Warming Up to User-Generated Content

Conventional views of copyright law almost always operate from the “top down.” Copyrights are understood as static and fixed by the Copyright Act. Under this view, copyright holders are at the center of the copyright universe and exercise considerable control over their exclusive rights, with the expectation that others seek prior permission for all uses of copyrighted works outside of a fair use. Though pervasive, this conventional view of copyright is wrong. The Copyright Act is riddled with gray areas and gaps, many of which persist over time, because so few copyright cases are ever filed and the majority of those filed are not resolved through judgment. In these gray areas, a “top-down” approach simply does not work. Instead, informal copyright practices effectively serve as important gap fillers in our copyright system, operating from the bottom up.The tremendous growth of user-generated content on the Web provides a compelling example of this widespread phenomenon. The informal prac-tices associated with user-generated content make manifest three signifi-cant features of our copyright system that have escaped the attention of legal scholars: (i) our copyright system could not function without infor-mal copyright practices; (ii) collectively, users wield far more power in influencing the shape of copyright law than is commonly perceived; and (iii) uncertainty in formal copyright law can lead to the phenomenon of “warming,” in which—unlike chilling—users are emboldened to make unauthorized uses of copyrighted works based on seeing what appears to be an increasingly accepted practice. Although the warming phenome-non has been completely ignored in prior copyright scholarship, warming serves as a powerful counterforce to the chilling of speech, even when copyright law is uncertain.

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