In this essay, written for the 30th Anniversary of Cardozo’s Arts and Entertainment Law Journal, I revisit the ruinous litigation strategy copyright owners pursued after Napster to secure control of the market for personal uses of copyrighted works, which I wrote about ten years ago in War Stories, 20 Cardozo Arts & Ent. L.J. 337 (2002). The litigation campaign had effects that copyright owners now have reason to regret. Medical experts tell us that powerful antibiotics are highly effective in killing off both good and bad bacteria, but at a significant risk. Bugs that survive the treatment grow bigger, stronger, and resistant to antibiotics. They become much more dangerous because they are harder to kill. Copyright owners’ indiscriminate litigation against new entrants into the entertainment and information marketplace killed off a broad swath of potential competitors and partners. The ones who were left faced a less crowded field because old media had helpfully cleared it for them. The scorched-earth litigation strategy temporarily cleared the field, and made room both for tepid, content-industry-controlled efforts to distribute music, books, and video online, and for new entrants with the stamina and resources to survive copyright infringement suits. Apple, Amazon, and Google took advantage of that environment to grow into dominant distributors who are obligatory partners for any serious online content distribution plan, and who insist on calling the shots on price, format, and other matters that content owners believe should rightfully be under their own control.
Jonathan Levin: 2011 John Bates Clark Medalist