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  • Automated Copyright Enforcement Online: From Blocking to Monetization of User-Generated Content

    Grosse Ruse-Khan, Henning (Digital Commons @ American University Washington College of Law, 2020-07-01)
    Global platforms such as YouTube, Facebook, Instagram or TikTok live on users ‘freely’ sharing content, in exchange for the data generated in the process. Many of these digital market actors nowadays employ automated copyright enforcement tools, allowing those who claim ownership to identify matching content uploaded by users. While most debates on state-sanctioned platform liability and automated private ordering by platforms has focused on the implications of user generated content being blocked, this paper places a spotlight on monetization. Using YouTube’s Content ID as principal example, I show how monetizing user content is by far the norm, and blocking the rare exception. This is not surprising, since both platforms and copyright owners significantly profit from monetization. However, contrasting complex automated enforcement tools such as Content ID against basic principles of copyright law, this paper shows how users loose out when their content is exploited. As aggravating factors, the paper points to far-reaching powers that platforms as ‘functional sovereigns’ wield within their respective domains; and to the fundamentally distinct nature of norms set by these sovereigns. The platform’s application and enforcement of its own rules is hard-coded, immediate and automated: embedded in its infrastructure and code, implemented through automation, and adjudicated in its own courts, platform rules constitute brute facts, directly shaping our reality – hence transforming the nature of law as institutional (that is, socially constructed) facts. The paper concludes by critically reviewing mechanisms to protect users, including those set out in Article 17 of the EU’s Digital Single Market Directive.
  • The Most Moral of Rights: The Right to be Recognized as the Author of One's Work

    Ginsburg, Jane C. (Scholarship Archive, 2016-01-01)
    The U.S. Constitution authorizes Congress to secure for limited times the exclusive right of authors to their writings. Curiously, those rights, as enacted in our copyright laws, have not included a general right to be recognized as the author of one's writings. Yet, the interest in being identified with one's work is fundamental, whatever the conception of the philosophical or policy basis for copyright. The basic fairness of giving credit where it is due advances both the author-regarding and the public-regarding aspects of copyright. Most national copyright laws guarantee the right of attribution (or "paternity"); the leading international copyright treaty, the Berne Convention, requires that Member States protect other Members' authors' right to claim authorship. But, apart from an infinitesimal (and badly drafted) recognition of the right in the 1990 Visual Artist’s Right Act, and an uncertain and indirect route through protection of copyright management information, the U.S. has not implemented that obligation. Perpetuating that omission not only allows a source of international embarrassment to continue to fester; it also belittles our own creators. Copyright not only protects the economic interests in a work of authorship, it also secures (or should secure) the dignitary interests that for many authors precede monetary gain. Without established and enforceable attribution rights, U.S. copyright neither meets international norms nor fulfills the aspirations of the constitutional copyright clause. This article will analyze the bases and enforceability of attribution rights within international norms. It will review the sources of attribution rights in the current US copyright law, particularly the Visual Artists Rights Act, and section 1202's coverage of copyright management information. It will explore the extent to which removal of author-identifying information might violate section 1202 and/or disqualify an online service provider from the section 512 safe harbors. Finally, it will consider how our law might be interpreted or amended to provide for authorship attribution. Non-legislative measures include making authorship attribution a consideration under the first factor of the fair use defense.
  • Collective Rights Licensing for Internet Downloads and Streams: Would It Properly Compensate Rights Holders

    Masur, Steven (Villanova University School of Law Digital Repository, 2011-01-01)
  • Copyright Freeconomics

    Newman, John M. (University of Miami School of Law Institutional Repository, 2013-01-01)
    Innovation has wreaked creative destruction on traditional content platforms. During the decade following Napster's rise and fall, industry organizations launched litigation campaigns to combat the dramatic downward pricing pressure created by the advent of zero-price, copyright-infringing content. These campaigns attracted a torrent of debate among scholars and stakeholders regarding the proper scope and role of copyright law-but this ongoing debate has missed the forest for the trees. Industry organizations have abandoned litigation efforts, and many copyright owners now compete directly with infringing products by offering legitimate content at a price of $0.00. This sea change has ushered in an era of "copyright freeconomics." Drawing on an emerging body of behavioral economics and consumer-psychology literature, this Article demonstrates that, when faced with the "magic" of zero prices, the neoclassical economic model underpinning modern U.S. copyright law collapses. As a result, the shift to a freeconomic model threatens entrenched tenets that lie at the very heart of copyright law and theory. This Article argues that the traditional dichotomies separating use from ownership and utilitarian rights from moral rights have been seriously eroded, if not outright destroyed. If copyright law does not evolve to face these changes, it will run the risk of extinction through irrelevance. Accordingly, this Article both identifies responsive policy prescriptions and, perhaps more importantly, establishes a set of structured, coherent, and efficient analytical frameworks to aid in their implementation.

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