Academic journal article Harvard Law Review

The Single Publication Rule and Online Copyright: Tensions between Broadcast, Licensing, and Defamation Law

Academic journal article Harvard Law Review

The Single Publication Rule and Online Copyright: Tensions between Broadcast, Licensing, and Defamation Law

Article excerpt

I. INTRODUCTION

Defamation provides a cause of action for individuals whose reputations are harmed by the intentional publication of a statement, when its content tends to injure reputation. (1) Publication is an essential prong of the tort: the statement must reach someone other than the person discussed. (2) In the evolving realm of online content and especially on-demand video, when such publication occurs can be unclear. This Note will examine the overarching tension in internet law between the copyright policy objectives of the Digital Millennium Copyright Act (3) (DMCA) and the First Amendment values of the single publication rule. While the DMCA both protects intellectual property and encourages innovation, the cost of meeting those goals can be liability under the single publication rule. Policymakers must therefore be cognizant of the ways in which the two doctrines both support and complicate one another, choosing carefully to serve the ultimate goals of promoting innovation and protecting speech. Copyright law must also adapt itself to a new paradigm in which innovation is the predominant goal but in which enabling such creativity may mean allowing reputational injury of a previously unimaginable scope.

Both Congress and the courts have recognized a policy interest in "the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age." (4) The challenge, however, has been correctly balancing that interest against reputational harms and intellectual property violations. This Note will consider streaming video as an example of that tension; the potential for streaming video to function as a rebroadcast of material may provide plaintiffs an argument that their claims should not be seen as stale once the statutory period has passed. This Note will contend, however, that online content, especially streaming video, ought to be subject to the single publication rule that has traditionally governed publishers' liability; doing so would serve the goals of protecting speech and discouraging attempts to bring stale claims. The web gives private "citizens inexpensive access to a medium of mass communication and therefore transforms every citizen into a potential 'publisher' of information for First Amendment purposes," (5) and it would be unwise to threaten the willingness of such would-be publishers to add their ideas to the online marketplace. The interaction of traditional media--even when accessible over the internet--with less-regulated channels is also a complicating factor. (6) This Note considers how the traditional concepts of licensing and defamation liability are to be understood in a world of streaming content, where users can rebroadcast a piece as much as they like, and where the impact of statements is no longer isolated to readers of a paper or watchers of a broadcast but instead extended across the globe.

The increasingly blurred lines between the internet and other technologies are necessarily accompanied by doctrinal convergence of varied areas of law to govern online content. (7) This Note seeks to join that trend toward convergence. Part II considers the single publication rule, its history, and its justifications. Part III introduces the myriad copyright and licensing issues involved in internet publication. Part IV discusses the interaction of copyright and defamation law. Part V concludes by drawing lessons from both forms of regulation. Policymakers and courts must resolve a fundamental conflict facing internet law: to conform to the DMCA rules and avoid copyright infringement, posters must alter the original content enough to bring themselves under the protection of fair use, but the greater that deviation from the original publication the more likely posters will be to expose themselves to defamation liability. In other words, while one policy favors innovation, the application of the other threatens to punish it. …

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