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But when it comes to free expression, the role that notice-and-takedown and filternets play in the creative industries are really a sideshow. In creating a system of no-evidence-required takedowns, with no real consequences for fraudulent takedowns, these systems are huge gift to the world's worst criminals.
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For example, "reputation management" companies help convicted rapists, murderers, and even *war criminals* purge the internet of true accounts of their crimes by claiming copyright over them:
https://pluralistic.net/2021/04/23/reputation-laundry/#dark-ops
Remember how during the covid lockdowns, scumbags marketed junk devices by claiming that they'd protect you from the virus?
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Their products remained online, while the scientific articles warning people were speedily removed through bad copyright claims:
https://pluralistic.net/2021/10/18/labor-shortage-discourse-time/#copyfraud
Copyfraud - false copyright claims - is an extremely safe crime to commit, and it's not just quack covid remedy peddlers and war criminals who avail themselves of it. Tech giants like Adobe do not hesitate to abuse the takedown system, even when that means exposing millions of people to spyware:
https://pluralistic.net/2021/10/13/theres-an-app-for-that/#gnash
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Dirty cops play loud, copyrighted music during confrontations with the public, in the hopes that this will trigger copyright filters on services like Youtube and Instagram and block videos of their misbehavior:
https://pluralistic.net/2021/02/10/duke-sucks/#bhpd
But even if you solved all these problems with filternets and takedown, this system would still choke on fair use and other copyright exceptions.
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These are "fact intensive" questions that the world's top experts struggle with (as anyone who watches the Blurred Lines panel can see). There's no way we can get software to accurately determine when a use is or isn't fair.
That's a question that the entertainment industry itself is increasingly conflicted about.
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The Blurred Lines judgment opened a floodgate to a new kind of troll - grifters who sued the record labels and their biggest stars for taking the "vibe" of songs no one ever heard of. Musicians like Ed Sheeran have been sued for millions over these alleged infringements. These suits caused the record industry to (ahem) change its tune on fair use, insisting that fair use should be broadly interpreted to protect people who made things that were similar to existing works.
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The labels understood that if "vibe rights" became accepted law, they'd end up in the kind of hell that the rest of us enter when we try to post things online - where anything they produce can trigger takedowns, long legal battles, and millions in liability:
https://pluralistic.net/2022/04/08/oh-why/#two-notes-and-running
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But the industry remains *deeply* conflicted over fair use. Take the curious case of Katy Perry's song Horse," which attracted a multimillion-dollar suit from an obscure Christian rapper who claimed that a brief phrase in "Dark Horse" was impermissibly similar to his song "A Joyful Noise."
Perry and her publisher, Warner Chappell, lost the suit and were ordered to pay $2.8m. While they subsequently won an appeal, this definitely put the cold grue up Warner Chappell's back.
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They could see a long future of similar suits launched by treasure hunters hoping for a quick settlement.
But here's where it gets unbelievably weird and darkly funny. A Youtuber named Adam Neely made a wildly successful viral video about the suit, taking Perry's side and defending her song. As part of that video, Neely included a few seconds' worth of "A Joyful Noise," the song that Perry was accused of copying.
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In court, Warner Chappell had argued that "A Joyful Noise" was *not* similar to Perry's "Dark Horse." But when Warner had Google remove Neely's video, they claimed that the sample from "Joyful Noise" *was actually taken from "Dark Horse."* Incredibly, they maintained this position through multiple appeals through the Content ID system:
https://pluralistic.net/2020/03/05/warner-chappell-copyfraud/#warnerchappell
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In other words, they maintained that the song that they'd told a court was totally dissimilar to their own was so indistinguishable from their song that they couldn't tell the difference!
Now, this question of vibes, similarity and fair use has only gotten *more* intense since the takedown of Neely's video. Just this week, the RIAA sued several AI companies, claiming that the songs the AI shits out are infringingly similar to tracks in their catalog:
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