When Curation Becomes Creation: Algorithms, Microcontent, and the Vanishing Distinction between Platforms and Creators

Abstract: Ever since social activity on the Internet began migrating from the wilds of the open web to the walled gardens erected by so-called platforms, debates have raged about the responsibilities that these platforms ought to bear. And yet, despite intense scrutiny from the news media and grassroots movements of outraged users, platforms continue to operate, from a legal standpoint, on the friendliest terms. Under the current regulatory framework, platforms simultaneously benefit from: (1) broad discretion to organize (and censor) content however they choose; (2) powerful algorithms for curating a practically limitless supply of user-posted microcontent according to whatever ends they wish; and (3) absolution from the sorts of liability born by creators of the underlying content. In this paper, we contest the very validity of the platform-creator distinction, arguing that it is ill-adapted to the modern social media landscape where, in a real sense, platforms are creating derivative media products. We argue that any coherent regulatory framework must adapt to this reality, recognizing the subtle continuum of activities that span the curation-creation spectrum, providing a finer system of categorization and clearer guidance for precisely when platforms assume the responsibilities associated with content creation.