Copyright's Techno-Pessimist Creep

Abstract

Government investigations and public scrutiny of Big Tech—or, what I call techno-pessimism—are at an all-time high. While current legal scholarship and government focus have centered overwhelmingly on two areas: antitrust and Section 230 of the Communications Decency Act, scant attention has been paid to another, almost unseen attempt to regulate Big Tech’s platform dominance—by copyright law. The recent adoption, in Europe, of Article 17 of the Copyright Directive, which removes safe harbor protection for Internet platforms and holds them liable for the creative speech of their users, is the most direct example—and a natural corollary to similar arguments for holding platforms liable under Section 230. Contemplated changes in U.S. law would make similar changes to the copyright safe harbor.

Regulating Big Tech by copyright may seem intuitively justified and even inevitable: after all, if one accepts the argument that antitrust laws or Section 230 should be updated to address the issue of Big Tech platform dominance, why shouldn’t our copyright laws, as well?

This Article argues that attempts to reform or update copyright law to address platform dominance, while tempting, are, at best, misguided, and, at worst, dangerous. As this Article shows, certain U.S. copyright laws that are now under threat, such as the Section 512 safe, were enacted precisely with market power in mind—but the market power of content companies, of which a select handful continue to control the vast amount of copyrighted content. And there has been no marked shift in market power away from content holders towards content users, including technology companies, that would warrant changes or contemplated changes to copyright laws. If anything, content holders enjoy significant market power in a world of shifting consumer demand from ownership to access goods. Reshaping copyright law in techno-pessimism’s image will, far from punishing Big Tech, instead ensure their further entrenchment; they will, counterintuitively, harm the very content industries that advocated for these changes; and, in the final analysis, will undermine the very underlying premise of copyright law: fostering creativity. A rich and open participatory culture still needs techno-optimist copyright laws, now, more than ever.

Keywords: copyright, intellectual property, big tech, technology law, international law