In this essay, I revisit my 2001 article, The Death of Copyright, for the Franklin Pierce Center for Intellectual Property’s Redux Conference. In The Death of Copyright, I worried that copyright, as a law that serves “to promote the Progress of Science,” had died. Instead, with the enactment of the Digital Millennium Copyright Act, I feared that copyright had returned to a system of guild privileges that served only to maximize the rents of copyright owners. At the time I wrote the article, file sharing had just begun. Yet, the content industries were already proclaiming that the sky was falling. In their view, file sharing would destroy the incentives necessary to author and distribute high quality works of authorship. In The Death of Copyright, I carefully explained why that was not true. Although file sharing might reduce revenue, I argued that it would not reduce creative output. In revisiting that article today, I am proud to say that I was right. Using evidence from the U.S. recording industry that I have gathered and presented in my recently published book, Copyright’s Excess: Money and Music in the U.S. Recording Industry, I show that in the recording industry over the last fifty years, more money for copyright owners has meant less music. Rather than provide an incentive for more works at the margins, a strong and effective sound recording copyright overpaid our non-marginal superstars. It overpaid them to such an extent that they worked less. As a result, strong and effective copyright did not increase creative output. It reduced it. Copyright, in the sense of a law that serves a public, rather than merely a private, interest has been lost.
The Law Review of the Franklin Pierce Center for Intellectual Property
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