ABSTRACT

Is it immoral or illegal to download copyrighted materials off the internet without paying? This question was new when such widespread copying suddenly became available in the late 1990s with a combination of broadband internet in college dorms and facilitating websites like Napster. The music industry made a lot of noise about theft, but the core of their proposition was the entirely plausible economic argument that widespread downloading would put them out of business—particularly since the most downloaded songs were also the ones with the greatest revenue, and that the record labels required the revenue from popular songs to offset their losses on investment in more adventurous and creative, but less remunerative, artists. This hints at something more fundamental: copyright exists to promote the creation and dissemination of creative work. Does the law actually do that? Does it do so was well as it should? The music industry essentially provided one model of how copyright might work, serving as a middleman between artists and their fans. This middleman was necessary because artists lacked the ability to effectively produce (from studio time to equipment to the act of making CDs, production was very expensive) or disseminate (on radio or at music stores) their work. The internet doesn’t necessarily discredit this model, but it does force us to notice that this mass-production model of intellectual goods is one of many possible models, and so it forces us to address the fundamental question of how we understand creativity, and how that understanding should be reflected in law. That question is not one that we as a society have been able to answer.