Crafting Copyright Law to Encourage and Protect User-Generated Content in the Internet Social Networking Context

Abstract

In the online social networking context, the constitutional purpose of the Copyright Clause will best be served by establishing relatively clear guidelines through legislation and court decisions that protect the ability of users and creators of works, including derivative works, to utilize the full capabilities of social networking technologies and the technologies that help make networks so vibrant – without having to depend upon the mercurial forbearance of copyright holders.

In this essay, I propose that the copyright law in the online social networking context should explicitly authorize the sorts of interactions generally done by online social network participants now. Codifying current practice would cause little if any negative impact to the creation of and commercial exploitation of copyrighted works for those wanting to do so. To the extent there would be any negative impact, it would be insubstantial, and financial incentives attendant to the copyright monopoly for the creation of new works would still be more than sufficient – music, literature, and movies would still be created and commercially exploited. The purpose of the Copyright Act is not to protect business models that become outmoded; it is to protect the societal interest in the creation and distribution of copyrighted works.

Keywords: copyright, social networking, youtube, dmca, derivative work, fair use