Xiyin Tang (UCLA School of Law; Yale Law School) has posted “Privatizing Copyright” (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:

Much has been written, and much is understood, about how and why digital platforms regulate free expression on the Internet. Much less has been written— and even much less is understood—about how and why digital platforms regulate creative expression on the Internet—expression that makes use of others’ copyrighted content. While § 512 of the Digital Millennium Copyright Act regulates user-generated content incorporating copyrighted works, just as § 230 of the Communications Decency Act regulates other user speech on the Internet, it is, in fact, rarely used by the largest Internet platforms—Facebook and YouTube. Instead, as this Article details, creative speech on those platforms is instead governed by a series of highly confidential licensing agreements entered into with large copyright holders.

Yet despite the dominance of private contracting in ordering how millions of pieces of digital content are made and distributed on a daily basis, little is known, and far less has been written, on just what the new rules governing create expression are. This is of course, by design: these license agreements contain strict confidentiality clauses that prohibit public disclosure. This Article, however, pieces together clues from publicly-available court filings, news reporting, and leaked documents. The picture it reveals is a world where the substantive law of copyright is being quietly rewritten—by removing the First Amendment safeguard of fair use, by inserting in a new moral right for works that Congress had deemed, in the Copyright Act, ineligible for moral rights protection, and, through other small provisions in the numerous agreements digital platforms negotiate with rightsholders, influencing and reshaping administrative, common, and statutory copyright law. Further still, recent changes or lobbied-for changes to copyright’s statutory law seek to either enshrine the primacy of such private contracting or altogether remove copyright rule-making processes from government oversight, shielding copyright’s public law from independent considerations of public policy and public scrutiny.

Changing copyright’s public law to enshrine the primacy of such private ordering insulates the new rules of copyright from the democratic process, from public participation in, and from public oversight of, the laws that shape our daily lives. Creative expression on the Internet now finds itself at a curious precipice: a seeming glut of low-cost, or free, content, much of which is created directly by, and distributed to, users—yet increasingly regulated by an opaque network of rules created by a select few private parties. An understanding of the Internet’s democratizing potential for creativity is incomplete without a concomitant understanding of how the new private rules of copyright may shape, and harm, that creativity.