The Creative Destruction of Copyright: Napster and the New Economics of Digital Technology

To determine whether sharing music over peer-to-peer networks such as Napster should be considered copyright infringement, we must first conclude that digital works are entitled to copyright protection. This Article argues against copyright protection for digital works because the economics of digital technology undercuts prior assumptions about the efficacy of a private property regime for information, a public good. Questioning the conventional wisdom that the two interests served by copyright, creation and public dissemination, are aligned, the Article reveals that the argument for copyright is primarily an argument for protecting content distributors in a world in which middlemen are obsolete. Copyright is no longer needed to encourage distribution because consumers themselves build and fund the distribution channels for digital content.

With respect to the creation of music, this Article argues that exclusive rights to reproduce and distribute copies provide little if any incentive for creation, and that digital technology makes it possible to compensate artists without control.