“Can I Post This?”: A Call for Nuanced Interpretation of DMCA Enforcement in the Age of Social Media

Authors

Erin E. Bronner, Fordham University School of Law

Keywords

digital; copyright; DMCA; social media; fair use; meme; parody; automation

Abstract

This Note advances recent scholarship critiquing the notice-and-takedown procedures used by online service providers (OSPs) under the safe-harbor provision of the Digital Millennium Copyright Act (DMCA)—specifically in the context of user-generated content (UGC) posted by end users on social media. Rights holders have increasingly put legal pressure on technology platforms to fortify their copyright protection mechanisms. Over the past decade, this imperative has manifested through an increased use of automated content recognition (ACR) technology to remove allegedly infringing UGC. ACR technology has gradually overtaken the manual, human review of UGC that the DMCA envisioned.

However, reliance on mass automated takedowns of UGC creates a legal conflict. Lenz v. Universal Music Corp. established that rights holders must evaluate fair use before submitting a takedown notice to an OSP to avoid misrepresentation. Since automated takedowns remove the required review component, this Note questions their legality. This Note also examines recent litigation surrounding fair use and proposes to expand the definition of fair use to account for social media as one of many copyright battlefields of the 2020s. Such an expansion would fortify UGC creators’ rights on social media, thus ensuring equity between rights holders and users.

Recommended Citation

Erin E. Bronner, “Can I Post This?”: A Call for Nuanced Interpretation of DMCA Enforcement in the Age of Social Media, 92 Fordham L. Rev. 1031 (2023).
Available at: https://ir.lawnet.fordham.edu/flr/vol92/iss3/8