Academic journal article Notre Dame Law Review

Internet Safe Harbors and the Transformation of Copyright Law

Academic journal article Notre Dame Law Review

Internet Safe Harbors and the Transformation of Copyright Law

Article excerpt

This Article explores the potential displacement of substantive copyright law in the increasingly important online environment. In 1998, Congress enacted a system of intermediary safe harbors as part of the Digital Millennium Copyright Act (DMCA). The internet safe harbors and the associated system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. More recently, private agreements between rightsholders and large commercial internet platforms have been made in the shadow of those safe harbors. These "DMCA-plus " agreements relate to automatic copyright filtering systems, such as YouTube's Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software.

The normative implications of these developments are contestable. Fair use and other axioms of copyright law still nominally apply online, but in practice, the safe harbors and private agreements made in the shadow of those safe harbors are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. Substantive copyright law is not necessarily irrelevant online, but its relevance is indirect and contingent. The attenuated relevance of substantive copyright law to online expression has benefits and costs that appear fundamentally incommensurable. Compared to the offline world, online platforms are typically more permissive of infringement, and more open to new and unexpected speech and new forms of cultural participation. However, speech on these platforms is also more vulnerable to overreaching claims by rightsholders. There is no easy metric for comparing the value of noninfringing expression enabled by the safe harbors to that which has been unjustifiably suppressed by misuse of the notice-and-takedown system. Likewise, the harm that copyright infringement does to rightsholders is not easy to calculate, nor is it easy to weigh against the many benefits of the safe harbors.

DMCA-plus agreements raise additional incommensurable potential costs and benefits. Automatic copyright enforcement systems have obvious advantages for both platforms and right-sholders: they may reduce the harm of copyright infringement; they may also allow platforms to he more hospitable to certain types of user content. However, automated enforcement systems may also place an undue burden on fair use and other forms of noninfringing speech. The design of copyright enforcement robots encodes a series of policy choices made by platforms and rightsholders and, as a result, subjects online speech and cultural participation to a new layer of private ordering and control. In the future, private interests, not public policy, will determine the conditions under which users get to participate in online platforms that adopt these systems. In a world where communication and expression is policed by copyright robots, the substantive content of copyright law matters only to the extent that those with power decide that it should matter.


The internet is deeply integrated into most of our lives: we connect with other people online, we build communities online, we are entertained and informed online, and, increasingly, we buy, sell, and work online. Yet vital aspects of the regulation of online expression owe far more to the policies and unilateral actions of private companies than to public policy.

For over 300 years, the law of copyright has struck a careful balance between rights and freedoms. Copyright law recognizes the need to incentivize authors by granting them a significant degree of control over the use of their works, but this control is far from absolute. …

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