Over the past decade, social media has increasingly become an essential part of Americans’ everyday lives. As of 2017, eighty percent of Americans had a profile on at least one social media platform.1 Not only has social media become extremely popular for typical users, it has also become a massive marketing tool for celebrities, athletes, politicians, and anyone looking to create and maintain a personal brand.2 As a growing number of people use social media, the chance that it will be used as a platform for copyright infringement increases.3 Social media platforms, like all service providers4 on the Internet, are regulated by the Digital Millennium Copyright Act (the “DMCA”), which addresses copyright infringement on the Internet.5 Despite the rapid evolution of social media, the DMCA has remained unchanged since its 1998 addition to Title 17 of the United States Code.6
This paper focuses on the widespread, unlicensed use of copyrighted music in both permanent social media posts (that remain on the platform indefinitely) and temporary social media posts (that expire within twenty-four hours) and asserts that the DMCA is inadequately equipped to address the development and proliferation of temporary social media posts. The DMCA has failed to police copyright infringement across many social media platforms, and in the absence of an update to the DMCA, this infringement will persist.
First, this paper establishes a framework for understanding social media by exploring three popular social media platforms that feature temporary posting: Facebook, Instagram, and Snapchat. Next, it explains the DMCA and how it is intended to regulate copyright infringement on the Internet, how the courts have applied the DMCA, and how service providers have responded to those decisions. The following section addresses how copyright infringement is regulated for both permanent and temporary posts and shows how the DMCA fails to adequately regulate the use of copyrighted music across temporary posts. The next section refutes several arguments that challenge this paper’s assertion of widespread copyright infringement. Finally, this paper posits three options for addressing this regulation gap: (1) stick to the status quo and maintain current regulation, (2) increase enforcement of existing regulations and controls, or (3) update copyright law and the DMCA by requiring content providers to actively monitor and seek out copyright infringement.
The DMCA is ill-equipped to handle social media as it has evolved today, and the result has led to widespread copyright infringement across many social media platforms. Although some social media platforms, like Instagram, have attempted to introduce features, which enable users to easily post properly licensed music, these attempts still fall short of addressing the problem.7 Either society and copyright holders must accept that these social media uses are an exception to existing copyright law, or the law must change in order to address temporary social media.