Litigation

I Tube, You Tube, We All Tube: Avoiding liability for user-generated content

By Matt Hedberg

Thanks to the rapid growth in the public's desire and ability to communicate through the internet, publication of User Generated Content ("UGC") has exploded.  Companies such as YouTube and MySpace are among the businesses that have capitalized on the distribution of online content by the internet audience.  But the use of UGC by companies doing business online can raise difficult legal issues.  Three such issues are copyright infringement, defamation, and violation of privacy rights.

Copyright infringement includes direct infringement, contributory infringement, and vicarious infringement.  Key elements of liability include knowledge of the infringing activity, inducement or contribution to the infringing conduct, and attaining a direct financial interest in the infringing activity when there is an ability to supervise the direct infringer.  Two significant cases alleging copyright infringement as a result of UGC are pending against YouTube (Viacom Intl., Inc. v. YouTube, Inc.) and MySpace (UMG Recordings Inc. v. MySpace Inc.).  These cases may provide an opportunity for the courts to analyze the safe harbor provisions of the Digital Millennium Copyright Act (DMCA),17 U.S.C. sec. 512, specifically section 512(c), which applies to user-directed storage of material on a system.

Defamation is a potential consequence of allowing UGC to be posted on a company's website.  The Communications Decency Act ("CDA") provides tort immunity to internet service providers in certain situations.  While this immunity provision is broad, it has its limits.  To read our earlier coverage of a recent CDA case in which the Ninth Circuit did not shield an on-line service as a result of UGC, click here.

Publication of UGC content can also implicate privacy and publicity rights as a result of the unauthorized use of photos and other media protected by privacy laws.  Common claims for damages include causing embarrassment and damage to reputation.

To minimize liability for the use of UGC, companies should be vigilant about complying with the requirements of the DMCA Section 512(c) safe harbor provision.  Companies utilizing UGC should also seek out licenses from content owners and use comprehensive click-wrap agreements to which  submitting users must agree.  Examples of such agreements can be found on YouTube and MySpace.  Finally, companies choosing to use UGC on their websites should conduct routine scrutiny of the UGC content to ensure liability exposure is minimized.

Full post as published by Northwest Business Litigation Blog on April 08, 2008 (boomark / email).