Beyond Whack-a-Mole: Content Protection in the Age of Platform Accountability

Abstract

This is a story about David vs. Goliath.  But with a twist.  What happens when the main characters change roles before the story is over?  The person whom we are rooting for becomes less clear.  Are they the villain or the hero?  And, because it’s a story about copyright, and I now work in the film business, let’s put it in those terms:  It’s realizing halfway through the movie that maybe the supposed villain, Maleficent, wasn’t so bad after all, or at least she had a very good reason for her distrust of the humans—they did cut off her wings and stuff them in a box.

I may be going a bit far with my analogies, and the description of the overall public sentiment towards the protagonists of my story is perhaps a bit hyperbolic.  Indeed, many people would probably argue that there are actually no heroes in this particular narrative.  But as I discuss, there has unquestionably been a disparity between the public’s perceptions of copyright creators versus technologists throughout the years.  This Article assesses how the story of “Copyright and Technology” has progressed over the years and affected related policy making, how the narrative has recently shifted, and how that shift might actually provide a basis for more cooperative efforts between the two “sides” to address Internet piracy, not fewer.

 Part I of this Article explores the early development of the Internet, the regulatory approach to platform responsibility at that time, and the contrasting pre-existing negative views towards copyright.  Part II describes the resulting permissive legal regime, including the adoption of the Digital Millennium Copyright Right Act (DMCA), early Internet case law addressing online copyright infringement under that legislation, and the development of the Communications Decency Act (CDA).  Part III highlights the ongoing rise in piracy after the DMCA and backlash to congressional attempts to address it.  Part IV discusses recent regulatory and public scrutiny of online platforms and the reassessment of their responsibility for addressing illicit conduct occurring through their services.