Hastings Communications and Entertainment Law Journal


Copyright law is constitutionally justifiable only to the extent that it provides incentives for creative effort by reducing the risk of free riding. Technological advances repeatedly have revolutionized the economics of music creation, production and distribution. The latest developments in recording, digital compression, e-commerce and file sharing technologies are only the latest in a long line of disruptive technological developments. These technologies reduce the risk of free riding, thereby justifying a narrowing of the scope of copyright protection for music. The paper carefully examines the elements of production and consumption functions for music, explaining how greatly reduced barriers to entry and new forms of advertising and distribution have made much of the existing infrastructure for production and distribution of popular music, represented by the major record labels, obsolete. Increased portability of music increases demand and reduces the barriers for Indie musicians to satisfy that demand. The result will be a shift of music consumption away from the major labels and towards previously undiscovered musicians. The article evaluates proposals for changes in the copyright regime and concludes that the best policy is to allow the interplay of new Web-based marketing techniques, litigation, and unlicensed file sharing to continue rather than adopting new legislation. This interplay is more likely to produce a new, reasonably efficient, equilibrium than legislative initiatives in a political context in which influence is skewed in favor of status-quo interests who resist new types of competition.