User Generated Content

User Generated Content Can Be a Boon When Utilized Effectively

The success of website-focused advertising campaigns that feature or rely on user-generated content or “UGC” such as YouTube, Dailymotion and to some extent Google’s Blogger has given companies from all over the world an interest in understanding UGC and the law Though no longer in its infancy, UGC law is a relatively new field that raises issues under copyright and trademark law, and communications law, as well as privacy and defamation law.

Issues surrounding the concept of user generated content law first surfaced in an obvious way over a decade ago with the Napster case, as Napster emerged as a major file-sharing site among users (many of whom contributed content to the service). While Napster raised issues under the Digital Millennium Copyright Act, a reform to US copyright law, claiming that it was protected by DMCAs safe harbors from infringement claims, the court ruled that Napster contributed to copyright infringement and ultimately that site was shut down. Other sites such as Morpheus, Grokster, KaZaa and Pirate Bay surfaced, raising their own content and copyright challenges

The DMCA was passed by Congress to update US copyright law for the digital age. It served in part as a mostly sensible compromise between the forces that wanted strong copyright protection of content, and the telecoms that wanted to ensure that they were not held liable for owning the “pipes” or “tubing” that carries bits and bytes of transmitted or shared content through cyberspace. The solution was to identify at least four categories of relatively innocent participants in content transmission and display, such as telecoms, search engines and websites that display user-generated content but don’t exercise much control over it, i.e., internet service providers (sometimes called online service providers) and grant them “safe harbors” from liability for copyright infringement by such content as long as they act expeditiously to remove such content once they receive an appropriate notice and takedown letter that identifies the offending content (and contains the necessary elements prescribed by the DMCA). This has led to very interesting legal challenges, such as Viacom’s landmark case against YouTube/Google, claiming that YouTube did not do enough to eliminate piracy of Viacom-owned content, such as videos of The Daily Show and Colbert Report, from its video-display site. The judge dismissed the case in June of 2010, ruling that YouTube’s expeditious removal of all content identified by Viacom in takedown notices satisfied its obligations under the DMCA.

However, video display and other websites running UGC must be careful not to run advertising alongside user generated content that is potentially infringing, since a company can lose safe harbor protection against liability if it profits from infringement. In addition, sites offering user generated content must be careful to determine how much monitoring and hand’s-on control they can apply to user-generated content without losing safe harbor protection. All such sites must have clear Terms of Use that comply with DMCA requirements.

Because of this wide range of possible legal issues, it is important for companies that base their business model on the use or generation of user-generated content e.g., encouraging users to submit and post their own on content on the company’s website, to seek expert legal counsel at the outset of the process so that they can design and direct the effort to achieve maximum effectiveness without exposing themselves to unnecessary liability.