“To Promote the Progress of Science and Useful Arts”: A Quantitative Analysis of the DMCA

Abstract

As one of Congress’ first attempts to adapt copyright law to the digital age, the DMCA stands as a law fundamental to the future of American copyright. As such, it is vitally importance to know if the DMCA has positively contributed to a legal structure that serves to secure the continued creation of art and culture – or if it has been a misstep in enforcing copyright over the new digital medium. This paper aims to contribute both theoretical and quantitative analysis to the ongoing debate over the DMCA and the future of copyright in an increasingly digitized world. First, this thesis uses an analysis of legal and economic copyright theory to highlight how DMCA serves to implement a strict enforcement of copyright law that emphasizes the rights of content producers over content consumers. Next, we conduct a quantitative analysis of the DMCA that demonstrates an association between strict copyright-enforcing laws like the DMCA and a lower-thanexpected output of art, information, and content. Our analysis demonstrates that the DMCA has either failed to increase appropriability in the information industry at a greater rate than cost to the industry, or that the law suffers from a fundamental misunderstanding of the composition of the content industry, leading the law to benefit a select few firms while the industry as a whole suffers. Under either explanation of the data, the DMCA is associated with an underperformance of the information industry as a whole, and is strongly associated with an underperformance of the publishing, software, recording, and film industries in particular.