24 Wake Forest J. Bus. & Intell. Prop. L. 53.
Around a billion people visit social media sites daily, passively scrolling, viewing content, and posting. However, for a select group, the reactive masses are valuable audience members that could provide monetary gains beyond most of society’s wildest dreams. For example, two prominent, “Chinese live-streamers, Li Jiaqui and Viya,” in a single day sold “$3 billion worth of goods” on social media. Commonly referred to as “influencers,” these ordinary individuals use their relatability and effect over devoted social media followers to endorse and sell goods for companies, brands. The undeniable potential of social commerce and influencer advertisements has led the United States to spend around $232.7 billion on digital ads in 2022, and given influencer marketing an estimated market growth to an astounding $21.1 billion for 2023. However, as brands take advantage of the financial gains promised from online advertising, their entrance into the digital world may have thrusted them into the intricate debate over secondary liability for online copyright infringement.
The internet, particularly social media sites, is a playground for copyright infringement, with millions of direct infringement occurring year after year on a single site. To fight against internet infringement, copyright owners sought to hold internet sites liable under the effective, precedential doctrines of secondary liability for copyright law. However, Congress enacted the Digital Millennium Copyright Act (DMCA) in 1998, granting “online service providers” (OSPs) powerful “safe harbors” from these common law doctrines. Since its enactment, the consequences of the DMCA on copyright infringement liability continues to be deliberated. However, in the 2022 cases, two unpublished decisions from the United States District Court for the Southern District of Florida may have changed the current legal landscape with its discussion on how brands use of influencers falls into the precedent of secondary liability for copyright law.