ABSTRACT
Peer-to-peer file sharing in the early 2000s destabilized traditional content markets and associated business models that rely on preserving control over the use of creative assets. Academics and other commentators widely argued that robust forms of intellectual property rights had been rendered largely obsolete in a digital environment of low production and distribution costs. Reflecting this view, courts expanded the fair use doctrine and generously applied safe harbors under the Digital Millenium Copyright Act, which largely immunized platforms against liability for user infringement and consistently favored content aggregators over originators. The subsequent evolution of digital markets nonetheless shows that exclusivity protections remain critical to sustaining an independently viable content economy that does not rely on philanthropic or governmental patronage. Streaming services in audio, video, and literary media restored revenue flows to content originators through contractual and technological complements to copyright protection, while content segments (notably, the news industry) that failed to deploy such mechanisms struggled economically. Contrary to prevailing views, meaningful property rights and other exclusivity protections remain essential for sustaining the production, financing, and development of creative assets in digital environments and, together with technological and contractual complements, are likely to retain this role in supporting a robust flow of original content for the artificial intelligence ecosystem.
Barnett, Jonathan, The Free Content Illusion (August 27, 2025), Journal of Intellectual Property Law (2026); USC CLASS Research Paper No 2518.
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