Copyright’s Digital/Analog Divide
Authors: Sag Matthew 
Published: July 2018

This Article shows how the substantive balance of copyright law has beenovershadowed online by the system of intermediary safe harbors enacted aspart of the Digital Millennium Copyright Act (“DMCA”) in 1998. The Internetsafe harbors and the system of notice-and-takedown fundamentally changedthe incentives of platforms, users, and rightsholders in relation to claimsof copyright infringement. These different incentives interact to yield afunctional balance of copyright online that diverges markedly from theexperience of copyright law in traditional media environments. This articlealso explores a second divergence: the DMCA’s safe harbor system is beingsuperseded by private agreements between rightsholders and large commercialInternet platforms made in the shadow of those safe harbors. Theseagreements relate to automatic copyright filtering systems, such asYouTube’s Content ID, that not only return platforms to their gatekeepingrole, but encode that role in algorithms and software.The normative implications of these developments are contestable. Fair useand other axioms of copyright law still nominally apply online; but inpractice, the safe harbors and private agreements made in the shadow ofthose safe harbors are now far more important determinants of onlinebehavior than whether that conduct is, or is not, substantively incompliance with copyright law. The diminished relevance of substantivecopyright law to online expression has benefits and costs that appearfundamentally incommensurable. Compared to the offline world, onlineplatforms are typically more permissive of infringement, and more open tonew and unexpected speech and new forms of cultural participation. However,speech on these platforms is also more vulnerable to over-reaching claimsby rightsholders. There is no easy metric for comparing the value ofnon-infringing expression enabled by the safe harbors to that which hasbeen unjustifiably suppressed by misuse of the notice-and-takedown system.Likewise, the harm that copyright infringement does to rightsholders is noteasy to calculate, nor is it easy to weigh against the many benefits of thesafe harbors.DMCA-plus agreements raise additional considerations. Automatic copyrightenforcement systems have obvious advantages for both platforms andrightsholders; they may also allow platforms to be more hospitable tocertain types of user content. However, automated enforcement systems mayalso place an undue burden on fair use and other forms of non-infringingspeech. The design of copyright enforcement robots encodes a series ofpolicy choices made by platforms and rightsholders and, as a result,subjects online speech and cultural participation to a new layer of privateordering and private control. In the future, private interests, not publicpolicy will determine the conditions under which users get to participatein online platforms that adopt these systems. In a world wherecommunication and expression is policed by copyright robots, thesubstantive content of copyright law matters only to the extent that thosewith power decide that it should matter.Keywords: Copyright, DMCA, Infringement, Internet, Safe harbors,Enforcement, Fair use, Automation, Algorithms, Robots.