AuthorTang, Xiyin

TABLE OF CONTENTS INTRODUCTION I. THE [section] 512 STATUTORY SCHEME: PLATFORMS AS PRIVATE COURTHOUSES II. THE NEW PRIVATE COPYRIGHT LAW: PLATFORMS AS LEGISLATORS A. The Rise of Private Contracting 1. YouTube's Content ID 2. Meta's Rights Manager 3. Other Platforms Follow Suit B. How the New Private Copyright Is Rewriting Substantive Law 1. Creating New Substantive Rights 2. Contravening Existing Substantive Rights C. Private Copyright as Influencing and Shaping Public Law 1. Private Copyright Influences and Changes Public Common Law 2. Private Copyright Creates Public Copyright Regulations III. ENSHRINING THE NEW PRIVATE COPYRIGHT IN THE PUBLIC LAWS A. Article 17 and Mandated Private Licensing B. Removing Streaming Rights from Department of Justice Oversight C. The Music Modernization Act: Rejecting Public Interest Considerations in Favor of Private Ordering IV. MAKING THE PRIVATE PUBLIC AGAIN A. Copyright Moderation Decisions Are Content Moderation Decisions B. Certain Copyright Default Rules as Immutable Rules C. Reinserting the User CONCLUSION INTRODUCTION

In recent years, a growing body of literature has turned public attention to the role that online intermediaries play in regulating free speech. These digital platforms have been described in internet law scholarship as "nonstate regulators" of the public sphere, (1) as private law enforcers acting within the "shadow[s]" of the state, (2) and as "new gatekeepers" controlling free expression. (3) Indeed, the role that large internet platforms like Facebookplay in regulating free expression looms so outsized in the literature that it has even, according to some, rendered the old dyadic model of speech regulation--in which the nation-state regulates the speech of those living within its borders--obsolete. (4) Instead, as Professor Jack Balkin argues, "freedom of speech increasingly depends on a third group of players: a privately owned infrastructure of digital communication composed of firms that support and govern the digital public sphere that people use to communicate." (5) This digital infrastructure, Balkin has argued, "is important, if not crucial, to people's practical ability to speak." (6)

Yet there is, as this Article details, a fourth dimension to Professor Balkin's triadic model of speech regulation: copyright owners who control not the infrastructure of the communication but much of its contents. That is, large swaths of user speech on digital platforms are not wholly original to the speaker. Instead, they incorporate bits and pieces of others' copyrighted content: audio or audiovisual content that is owned not by the speaker, and not by the digital platform, but instead by large copyright holders like Disney, Warner Music, or Sony. How and why platforms moderate this type of user expression differs markedly, and hence requires a very different analytical framework, from traditional content moderation frameworks that have been well explored in the literature. (7)

Understanding this little-explored intersection of copyright and digital speech has important ramifications for the explosion of so-called "platform law" literature. (8) Rudimentary lay beliefs that digital platforms will block any user speech incorporating copyrighted content, for example, have led police to play Disney songs in an attempt to keep citizen-deployed accountability videos off social media. (9) Similarly, even scholars studying digital platforms mostly assume that copyright content moderation occurs under a statutory framework ([section] 512 of the Digital Millennium Copyright Act (10)), which allows for the "mass and easy removal of allegedly infringing copyrighted content, ending up with a significant chilling effect to freedom of speech." (11) But neither of these accounts is wholly accurate. User-generated content containing copyrighted works is neither completely blocked nor removed en masse pursuant to a statutory framework. Instead, as this Article details, user speech that incorporates copyrighted content on large digital platforms like Google (12) and Facebook (13) is governed by a series of highly confidential, private licensing agreements entered into between platforms and large copyright holders. Unlike the copyright statute, the use of private contracting gives copyright owners, in concert with platforms, power to create new rules that govern how millions of people share copyrighted content--without any need to resort to the legislative process.

