Government investigations and public scrutiny of Big Tech are at an all-time high. While current legal scholarship and government focus have centered overwhelmingly on whether and how antitrust law and § 230 of the Communications Decency Act can be revised to address platform dominance, scant attention has been paid to another, almost unseen attempt to regulate Big Tech: copyright law. The recent adoption in Europe of Article 17 of the Copyright Directive, which holds internet platforms liable for user-generated creative content unless they obtain costly content licenses, is the most direct example of such regulation—and may serve as precedent for similar changes to U.S. law. Meanwhile, before the courts and in the executive branch, copyright holders are increasingly harnessing anti–Big Tech sentiment to advocate for everything from weakening fair use doctrine to terminating long-standing government oversight of certain concentrated content holders.
As recent scholarship laments the role that copyright minimalism played in the meteoric ascent of large technology platforms, this Article argues that increasing copyright protection will not combat monopolies. The seemingly compelling public narrative that laws must be rewritten to combat power by any means necessary ignores the uniqueness of copyright markets as ones dominated not by diffuse, weak licensors bargaining with technology giants, but instead by large, oligopolistic content conglomerates. Changes in copyright laws that increase the cost of content licenses fail to address, and indeed will only enrich, the long-standing dominance of traditional content licensors. They will also entrench and concentrate licensees, creating a bilateral oligopolistic market for copyrighted works. And such changes will, ultimately, hasten the obsolescence of the very content industries that advocated for these reforms, as today’s licensees evolve to become tomorrow’s licensors. This Article concludes that to fight monopoly, to be truly neo-Brandeisian, one must think beyond copyright law.
