Document Type

Article

Publication Date

2026

Abstract

Over the last decade, a spate of high-profile copyright infringement lawsuits rattled the music industry. Controversy followed in the wake of multi-million-dollar damages awards, with criticism emanating from courts, scholars, and musicians alike. The basic logic of the critique is sound: the specter of such massive liability for small and inadvertent similarities disincentivizes the creation of new music. But the disincentive effect remains curiously under-theorized. This Article develops the literature’s first nuanced account of this disincentive theory, drawing on analysis of hundreds of copyright dockets as well as interviews with musicians to show that the feared disincentive has not come to pass.

In doing so, this Article makes several contributions to the copyright literature. First, it provides a necessary deconstruction and explication of the disincentive theory currently lacking in the literature. Second, it brings to bear substantial new evidence on the state of infringement litigation in the music industry, going well beyond the small handful of widely reported jury trials. Specifically, this Article analyzes an original dataset culled from the dockets of hundreds of infringement actions, supplemented by interviews with musicians, to assess whether high-profile litigation translates into disincentives across the field. Both lines of inquiry show that disputes take place only at the highest end of the market. Third, it extrapolates from both theory and evidence to shed new light on both the feared disincentive effect and responsive policy prescriptions. Theoretically, the absence of a disincentive effect permits further consideration of the goals and effects of the infringement remedy. This Article posits that infringement litigation might serve beneficial distributive ends and develops a limitation on damages in certain cases to mitigate the rise of financialization and opportunistic suits in the music industry.

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