Introduction
The video recording of the tragic killing of George Floyd by Minneapolis police officers had an immediate and profound impact on the public. The video held essential evidentiary value in the prosecution of Floyd’s killers, as it told a very different story than what the police officers had made the situation out to be. It was by no means the first recording of police misconduct that generated significant attention from the public, but it remains among the most notable.
Now, imagine that the world had never seen the extent of this horrific incident. In this alternate universe, the video never transmitted across social media platforms and the extensive conversations around police brutality that followed simply never occurred. And what if the public never saw the video because of something as absurd as Officer Derek Chauvin playing Taylor Swift music from his own cell phone while being filmed?
As foolish as this hypothetical appears, it depicts a growing phenomenon. Police officers, attempting to prevent bystander footage from circulating online, will broadcast copyrighted music so that these recordings are more likely to be taken down from video sharing platforms due to the unauthorized use of that copyrighted music.
Copyrighted music has previously caused the disruption of public speech in other forums and has been utilized in similar ways to this current police practice. What makes this form of copyright weaponization unique (and what makes this issue particularly nuanced) is that the police are not themselves infringing. Instead, by playing music that gets captured in the bystander’s recording, the officers, creatively, are causing the bystander to infringe when the recording is inevitably posted and circulated online. This clever scheme functions, in essence, to prevent the dissemination of police recordings and to dampen police accountability activists’ voices on popular platforms. In this moment of increased calls for police accountability, it presents a chilling reality if officers can so readily evade the public eye.
There are strong policy and practical reasons for protecting the wholesale dissemination of police bystander recordings online. These recordings may very well constitute constitutionally protected speech, and they have tremendous evidentiary value. But the law currently does not prioritize these interests. The Digital Millennium Copyright Act (DMCA) enables corporate policies like YouTube’s content identification system (Content ID) to prioritize rightsholders in removing infringing content from online platforms. And while scholars have evaluated some of the fundamental flaws of these regimes in general terms, none have focused exclusively on these police recordings—whether as critical issues in their own right or as a case study on how the governing statutes and principles of copyright law online are inadequate for safeguarding speech essential to public discourse.
This Note puts forward the following arguments: (1) there are important reasons for categorically protecting bystander police recordings online from widespread claims of copyright infringement; (2) copyright law and practice cannot adequately ensure the dissemination of these recordings online; and (3) there are several potential reforms to both law and industry policy that could further promote civilian access to these recordings online. In reaching these conclusions, Part I introduces statutory copyright regimes, like the DMCA, and private copyright protection regimes, like YouTube’s Content ID program, and shows how they favor protecting the interests of rightsholders over the users of online platforms. Next, this Part offers context as to how police officers intentionally weaponize these regimes by broadcasting music while being filmed. Part I concludes with a demonstration of how these police recordings especially warrant safeguarding because of their potential First Amendment protections, as well as their practical value.
Part II primarily argues that these police recordings make for compelling fair uses under copyright law. However, the existing limitations of the fair use defense—both by its very nature and in the context of DMCA takedowns—prevent the defense from being the end-all-be-all solution to keeping police recordings online.
Finally, Part III argues for several legislative, judicial, and private sector remedies to curtail this police action and promote the dissemination of the recordings online. These recommendations include amending pertinent provisions of both the DMCA and the 1976 Copyright Act, giving greater weight to First Amendment considerations, applying a new standard of secondary liability against police officers, and recommending automation of fair use for private platforms, like YouTube. The analysis set forth in this Part demonstrates that the proposed reforms to private platforms are ultimately the most realistic and practical solutions.