Abstract
Much has been written about the free speech quasi-jurisprudence being developed
by social media platforms through content moderation policies unconstrained by
constitutional limits. This Article focuses on a specific subset of that content
moderation—namely, the takedown of user-generated content in the name of
copyright enforcement. This Article argues that the unlimited power of online
platforms to regulate access to user-generated content through antipiracy algorithms
leads to three perverse outcomes. First, the removal of lawful content falsely flagged
as “infringing” results in the suppression of legitimate speech and a reduction in the
diversity of online discourse. Second, the erosion of lawful exceptions and
limitations to copyright protection through algorithmic adjudication alters the
fundamental social contract established by copyright legislation, displaces decades
of carefully developed fair use jurisprudence, and transfers adjudicatory power from
courts to corporations. Third, the monetization of user-generated content not by
users, but by copyright owners (following the flagging of content as “infringing”), is symptomatic of a broader, systemic exploitation of users that is occurring on digital
platforms, also known as “technofeudalism.”