Web 2.0 has generated a surplus of creativity, encouraging innovation of new technologies and further creative expansion of the internet. Social media platforms have demonstrated a significant growth during this time and have been used to create and disseminate a wealth of information and cultural material. While it is important that copyright owners receive legal protection of the content they create, it is necessary not to simultaneously stifle the creativity of end-users. Copyright owners have more power in bargaining for their rights, and their rights are well established through statutory protections. However, internet innovators and end-users, who may have a legitimate defense of fair use, are at a disadvantage because the doctrine of fair use remains underdeveloped and unclear in the realm of internet content. As such, at the current juncture, there is an imbalance between the rights of copyright owners and the rights of technology innovators and end-users, which needs to be remedied. Unfortunately, recent legislation has skewed the imbalance even further. This article argues that judges should begin to interpret the Digital Millennium Copyright Act (“DMCA”), secondary liability, and fair use doctrine to balance the strong statutory protections that copyright owners enjoy. The DMCA should cover legitimate content sharing sites as long as the sites comply with notice and takedown procedures. This article recommends changes that would benefit technological innovators and the public interest by restoring a fair balance in copyright law for innovators and users while maintaining a reasonable level of protection for content owners.
Susanna Monseau, Fostering Web 2.0 Innovation: The Role of the Judicial Interpretation of the DMCA Safe Harbor, Secondary Liability and Fair Use, 12 J. Marshall Rev. Intell. Prop. L. 70 (2012)