Copyright and the Perfect Curve

Abstract

This essay argues that the assumption that "progress" is qualitatively independent of the underlying copyright entitlement structure is wrong. In particular, it argues that a shift to a copyright rule structure based on highly granular, contractually enforced "price discrimination" would work a fundamental shift, as well, in the nature of the progress produced. The critique of the contractual price discrimination model, moreover, exposes deep defects in the use of classical "law and economic" methodology to solve problems relating to the incentive structure of copyright law. What is needed, instead, is an economic model of copyright that acknowledges the central role of unpredictability in the creative process.