Making Protection Against Copyright Infringement More Accessible in the Social Media Era.

• Author: Syed, Ayesha

TABLE OF CONTENTS I. INTRODUCTION 377 II. BACKGROUND 379 A. The Following Section Provides an Overview of the General Mechanics of Twitter as Well as a Few Examples That Illustrate the Issue This Note Addresses 379 B. Current Legal Framework 383 1. Copyrightability of Tweets 383 2. Copyright Infringement 384 C. Current Remedies for Infringement, and Why They Are Not Always Applicable/Effective 385 D. A Look at Registration 387 E. The Following Section Provides Background Information on the CASE Act 390 III. NEED FOR REFORM 391 IV. SOLUTION 392 A. Prong I: Eliminate the Registration Requirement to Collect Statutory Damages and Costs and Attorney's Fees in Instances Where the Publication of the Content on Twitter and/or Other Social Media Platforms Serves the Purpose the Copyright Registration Would Have Served 392 1. The Amendment in Prong I Should Include a Maximum Amount of Damages to Be Collected 395 B. Prong II: The CASE Act Should Award Prevailing Plaintiffs Attorney's Fees in Cases Where the Defendant Prefers to Have the Case Heard in Court as Opposed to Having It Heard in the Small Claims Court Proposed by the Bill 395 1. Congress Should Adopt Prong I Without Any Contingencies and Adopt Prong II Contingent Upon the Passing of the CASE Act 396 V. POLICY NEED 397 VI. CONCLUSION 398 I. INTRODUCTION

With the increased use of various social media platforms like Twitter and Instagram, the process of sharing ideas has become progressively easier and more widespread. These platforms have also become spaces where creators can publish their work (1) Whether it be a comedian sharing originally written jokes, a writer sharing stories, or an artist posting a graphic, these platforms have become creative hubs for artists having access to fast publication of their work (2) While these forums are pretty remarkable ways to create and consume culture, they also create problems. (3)

One of the problems created by this method of sharing is social media users taking the original works of other users, commercializing them, and profiting off this commercialization without any attribution to or compensation for the original authors. (4) The current mechanisms in place for collecting damages for copyright infringement are either impractical or inapplicable for Twitter users who do not seek to obtain registration for the works they publish through the social media platform and other platforms like it due to the high cost of attorney's fees. (5)

As the way we create and consume culture changes, the nature of the mechanisms we have in place for protecting original content creators against copyright infringement must change as well. One barrier that needs to be eliminated to better protect these authors is the registration prerequisite for copyright owners to collect statutory damages and attorney's fees under the Copyright Act of 1976. (6) Authors will be better protected if this barrier is eliminated because they will have easier access to adequate relief. The collection of attorney's fees specifically would enable authors who couldn't previously bring suit due to financial concerns to bring suit once the barrier is eliminated. This Note will present complementary approaches aimed at amending the registration requirement in order to eliminate this barrier. Congress should create an exception to the registration requirement in the Copyright Act in instances where commercialization of the content of a stolen tweet has occurred. In these cases, the tweet itself usually offers the information a registration of the work would require, thereby serving the purpose of registration of "establishing a public record of a copyright claim" (7) without obtaining actual registration from the Copyright Office. It is also necessary to consider a new bill, titled the CASE Act, aimed at creating a small claims court for copyright holders when attempting to eliminate the registration barrier. (8) As part of the approach presented in this Note, eliminating the registration barrier would also involve providing an alternative to plaintiffs in situations where cases qualify to be tried in the CASE Act-presented small claims court (9) but are instead tried in front of a jury due to the defendant's preference. If a defendant were to opt for a jury trial instead, the plaintiff would have to bear the cost of an attorney in a situation where she would not have had been required to have the case tried in a small claims court. (10) Therefore, this proposal aims to allow prevailing plaintiffs to collect attorney's fees for cases tried in federal court that could have instead been tried in the small claims court presented by the CASE Act bill to avoid attorney's fees to begin with.

