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Sawyer on User Generated Content & the DMCA

By Lawrence Solum

Michael S. Sawyer (Berkeley Center for Law & Technology) has posted Filters, Fair Use, and Feedback: User-Generated Content Principles and the DMCA (Berkley Technology Law Journal, Forthcoming) on SSRN. Here is the abstract:

As Web 2.0 matures, the copyright policing burden is shifting from copyright owners to user-generated content (UGC) sites. UGC sites are implementing copyright filters to remove potentially infringing content even though these filters are largely incapable of accommodating fair use. This note surveys the relevant technical and legal background and demonstrates several ways in which technology has outpaced the law. It examines two recent proposals for addressing copyright and fair use, the UGC Principles and EFF Fair Use Principles. This note explains why copyright filters cannot accommodate fair use, and describes why the risk-averse nature of large companies in the industry may lead to expansion of copyrights and contraction of the safe harbors through feedback loops. The note recognizes that there are actually two policing burdens, the technological burden to identify potentially infringing content and the human burden to evaluate fair use of potentially infringing content, and surveys obstacles to establishing a two-stage policing system.

Full post as published by Legal Theory Blog on March 30, 2009 (boomark / email).