Even before "Blurred Lines," this was a difficult fair use question to answer, with lots of chewy nuances. Just ask George Harrison:

https://en.wikipedia.org/wiki/My_Sweet_Lord

But as the Engelberg panel's cohort of dueling musicologists and renowned copyright experts proved, this question only gets harder as time goes by. If you listen to that panel (if you *can* listen to that panel), you'll be hard pressed to come away with any certainty about the questions in this latest lawsuit.

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The notice-and-takedown system is what's known as an "intermediary liability" rule. Platforms are "intermediaries" in that they connect end users with each other and with businesses. Ebay and Etsy and Amazon connect buyers and sellers; Facebook and Google and Tiktok connect performers, advertisers and publishers with audiences and so on.

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For copyright, notice-and-takedown gives platforms a "safe harbor." A platform doesn't *have* to remove material after an allegation of infringement, but if they don't, they're jointly liable for any future judgment. In other words, Youtube isn't required to take down the Engelberg Blurred Lines panel, but if UMG sues Engelberg and wins a judgment, Google will also have to pay out.

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During the adoption of the 1996 WIPO treaties and the 1998 US DMCA, this safe harbor rule was characterized as a balance between the rights of the public to publish online and the interest of rightsholders whose material might be infringed upon. The idea was that things that were likely to be infringing would be immediately removed once the platform received a notification, but that platforms would ignore spurious or obviously fraudulent takedowns.

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That's not how it worked out. Whether it's Sony Music claiming to own your performance of "Fur Elise" or a war criminal claiming authorship over a newspaper story about his crimes, platforms nuke first and ask questions never. Why not? If they ignore a takedown and get it wrong, they suffer dire consequences ($150,000 per claim). But if they take action on a dodgy claim, there are *no* consequences. Of *course* they're just going to delete anything they're asked to delete.

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The First Amendment makes it very hard to get a libel judgment, and even when these judgments are secured, damages are typically limited to "actual damages" - generally a low sum. Most of the worst online speech is actually *not* illegal: hate speech, misinformation and disinformation are all covered by the First Amendment.

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Notwithstanding the First Amendment, there *are* categories of speech that US law criminalizes: actual threats of violence, criminal harassment, and committing certain kinds of legal, medical, election or financial fraud. These are all exempted from Section 230, which only provides immunity for *civil* suits, not criminal ones.

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What Section 230 really protects platforms from is being named to unwinnable nuisance suits by unscrupulous parties who are betting that the platforms would rather remove *legal* speech that they object to than go to court. A generation of copyfraudsters have proved that this is a very safe bet:

https://www.techdirt.com/2020/06/23/hello-youve-been-referred-here-because-youre-wrong-about-section-230-communications-decency-act/

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In other words, if you made a #MeToo accusation, or if you were a gig worker using an online forum to organize a union, or if you were blowing the whistle on your employer's toxic waste leaks, or if you were any other under-resourced person being bullied by a wealthy, powerful person or organization, that organization could shut you up by threatening to sue the platform that hosted your speech. The platform would immediately cave.

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But those same rich and powerful people would have access to the lawyers and back-channels that would prevent you from doing the same to them - that's why Sony can get your Brahms recital taken down, but you can't turn around and do the same to them.

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