Author:Sag, Matthew

This Article explores the potential displacement of substantive copyright law in the increasingly important online environment. In 1998, Congress enacted a system of intermediary safe harbors as part of the Digital Millennium Copyright Act (DMCA). The internet safe harbors and the associated system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. More recently, private agreements between rightsholders and large commercial internet platforms have been made in the shadow of those safe harbors. These "DMCA-plus " agreements relate to automatic copyright filtering systems, such as YouTube's Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software.

The normative implications of these developments are contestable. Fair use and other axioms of copyright law still nominally apply online, but in practice, the safe harbors and private agreements made in the shadow of those safe harbors are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. Substantive copyright law is not necessarily irrelevant online, but its relevance is indirect and contingent. The attenuated relevance of substantive copyright law to online expression has benefits and costs that appear fundamentally incommensurable. Compared to the offline world, online platforms are typically more permissive of infringement, and more open to new and unexpected speech and new forms of cultural participation. However, speech on these platforms is also more vulnerable to overreaching claims by rightsholders. There is no easy metric for comparing the value of noninfringing expression enabled by the safe harbors to that which has been unjustifiably suppressed by misuse of the notice-and-takedown system. Likewise, the harm that copyright infringement does to rightsholders is not easy to calculate, nor is it easy to weigh against the many benefits of the safe harbors.

DMCA-plus agreements raise additional incommensurable potential costs and benefits. Automatic copyright enforcement systems have obvious advantages for both platforms and right-sholders: they may reduce the harm of copyright infringement; they may also allow platforms to he more hospitable to certain types of user content. However, automated enforcement systems may also place an undue burden on fair use and other forms of noninfringing speech. The design of copyright enforcement robots encodes a series of policy choices made by platforms and rightsholders and, as a result, subjects online speech and cultural participation to a new layer of private ordering and control. In the future, private interests, not public policy, will determine the conditions under which users get to participate in online platforms that adopt these systems. In a world where communication and expression is policed by copyright robots, the substantive content of copyright law matters only to the extent that those with power decide that it should matter.


The internet is deeply integrated into most of our lives: we connect with other people online, we build communities online, we are entertained and informed online, and, increasingly, we buy, sell, and work online. Yet vital aspects of the regulation of online expression owe far more to the policies and unilateral actions of private companies than to public policy.

For over 300 years, the law of copyright has struck a careful balance between rights and freedoms. Copyright law recognizes the need to incentivize authors by granting them a significant degree of control over the use of their works, but this control is far from absolute. Copyright law also recognizes that the public must retain some freedom to use existing works and to build upon them as the next generation of authors. (1) This balance is achieved by doctrines, such as the idea-expression distinction, the requirement of substantial similarity in copying, the fair use doctrine, and a host of other statutory and nonstatutory limitations and exceptions to the scope of copyright. (2) These doctrines help ensure that copyright law enables, rather than chills, creativity and freedom of expression. (3) However, in the online world, the balance struck by the traditional levers of copyright policy increasingly risks irrelevance. To a significant degree, the balance of copyright law has been overshadowed online by the system of intermediary safe harbors enacted as part of a general modernization of copyright under the Digital Millennium Copyright Act (DMCA) in 1998. Fair use and other axioms of copyright law still nominally apply online; but in practice, the safe harbors and private agreements made in the shadow of those safe harbors ("DMCA-plus" agreements) are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. To the extent that substantive copyright law remains relevant, that relevance is indirect and contingent.

Copyright law contains several balancing mechanisms. Copyright's idea-expression distinction gives authors exclusive rights in their expression, but it allows for facts, ideas, systems, and processes embedded within such expression to be freely copied. (4) Copyright law protects rightsholders from copying that is quantitatively and qualitatively significant, but trivial amounts of copying or any reproduction that lacks substantial similarity is noninfringing. (5) The fair use doctrine permits copying without permission in certain circumstances depending on the purpose, proportionality, and effect of that copying. (6) Fair use, in particular, plays a vital role in enabling creativity and freedom of expression because it "permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster." (7) In theory, through the application of these doctrines (and others), copyright law maintains a balance between rights and freedom. But as every lawyer knows, theory and practice often diverge: the mere fact that an action does or does not amount to copyright infringement is no guarantee that individuals and organizations in the chain of distribution will act accordingly. As such, it is important to consider what copyright law allows and restrains in practice; in other words, we must know the functional balance of copyright law.

The functional balance of copyright law is the difference between the stories people want to tell and those that copyright law in practice allows them to tell. Documentary filmmakers, for example, have a legal right to make fair use of existing works, but the threat of copyright infringement litigation may still have a chilling effect on their ability to exercise that right. (8) In the analog world (i.e., the offline world), decisions about who gets to speak in a particular medium and what they get to say are typically made not by authors, artists, or filmmakers, but by various gatekeepers, such as publishers, distributers, broadcasters, and insurance companies. These gatekeepers consult their own self-interest, including potential legal liability, and thus respond to their understanding of what copyright law allows and prohibits. In this world, boundary issues in copyright law tend to be settled by gladiatorial contests between representative interests. These contests are watched with interest and their results are amplified as they become part of the knowledge base of various gatekeepers and their legal advisors.

For example, the Supreme Court's ruling in Campbell v. Acuff-Rose that commercial parody can qualify as fair use (9) emboldened television networks to rely on fair use in comedy programs that lampoon current events, such as The Daily Show, Last Week Tonight, and @Midnight. (10) This is hardly a perfect system, but the salient feature to note is that it is a system in which decisions about which works are and are not made available through various distribution channels are linked to the substantive content of copyright law. Gatekeepers in the analog distribution chain may have an imperfect understanding of copyright law--they may be affected by risk aversion or other cognitive biases--but their understanding of the substantive law remains central to their decision-making process. (11) In short, although the true balance of copyright law and the functional balance of copyright law in traditional media environments are obviously not exactly aligned, they are intrinsically connected such that where the former moves, the latter follows. (12)

The relationship between substantive copyright law and the functional balance of copyright law is far more tenuous in the digital world of online communication. In the relatively early days of the commercial internet, Congress established a system of copyright infringement safe harbors with the aim of providing legal certainty for internet service providers (ISPs) and other online intermediaries; these safe harbors were also designed to give rightsholders an expeditious mechanism to address online infringement. (13) Under the DMCA safe harbors, companies that provide internet access and those that host and transmit content selected by their users are not liable when their users violate copyright law. (14) There are many technical requirements for safe harbor eligibility, but the basic quid pro quo is that in exchange for immunity, online platforms must remove or block access to infringing material once they receive a specific notice from the copyright owner--this system is referred to generally as notice-and-takedown...

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