How Copyright Makes Books and Music Disappear (and How Secondary Liability Rules Help Resurrect Old Songs)

Abstract

A random sample of new books for sale on Amazon.com shows three times more books initially published in the 1850’s are for sale than new books from the 1950’s. Why? This paper presents new data on how copyright seems to make works disappear. First, a random sample of 2300 new books for sale on Amazon.com is analyzed along with a random sample of 2000 songs available on new DVD’s. Copyright status correlates highly with absence from the Amazon shelf. Together with publishing business models, copyright law seems to stifle distribution and access. On page 15, a newly updated version of a now well-known chart tells this story most vividly. Second, the availability on YouTube of songs that reached number one on the U.S., French, and Brazilian pop charts from 1930-60 is analyzed in terms of the identity of the uploader, type of upload, number of views, date of upload, and monetization status. An analysis of the data demonstrates that the DMCA safe harbor system as applied to YouTube helps maintain some level of access to old songs by allowing those possessing copies (primarily infringers) to communicate relatively costlessly with copyright owners to satisfy the market of potential listeners.