Seth Ericsson · September 2011
79 GEO. WASH. L. REV. 1783 (2011)
This Article attempts to pay homage to Justice Breyer’s seminal article, The Uneasy Case for Copyright, by exploring the effects of online music distribution (“OMD”), a phenomenon that may be seen as a relative approximation of a copyrightless environment, in order to gain valuable insight into the fundamental questions of copyright. Various OMD models have been developed based on the recognition that OMD is here to stay. Yet, given the relative lack of legislative guidance, the few judicial decisions to mark the outward boundary of the legally acceptable, and the general societal confusion (if not outright opposition) surrounding the law regulating enjoyment of digital content, creators of new OMD models and users of such models have been left to navigate the foggy waters of OMD without a compass. This lack of OMD policy—as part of a comprehensive copyright policy suitable for our digital world—has led to a pervasive copyright malaise felt by innovators, creators, users, industries, and institutions. The result of this uneasiness has been the suboptimal utilization of the Internet as a truly revolutionary means of incentivizing both digital music content creation and its dissemination. This Article argues that copyright should play an active role in promoting competition through the encouragement of widespread nonexclusive licensing; it also argues that institutional facilitation of copyright enforcement should be approximately inversely proportional to the amount of public access afforded to works by the licensing arrangements between the recorded music industry and online music distributors.