Although the problem discussed in this Note is prevalent among a variety of social media platforms, the focus will be on how the issue of copyright infringement has manifested through the use of Twitter. However, the solutions presented in this Note could be applicable to a variety of social media platforms and should not be limited to the scope of Twitter. While applying this Note's proposal to other social media platforms would need more analysis and research, for the purposes of this Note, it is important to keep in mind that the implications of the proposals presented may extend beyond Twitter.

Due to the increasing ability of creators to share their works online on social media platforms, Congress must amend the registration requirement of Copyright Act in order to better protect copyright owners against infringement and to provide access to better enforcement of their copyright protection rights. This Note will first lay out the issue of commercialization of tweets without compensation for or attribution to their original authors. Next, it will briefly discuss the legal basis surrounding the copyrightability of content posted on Twitter followed by an in-depth discussion of the current legal framework in place meant to protect original content creators in these instances and why they are insufficient. Finally, it will present a two-pronged solution aimed at relaxing the registration requirement to provide creators with access to the courts and attorney's fees in the event of a lawsuit, enabling creators to defend themselves against copyright infringement even without formal registration of their work. The first prong proposes that Congress amend the Copyright Act to allow a social media post like a tweet to serve as informal registration that allows the plaintiff to bring suits and have access to the other benefits of registration, such as the awarding of attorney's fees, until formal registration can be obtained. The second prong proposes that, even if the CASE Act passes, the prevailing plaintiff may still be awarded attorney's fees without formal registration if the defendant prefers to have the case heard in a federal court rather than the small claims court created by the bill. In order to eliminate the registration barrier that prevents many individual creators who post their work on social media from bringing suit against infringers, Congress must first amend the Copyright Act to allow creators' social media posts, such as tweets, to serve as registration for the purpose of filing infringement lawsuits and second provide a way for prevailing plaintiffs to recuperate attorney's fees in certain cases tried in the small claims court proposed by the CASE Act should the bill pass.

2. BACKGROUND

   The following Section will illustrate relevant factual and legal background to provide a better understanding of the issue this Note attempts to resolve. The first Subsection will provide general information on how Twitter works along with examples of creators' work posted on social media being commercialized without their permission. The second Subsection will then go into the relevant legal background surrounding the current legal mechanisms available to creators like those who post their work on social media.

   1. The Following Section Provides an Overview of the General Mechanics of Twitter as Well as a Few Examples That Illustrate the Issue This Note Addresses.

      The social media platform Twitter is a website where users sign up, free of charge, to create accounts where they are able to post (or "tweet") whatever they wish within the limits of 280 characters and Twitter's terms and conditions. (11) Twitter users have the option of setting their Twitter profiles as private, where only the people they have allowed to follow them can view the content they post, or public, where anyone, regardless of whether they follow the account, is able to view the content they have posted. (12) When a Twitter user ("tweeter")'s profile is public, other users are able to "retweet" that user's tweet so that it is reposted on the retweeter's page for all of her followers to view as well. (13) This process enables users who may not follow the original tweeter to view the tweet. (14) This retweeting process is one way for a Twitter user to reach a wide-spread audience. It may also be relevant to know that Twitter gives a portion of its users, such as celebrities, public figures, and news accounts, a blue checkmark next to their Twitter names to indicate that user's authenticity (15)

      The content posted on Twitter varies tremendously. For example, companies use Twitter to advertise, news agencies use the platform to break stories, celebrities tweet to maintain an online presence, and other individuals use the platform to interact with online phenomena and post both original and unoriginal content. (16) The focus of this Note is primarily on the last group of Twitter users. The type of content these individuals post varies further. Many users limit themselves to posting thoughts or observations, which range from being insightful or witty to simply being ridiculous. (17) On the other hand, many use Twitter as a public forum to showcase their talents. (18) These talents come in the form of...