Smith on Weaponizing Copyright

Cathay Smith (The University of Montana Alexander Blewett III School of Law) has posted “Weaponizing Copyright” (35 Harvard Journal of Law & Technology (Forthcoming)) on SSRN. Here is the abstract:

Copyright grants authors exclusive rights in their works in order to encourage creation and dissemination of socially valuable works. It permits copyright owners to assert their copyright against violations of those rights when necessary to protect their market exclusivity and economic interests. Increasingly, however, copyright is being used by individuals to achieve other objectives. This Article examines the increasingly widespread phenomenon of individuals using copyright to vindicate noncopyright interests, which this Article refers to as “weaponizing copyright.” In some cases, copyright is weaponized to silence criticism and legitimate speech. In other instances, the objective is to erase facts and make information disappear. Some assertions of copyright are intended to punish or retaliate for some perceived wrongdoing. Other assertions of copyright involve attempts to protect the reputation and dignity of copyright owners. Another objective is to protect privacy in personal and intimate information. In none of these scenarios are copyright owners seeking to protect their legitimate market or economic interests in their copyrighted works, the intended purpose of copyright.

Through exploring recent and high-profile instances of copyright weaponization involving Harvey Weinstein and Ronan Farrow, Pepe the Frog and InfoWars, Success Kid and Steve King, Navy SEALS and the Associate Press, PewDiePie, Dr. Dew, the McCloskeys, Netflix Films, Jehovah’s Witnesses, and others, this Article exposes the increasingly widespread practice of copyright weaponization. It explains how copyright became the weapon par excellence for individuals to punish, erase, suppress, protect, and vindicate noncopyright interests, and why individuals choose to weaponize copyright instead of pursuing claims under other laws. It also pushes back on the frequently accepted presumption that weaponizing copyright is always harmful and must be discouraged by exploring the power dynamics and blurry lines between weaponization by aggressors to punish, erase, suppress, and weaponization by the vulnerable to protect, preserve, and defend. Ultimately, this Article attempts to resolve two important questions: whether copyright should serve to protect some noncopyright interests but not others, and whether there is a fair and just way to manage the increasingly pervasive practice of copyright weaponization.


Guggenberger on The Essential Facilities Doctrine in the Digital Economy: Dispelling Persistent Myths

Nikolas Guggenberger (Yale University – Yale Information Society Project; Harvard University – Berkman Klein Center for Internet & Society) has posted “The Essential Facilities Doctrine in the Digital Economy: Dispelling Persistent Myths” (Yale Journal of Law & Technology, forthcoming) on SSRN. Here is the abstract:

The antitrust ‘essential facilities’ doctrine is reawakening. After decades of rejection and decline, the doctrine’s approach of granting access rights to facilities for which there is no reasonable alternative in the market has received several high-profile endorsements across the political spectrum. While courts have mainly applied the doctrine to physical infrastructure, its potential now lies in addressing the gatekeeping power of online platforms. However, despite its recent endorsements, the doctrine’s criticism from the past decades lingers. Many of the objections to the essential facilities doctrine are fueled by persistent myths and misconceptions, most prominently related to the doctrine’s economic justification, its administrability, and its propensity to entrench monopoly power. This Essay addresses these common objections and paves the way for the much-needed application of the essential facilities doctrine to the digital economy.