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Meet Your New Overlords: How Digital Platforms Develop and Sustain Technofeudalism
Much has been written about the free speech quasi-jurisprudence being developed by social media platforms through content moderation policies unconstrained by constitutional limits. This Article focuses on a specific subset of that content moderation—namely, the takedown of user-generated content in the name of copyright enforcement. This Article argues that the unlimited power of online platforms to regulate access to user-generated content through antipiracy algorithms leads to three perverse outcomes. First, the removal of lawful content falsely flagged as “infringing” results in the suppression of legitimate speech and a reduction in the diversity of online discourse. Second, the erosion of lawful exceptions and limitations to copyright protection through algorithmic adjudication alters the fundamental social contract established by copyright legislation, displaces decades of carefully developed fair use jurisprudence, and transfers adjudicatory power from courts to corporations. Third, the monetization of user-generated content not by users, but by copyright owners (following the flagging of content as “infringing”), is symptomatic of a broader, systemic exploitation of users that is occurring on digital platforms, also known as “technofeudalism.
Contracting as a Class
Contract law is stuck in a loop of path dependency and stale precedent. Its metaphors, like “the meeting of the minds,” are today laughably implausible. Its values, like “consent,” have been stripped of any real meaning. No one reads or understands the overwhelming majority of contracts to which they agree. And no one should. Reading them is meaningless, because it simply does not matter what they say. Individuals must agree to them – indeed, are effectively forced to agree to them – if they wish to participate in the modern world.
Modern digital contracting is not a collaborative process. Today, most “contracting” involves merely browsing a website or clicking “yes” to agree to endless streams of unread boilerplate. Contracting now largely consists of a party in a superior bargaining position dictating terms to a weaker party.
To the extent the law has evolved to deal with the scale and complexity of the digital era, its focus has been on putting parties on notice of contract terms. However, we already know, at least in a vague sense, the terms of our “bargain.” The real issue is power – we knowingly accept onerous terms because we lack the power to do anything else.
This Article seeks to revitalize the digital contracting process. It outlines the infrastructure necessary to facilitate class contracting between corporate entities, particularly Big Tech companies, and their users. Granting individuals the ability to engage in class contracting will improve the wellbeing of billions of individuals. It will facilitate meaningful communication, enable the collaborative development of shared priorities, and restore a vital balance to the modern contracting process