Civil Procedures for a World of Shared and User-Generated Content

Abstract

Scholars often focus on the substance of copyrights as opposed to the procedures used to enforce them. Yet copyright enforcement procedures are at the root of significant overreach and deserve greater attention in academic literature. This Article explores three types of private enforcement procedures: direct enforcement (cease-and-desist practice); indirect enforcement (DMCA takedowns); and automated enforcement (YouTube’s Content ID filtering program). Such procedures can produce a “substance-procedure-substance” feedback loop that causes significant de facto overextensions of copyrights, particularly against those creating and sharing User-Generated Content (UGC). To avoid this feedback, the Article proposes descriptive and normative frameworks aimed towards the creation of better procedures. Looking to the relevant actors, the source of procedures, and the functions of enforcement (the descriptive framework), the Article suggests principles of participation, transparency, and “balanced accuracy” (the normative framework) that might lead to private enforcement procedures that accommodate the reasonable cost and efficiency needs of copyright owners without trampling on UGC.

Keywords: copyright, DMCA, digital millennium copyright act, youtube, content id, content identification, filtering, code, user-generated content, ugc, cease-and-desist, statutory damages, feedback, civil procedure, procedural justice, participation, transparency, accuracy, normativism, proceduralism