Assessing the Efficacy of Third-Party Liability Copyright Doctrines Against Platforms That Host AI-Generated Content

In an online landscape where algorithm-driven social media platforms host millions of users that create, post, or interact with material that is infringing on its face, the Digital Millennium Copyright Act (DMCA) is failing. In 1998, Congress passed the DMCA to address emerging methods of copyright infringement that accompanied the public’s use of the internet and other technologies. The DMCA shields online service providers (OSPs) from liability for a user’s infringement so long as the OSP enacts the prescribed reporting mechanism for copyright holders to remove infringing content online. Now, copyright holders face another significant challenge: generative AI systems have emboldened its users with unprecedented opportunities and abilities to infringe, while certain OSPs circulate––and thus, promote––AI-generated, infringing derivative content. To demonstrate this tension, this Note discusses Universal Music Group’s removal of its catalog from TikTok’s platform and evaluates the efficacy of third-party liability copyright doctrines. This Note argues that the doctrinal ambiguities of contributory infringement and inducement render them ill-equipped to confront the rapid creation and dissemination of AI-generated content online. Instead, this Note contends that vicarious liability, having clearly articulated doctrinal elements, enables creators to enforce their copyrights against OSPs, which in turn, incentivizes OSPs to undertake proactive measures to mitigate user-infringement. This Note also discusses the European Union’s Digital Services Act and AI Act and asserts that these Acts fairly distribute legal responsibilities that effectively enforce copyright without impeding the public’s access to helpful technologies. As the United States articulates an AI legislative framework, this Note proposes that OSPs should use the elements of vicarious liability as an applicable threshold to gauge their potential liability in their pursuit of innovation.