Citation: Matthew Sag, Internet Safe Harbors and the Transformation of Copyright Law, 93 Notre Dame Law Review 499 (2017)
In a nutshell:
In Internet Safe Harbors and the Transformation of Copyright Law, Matthew Sag argues that the DMCA safe harbors, and the private “DMCA-plus” agreements negotiated in their shadow, have displaced substantive copyright law as the primary determinant of what gets published and stays published online.
Summary
The article develops the concept of the functional balance of copyright: the difference between what copyright law allows in theory and what people can actually do in practice. In traditional media, gatekeepers such as publishers, broadcasters, distributors, and insurance companies decide what gets published with substantive copyright law in mind, so the law on the books and the law in action stay connected. The DMCA safe harbors broke that connection online. A platform that complies with notice-and-takedown has no reason to ask whether user uploads are licensed, infringing, or fair use until it receives a takedown notice, and users posting to open platforms give copyright equally little thought.
Under notice-and-takedown, the balance of publication is set by the interaction between what users choose to post and what copyright owners choose to take down. Neither decision tracks the substance of copyright law. Platforms operating under the safe harbors are more permissive of infringement and more open to new forms of speech and cultural participation than their offline counterparts, but online speech is also more exposed to overreaching takedown claims. Sag’s examples run from unlicensed karaoke videos left untouched to the removal of John McCain’s 2008 campaign commercials on thin copyright grounds. The article argues that these costs and benefits are ultimately incommensurable.
The article then turns to DMCA-plus agreements, under which large platforms adopt automated enforcement systems, such as YouTube’s Content ID, that go beyond anything the statute requires. These systems reinstate the gatekeeping role the safe harbors removed and encode it in algorithms and private contracts. Because they operate outside the DMCA, the statute’s mandatory user safeguards become optional. Every element of the system, from matching thresholds to the choice among block, mute, monitor, or monetize, reflects policy decisions made by platforms and rightsholders rather than by Congress or the courts. Sag catalogs the resulting failure modes, including fraudulent ownership claims, mistaken matches, and monetization of uses that would qualify as fair use.
Why read this article?
Internet Safe Harbors and the Transformation of Copyright Law provides a compact history of how the DMCA came to be, from the confused secondary liability caselaw of the 1990s in cases like Netcom and CoStar to the legislative bargain between content owners and the telecommunications industry. It also walks through the four section 512 safe harbors and their eligibility requirements, including the knowledge standards litigated in Viacom v. YouTube.
The article also gives a detailed account of how Content ID works, including its matching technology, its copyright strike and appeal rules, and a taxonomy of filtering false positives, illustrated with examples like EMI’s infringement claim against an hour-long video of a purring cat. Written in 2017, the article supplies the vocabulary of “functional balance” and “DMCA-plus” for debates over mandatory copyright filtering that have only intensified since.
Further Reading
Jennifer M. Urban, Joe Karaganis & Brianna L. Schofield, Notice and Takedown in Everyday Practice (UC Berkeley Public Law Research Paper No. 2755628, 2017) – This empirical study of the notice-and-takedown system, based on surveys of platforms and rightsholders and manual review of thousands of takedown requests, documents the high rates of flawed and questionable notices on which Sag’s analysis draws.
Lital Helman & Gideon Parchomovsky, The Best Available Technology Standard, 111 Columbia Law Review 1194 (2011) – Helman and Parchomovsky propose conditioning safe harbor immunity on a platform’s adoption of the best available filtering technology; Sag’s account of DMCA-plus systems shows how voluntary filtering of this kind works in practice.
Wendy Seltzer, Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment, 24 Harvard Journal of Law & Technology 171 (2010) – Seltzer argues that the DMCA’s takedown incentives let copyright complaints suppress lawful speech without First Amendment scrutiny, a concern Sag extends to the world of algorithmic enforcement.
James Gibson, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale Law Journal 882 (2007) – Gibson describes a feedback cycle in which risk-averse gatekeepers license uses they need not license, expanding copyright’s effective reach; Sag argues that open internet platforms produce the opposite dynamic.