to "prove" that the idea makes economic sense, fill forms, go to committees, etc.

In short, I propose that fear of failure is a major deterrent to innovation among large corporations.
March 28, 2008 5:41 PM
 

davidsven said:

I prefer to describe their legal position as:

"I drink your milkshake." - Daniel Plainview.
May 23, 2008 6:07 PM
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