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 US 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 …
Tang, Xiyin, Copyright’s Techno-Pessimist Creep (February 1, 2021). Fordham Law Review, forthcoming.
First posted 2021-03-27 11:00:11
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