As technology continues to offer us new ways to connect and share information, how do new platforms jive with the system set up in 1998 by Congress to enable copyright owners to protect their property on the Internet?
Not well, it turns out. Let’s look at Snapchat, the hottest messaging app that ever slapped a flower crown on a selfie.
Snapchat has a lot going for it, not the least that its structure of limiting both anonymity and public commentary seems to make it a kindler, gentler world than Facebook or Twitter. You cantankerous uncle won’t find an audience for his contrarian views here, should he even be hip enough to know what Snapchat is. Instead, you get quick, silly snapshots of your friends’ days, glimpses that disappear within seconds of viewing. You can respond directly – or not – and your response disappears after viewing as well. The longest anything remains on Snapchat is a 24 hours, when a user or brand choses to post something to a public slideshow Snapchat calls a story.
It’s bad for scheduling meet-ups, or anything else that needs a record to review, but great for spontaneous interactions.
It also lets you superimpose a dancing hot dog on your cat, for some reason. What a time to be alive!
However, as great an app as it is, it poses unique challenges for artists wanting to protect their work from being used without their permission.
First, some numbers. Snapchat claimed 100 million users, 10 billion videos a day, and 350% growth in 2015. Famously famous celebrity Kylie Jenner, rumored to be Snapchat’s most-followed account, purports to have 10 million followers. Snapchat does not make follower numbers public, although it does assign an obscure user score to each account (hello, 631!), so there’s no way to verify, but let’s just say that accounts like Kylie have huge followings.
I’ve monitored Kylie’s account, for which I should be given hazard pay. She posts multiple snaps a day, usually video. There are shots of her vamping using a Snapchat filter than imposes puppy ears on your head, shots of her vamping showing off her posterior, shots of her vamping pouting her lips, you get the idea. There are literally thousands of shots.
Interspersed with all this, she runs ads for her self-branded products and also for other products. Brands often pay celebrities to post their products in social media, just to make the brand seem cool. It is also possible she gets a cut of the ad that rolls at the end of her series of posts. Good for her. There’s nothing against making an honest, if vampy, buck. All this to say, for accounts like Kylie Jenner, Snapchat is an element of commercial enterprise and brings in big money for both the poster and the platform.
So what if you are a songwriter or recording artist and a big account posts a video promoting a product and using your song? A copyright owner would expect to license a song for such advertising, for decent money.
But if there was no license, how would the DMCA enable a creator to protect their property on the Snapchat platform? Snapchat has some inherent problems that only show how the DMCA continues to be ineffective as the Internet continues to evolve.
Snapchat Infringement is Invisible to Web Searches. When looking for infringement, copyright owners search the web, either manually or with automated web crawlers, for their image, song, or video. However, Spanchat is entirely phone to phone. Snaps never hit the web and are therefore not indexed on the web the way tweets, Instagram posts, or Facebook posts are (although these may be protected by privacy settings on the web). That snap that went out to millions of people would never be visible to a web search tool. That means that copyright owners must actually monitor these accounts and not rely on their primary tool of web crawling. This of course takes even more time and resources than searching the web and monitoring techniques have yet to catch up.
Disappearing Snaps Make Finding Infringement Extremely Difficult: One of the most important features of Snapchat is that snaps disappear quickly. In the case of stories, they disappear 24 hours after they are posted. That means if you are monitoring for infringement, you have to check every single day to catch it. There is no record of it after 24 hours, so you have no way of knowing if your material was infringed a day or two ago. That is a big burden to put on copyright owners, most of whom don’t spend time every day looking for infringement.
A natural response is to think that the disappearing nature of the infringement means that the infringement is minimal and not worth worrying about, but that doesn’t hold up on examination. A television commercial disappears after 30 seconds of watching, but we still expect music and images to be licensed for advertising that goes out to millions, indeed, especially for advertising that goes out to millions.
There is No URL to give to Snapchat. Courts have interpreted the DMCA to require people giving a takedown notice to provide actual notice of the infringement by providing a URL where the infringing content is located. Snapchat does not have URLs, so it is unclear what type of description or notice would constitute actual notice in this context. Is saying “User SuperCoolMama posted a snap with my song “Cool Mama Diddy Bama” at 1:17 on Tuesday” enough? Case law is unclear.
TakeDown Notice Does Not Provide a Remedy: Because of the disappearing nature of the snaps, if infringement occurs, it’s naturally going to be removed anyway. This is different than YouTube or Facebook where creators send a takedown request for something that is more or less permanently posted. In a case of piracy or YouTube infringement, a quick removal does provide a remedy of sorts, when it actually occurs. But in my advertising snap hypothetical, the damage is done once the audience sees the offending snap.
Under case law, platforms are required to take down infringing content in a timely manner, but no court has yet said that taking down infringing content within 24 hours does not meet that standard. Therefore, Snapchat really doesn’t have to do much to comply with a takedown request to retain the safe harbor the DMCA gives platforms in dealing with user-generated infringement. By the time the infringing snap is found, the takedown notice sent, and Snapchat responds, the problem is moot. In other words, Snapchat can only benefit from infringing content posted by users and, under current law, has very little exposure to liability.
Of course, a copyright owner can still pursue the user for infringement, if they managed to find it. In my hypothetical of a big user posting content that is clearly commercial, that would make sense. However, as we’ve found in other platforms, for every big user posting something commercially, there are thousands of other infringements where legal action may not recover damages to cover cost of the action.
The logic of the DMCA was to give platforms an incentive to innovate while also giving them an incentive to reign in user infringement to some degree. The innovation is certainly happening with amazing platforms like Snapchat, but that very innovation may be removing what incentive remains for the platform to act against infringement.
I enjoy Snapchat almost daily. Their cooking videos are captivating. From what I can tell, their professional content providers, mostly well-known names like Daily Mail, BuzzFeed, and The Washington Post, have honored intellectual property rights in creating their addictive stories, quizzes, and videos.
Yet as the DMCA stretches to cover platforms that were never even contemplated when it was written in 1998, it only goes to show how much a serious update is needed.
In my next social media copyright post I’ll ask the question, “Can the flower crown be copyrighted?”
This post was updated at 5:58 on 9/1/17 to include the URL point and the words “Cool Mama Diddy Bama.”
About the Author: Rebecca Cusey is a writer and lawyer (pending bar passage results!). She graduated cum laude from Antonin Scalia Law School at George Mason University in May 2017 where she focused on Intellectual Property. She lives near Washington, DC with her adorable husband and dashing children.
Follow Rebecca on Twitter: @Rebecca_Cusey