This system of privatized copyright--in which large copyright holders leverage the power of platforms to enforce a preferred set of copyright policies that are passed down to the platform's users through expansive platform terms of service (14)--presents a new and different example of the phenomenon of platforms acting as quasi-state actors. (15) But the new private copyright has ramifications beyond the content moderation literature as well. For copyright scholars, insights into the new private copyright suggest that substantive, public copyright law (16)--such as the oft-repeated mantra that the United States does not recognize moral rights outside of the fine arts (17) or that fair use is the most important First Amendment safeguard in copyright law (18)--matters little in the online sphere. By piecing together clues from publicly available news reporting and digital platforms' own internal and external documents, including from one particularly pertinent leaked agreement that was entered into between Facebook and copyright holders, this Article instead reveals a world where the substantive law of copyright is being quietly rewritten and reshaped. Agreements between digital platforms and rightsholders remove the First Amendment safeguard of fair use, insert a new moral right for works previously deemed ineligible for moral rights protection, and use other small provisions to influence and reshape administrative, common, and statutory copyright law.

And finally, for contract law scholars and those who have long studied how private parties may contract around the substantive law, (19) the new private copyright poses a fascinating question: how should we think about private contracts that govern the activities and behaviors of millions of nonparties to the original agreement (20)--nonparties that are forbidden, by nature of the confidentiality clauses, from reading its terms? The very scale and reach of digital platforms as fundamentally public fora challenge traditional justifications for private ordering as "generally affect[ing] only their parties." (21) As Judge Easterbrook put it in an early case vindicating the use of "shrinkwrap" agreements for computer software: "[S]trangers may do as they please, so contracts do not create 'exclusive rights.'" (22) Instead, the rights that copyright holders have obtained through contracts with powerful digital intermediaries are beginning to look precisely like the exclusive rights created by the Copyright Act--applying to millions of strangers who have never seen, or even know, that such contracts exist. (23)

This Article proceeds in four parts. Part I outlines the statutory framework that governs the distribution of user-generated content on the internet. Commonly referred to as the "safe harbor," [section] 512 of the Digital Millennium Copyright Act establishes what's known as a notice-and-takedown system, in which copyright holders can request the removal of user content upon a good faith belief that such use is not permitted by statutory copyright law. (24) The content moderation scholarship that has touched on copyright issues has focused overwhelmingly on [section] 512, with some describing it as a "federally mandated procedural system" that puts platforms in the role of copyright adjudicators. (25)

Yet even as legal scholarship has continued to focus on [section] 512 as exemplary of copyright content moderation on the internet, the largest digital platforms--Google and Facebook--have been quietly moving away from reliance on the statute. Instead, as Part II details, copyright content moderation on those platforms is governed by a series of confidential private contracts that expressly dictate what users can and cannot do with copyrighted material. Part II details licensing agreement terms that create new substantive rights not present in the Copyright Act or that directly contravene existing statutory rights, as well as other privately negotiated terms that might even come to influence and reshape the common and administrative law of copyright.

While calls to reform platform content moderation practices outside of copyright have focused on more transparency and more restrictions on private power, (26) copyright law, on the other hand, has moved in much the opposite direction. As Part III discusses, the passage in Europe of Article 17 requires technology platforms to enter into private agreements and implement privately developed monitoring and filtering systems that automatically scan and remove certain user-generated content. While Article 17 may or may not serve as a model for similar changes to U.S. copyright law, the very global nature of internet platforms means European laws invariably become global laws as multinational companies voluntarily extend E.U. rules to govern their global operations. (27) Part III concludes with discussions of two other recent changes or lobbied-for changes in U.S. copyright law: one that removes all mentions of "public policy" in setting the compulsory licensing rates paid by digital streaming companies and another that would remove licensing negotiations between large music publishers and technology platforms from antitrust oversight by the Department of Justice, which had been overseeing such licensing activity since the 1940s.

Part IV concludes with some proposals for how to address the two biggest problems this Article has identified with regard to the privatized copyright regime: (1) a lack of transparency and...

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