Meet Your New Overlords: How Digital Platforms Develop and Sustain Technofeudalism

Abstract

Much has been written about the free speech quasi-jurisprudence being developedby social media platforms through content moderation policies unconstrained byconstitutional limits. This Article focuses on a specific subset of that contentmoderation—namely, the takedown of user-generated content in the name ofcopyright enforcement. This Article argues that the unlimited power of onlineplatforms to regulate access to user-generated content through antipiracy algorithmsleads to three perverse outcomes. First, the removal of lawful content falsely flaggedas “infringing” results in the suppression of legitimate speech and a reduction in thediversity of online discourse. Second, the erosion of lawful exceptions andlimitations to copyright protection through algorithmic adjudication alters thefundamental social contract established by copyright legislation, displaces decadesof carefully developed fair use jurisprudence, and transfers adjudicatory power fromcourts to corporations. Third, the monetization of user-generated content not byusers, but by copyright owners (following the flagging of content as “infringing”), is symptomatic of a broader, systemic exploitation of users that is occurring on digitalplatforms, also known as “technofeudalism.”