The curation safe-harbor question §512 has not answered

Two descriptions of one feed

A modern feed is not a folder. It is a ranked, personalized sequence a platform assembles from a signal set it designs: watch time, engagement, recency, predicted retention. The platform decides what surfaces, to whom, and in what order. In the speech-regulation context, platforms have argued exactly this. In Moody v. NetChoice (2024), the Supreme Court accepted that a platform’s choices about how to compile and present third-party content can be expressive activity, comparing curated feeds to a newspaper’s editorial judgment about what to print. The platforms wanted that characterization, and for First Amendment purposes they largely got it.

Copyright’s safe harbor describes the same feed differently. Section 512(c) of the DMCA shields a service provider from monetary liability for infringement “by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” The phrase is doing real work. The protected conduct is storage, and the storage must be at the direction of a user, as the statutory text makes plain. The statute was drafted in 1998 for a service that held files a user chose to upload and served them back when someone asked. It was not drafted for a system that decides, on its own signals, which of those files to amplify to millions.

Where the statute already draws a line

Section 512(c) is not unconditional even on its own terms. The provider loses the shield if it has actual knowledge or is aware of facts making infringement apparent and fails to act, or if it “receives a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity.” Courts have read “right and ability to control” narrowly, but the line was drawn against the backdrop of passive hosting. A system that actively selects and promotes specific clips to specific audiences is a different factual object than the file server Congress had in mind, and the “at the direction of a user” limitation was construed before feeds worked the way they work now.

Contributory-liability doctrine sharpens the same question. In MGM Studios v. Grokster (2005), the Court held that a distributor who takes affirmative steps to foster infringement can be liable regardless of a product’s lawful uses. The question courts have not answered is what “affirmative steps” means when the step is an algorithm that decides, without a human in the loop, to push an unlicensed clip because it predicts high retention. That is not the sorting of a passive host. Whether it is also the “storage at the direction of a user” the safe harbor protects is unsettled as applied to algorithmic amplification.

Why the tension is not going away

The two lines of authority are being extended at the same time. Platforms have a strong, recent incentive to describe ranking as their own expression, because that framing helps defeat state laws that would compel or forbid certain moderation. But a characterization a platform advances to win one case does not vanish in the next. If a feed is editorial judgment for First Amendment purposes, a rights holder can fairly ask why the same judgment is merely a user’s storage decision for copyright purposes. Courts have not had to answer that in a copyright case with a fully developed record on modern ranking, and the two doctrines have not been made to speak to each other.

Congress and the Copyright Office have both signaled the ground is not fixed. The Office’s 2020 Section 512 study concluded that the balance Congress struck in 1998 has “tilted askew” and that judicial interpretation had, in places, drifted from the text. The study did not resolve the curation question, but it is a public acknowledgment from the agency closest to the statute that the safe harbor’s boundaries are contested rather than settled. As courts extend platform-responsibility doctrine case by case, this is the seam most likely to be tested next.

What this means for rights holders

The practical point is not that any theory wins. It is that the factual record matters, and the record is created upstream of any dispute. A notice-and-takedown process under §512 is where facts about a platform’s knowledge and conduct get documented, and those facts are what a court would eventually weigh if the curation question is litigated. We explain the mechanics of that system in our walkthrough of the DMCA’s notice framework, and we cover how the knowledge and control elements have played out in provider-liability disputes in our read of provider-liability doctrine after Cox v. Sony. Neither post treats the safe harbor as closed, because it is not.

The honest answer today is that the question is open. A feed that a platform calls its own expression in one courtroom, and a user’s storage in another, is a contradiction the law has not yet been forced to resolve. When it is, the dispute will turn on a factual record built long before anyone files: who owned the clip, how it was cleared, and exactly how the platform’s own system surfaced and amplified it. The clearer that record, the easier it is for a court to see whether a ranked feed looks more like editorial expression or more like storage at a user’s direction.