The Daily Dish
September 21, 2021
Platforms and Copyright Infringement
Eakinomics: Platforms and Copyright Infringement
As detailed in Juan Londoño’s research, there is growing tension between digital media platforms and copyright enforcement. It makes for great headlines when, for example, the National Music Publishers Association threatens to sue Tik Tok, but the actual issues are quite subtle. They revolve around the changing kinds of content being shared on platforms, the incentives for users to provide new content, and the notion of “fair use” of existing content. And all roads lead to the Digital Millennium Copyright Act (DMCA).
The DMCA was passed in the age of Napster, and – despite its name – has not aged well enough to survive the millennium unchanged. Recall that Napster was peer-to-peer file sharing software that allowed users to share, in particular, audio files. Those files were largely copyrighted songs that were being distributed for free. The DMCA was essentially passed to stop that, and it did.
Now, however, the canonical content that is being shared is a tweener’s dance to a song, serious commentary on a clip of a movie, or – most frequently – rapping over an Eakinomics video. In posting these items, the platforms’ users make a primary contribution in the form of the dance, commentary, or rap. The issue is whether the use of the song, film clip, or Eakinomics video is a copyright infringement.
The DMCA anticipated this to some extent in the form of its “fair use” doctrine. Fair use is, per Londoño, “reproduction of these copyrighted materials for ‘criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.’” Unfortunately, the fair use doctrine is hardly a bright line in cyberspace, leaving platforms unsure as to whether a post constitutes copyright infringement or not.
At one end of the spectrum, platforms could leave up all content until there was a clear finding of infringement. This would be great for content creators, but risky for the platforms who face fines up to $150,000 per infringement. Alternatively, platforms could take down content the moment a copyright owner complained. Indeed, one could develop algorithms to automatically sweep content off the site. There might not ultimately be a finding of infringement, but the content creator would be off the site and losing visibility. That is bad for the climate for innovation and hurts platform growth.
There are even competitive misuses of flagging content for infringement among content creators and other angles to the debate. It is a complicated situation.
Londoño points out that existing proposals tend to strengthen the incentives to take down content quickly (and, often, unnecessarily). That seems like an unbalanced solution to the disputes. Instead, he suggests, the primary objective should be to clarify fair use, thus limiting the ambiguity and making content moderation easier.
Fact of the Day
Across all rulemakings this past week, agencies published $44.8 million in total net costs and added 413,905 paperwork burden hours.