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TechnologyDaily Mobile
Law In The User-Generated Web Era
by Andrew Noyes
The user-generated content revolution has given Internet users a regular supply of amusing home videos and prospects for social link-ups. But the online pioneers who prompted Time magazine to name "you" as the "person of the year" also have turned high-tech law on its head.
The legal landscape is littered with examples of case law in the making. In February, NBC demanded that YouTube remove a popular skit, and a Los Angeles man shown in a riot video without his permission later sued the video-sharing site. Universal Music Group threatened to sue YouTube for copyright infringement but then inked a partnership with the site. Warner Music Group, Sony BMG and CBS all announced similar deals as the site's prominence grew.
The MySpace social-networking site, which introduced filtering technology to block users from posting unauthorized audio recordings, was slapped with an infringement suit by Universal, according to John Delaney, an attorney with Morrison & Foerster.
The popularity of user-generated sites also spurred top-dollar acquisition deals. News Corp. bought MySpace for $580 million in 2005; Sony snatched the video-sharing site Grouper for $65 million this year; rumors say that Yahoo is negotiating to buy the Facebook social network; and in October, Google bought YouTube for $1.65 billion and reserved more than $200 million to cover potential copyright challenges.
Building The Business
"The bottom line here is that the user-generated content community is making a real effort to do business with and win over the content owner community," Delaney said. "These companies have become the talk of the Internet community."
Many site operators in the sector have structured their business models to take advantage of safe harbors in the Digital Millennium Copyright Act, Delaney said. Those legal protections cover the transmission and routing of content; system caching and storage; and information location tools.
Companies eligible for the exclusions must have termination policies on user infringement and must incorporate mechanisms to protect intellectual property rights. Exempted services also cannot have knowledge of or directly profit from infringing material. Once illegitimate content is discovered, sites must work expeditiously to remove the material.
But U.S. copyright laws did not envision a day when everyone would have a virtual printing press, said Gigi Sohn, the president of Public Knowledge. That has led News Corp. to the precarious post as "the hunter and the hunted."
That media multinational is a creator of valuable content and is owner of the Web's most popular social-networking site, she said. "In a lot of ways, Fox is the canary in the coal mine."
Sohn, a prominent advocate for "fair use" of copyrighted content, is worried about the fate of Internet innovators who are not backed by powerhouses like Google and News Corp. "At that point, all you've really got to rely on is the DMCA," she said. "My fear is that pre-VCR copyright laws are going to be used to bring these services down."
The ability of people to use snippets of protected works in their remixes also is not covered by current copyright regime, she said. Some in the content community "want to control every single use, no matter how incidental, no matter how fair. That's not the way the law should be."
The Defamation Decisions To Come?
Intellectual property is not the only concern. Sites like MySpace and YouTube are ripe for defamation suits or a similar tort-like cause of action because their content is frequently highly personal, said Jeffrey Neuburger, an attorney with Brown Raysman Millstein Felder & Steiner.
"As long as it's your own personal information that you're disseminating, that's fine, but when you start disseminating the personal information from others, that's a problem," he said.
Some of the most interesting cases involve non-obvious forms of user-generated content, he said. For example, in the 2003 case Carafano v. Metrosplash, an actress' fan created a phony Internet dating profile for her that included real contact information, which led to harassing telephone calls. Another case, Green v. America Online, involved a virus transmitted in an AOL chat room.
Both are frequently cited cases in the evolution of high-tech law. Neither of the service providers was found liable thanks to exemptions in the Communications Decency Act, which exempts interactive computer services from liability for the information of other content providers.
The law's broad immunity has been applied in various cases, even though some judges have questioned its scope, Neuburger said. In one recent case, the California Supreme Court upheld the law but hinted to Congress that it "may be spiraling a little bit out of control," he said. "I wouldn't be surprised if we saw an amendment to the CDA in the next year or so."
The CDA is not the answer to every sort of claim, Neuburger said. Bloggers and subscribers to video-sharing or social-networking sites can be held liable for content they create. In Banks v. Milum, a Georgia court returned a $50,000 verdict against a blogger who accused his former lawyer of delivering bribes to judges from drug dealers.
The law cannot be used to thwart criminal prosecutions or usurp state-specific statutes, Neuburger added, and it does not apply to intellectual property cases or privacy law. Despite the Carafano ruling, an online dating service is not an "information content provider" with respect to a false and defamatory profile submitted by an anonymous wrongdoer, Neuburger said. Auction sites like eBay also are not exempt with respect to feedback ratings generated by the site, he noted.
A Foggy Future
The broader theme, according to Center for Democracy and Technology Executive Director Leslie Harris, is whether the user-generated age will pressure site owners to police their pipes. That regime worked well in the file-sharing era, but countless copies of copyrighted audio or video could exist on any given user-generated site. Harris said the question is whether sites now must be scoured for everything that might violate copyright law.
When popular sites adopt such restrictive policies, competitors that are friendlier to parody, "mash-ups" and fair uses of copyrighted content will emerge, predicted CDT's John Morris. While his group supports strong copyright enforcement, he said "we think there will be some problems if copyright owners and the intermediaries go too far in blocking access."
"It is unclear how this is all going to play out, but at the end of the day I'm confident that the Internet will remain a place for innovative new Web sites," Morris added.
Web watchers, meanwhile, may start turning their sights to a new trend. ABI Research says online social communities are expected to go mobile in a big way by 2011.
Currently, about 50 million people use their handheld wireless devices to socialize online, and that number is expected to climb to 174 million, according to ABI. In the United States, operators have not put much backing behind mobile social networks, but "that's going to change rapidly," ABI Vice President Clint Wheelock said.
Gathering places such as Facebook and MySpace have "done more than bring the 'pen pal' concept into the 21st century," Wheelock said. They have created "a new paradigm for personal networking," and portables "extend the reach of electronic social interaction to millions of people who don't have regular or easy access to computers."
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