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YOU TUBE, MYSPACE AND THE
USER GENERATED CONTENT REVOLUTION:
KEY LEGAL ISSUES AND POTENTIAL
LIABILITY
Ashlie Beringer
Gibson, Dunn & Crutcher LLP
[email protected]
Overview
What is user generated content?
Legal issues
• Copyright
– DMCA “Safe Harbor”
• Defamation & other torts
– §230 Immunity
• Criminal statutes & governmental investigations
• Response to process
– Press shield laws
What is User Generated Content
(“UGC”)?
• Content produced or submitted by end users, not
professional media producers (e.g. journalists,
photographers, studios)
• Includes digital video, blogs, social networking
profiles, podcasts, user feedback and ratings,
gossip, mobile phone photography and “wikis”
• More than 82 million people created UGC in the
US alone in 2008.
Examples
“Web 2.0”
Web 1.0
Web 2.0
Software Access
Browser
Browser; RSS reader;
AJAX
Hardware Access
Personal Computer
PC; mobile computing
Coder
Professional
Everyone
Content
Static
Dynamic
Geeks
CS majors
Everyone!
Pay authors for content? Yes
No
Access
Generally Free
Pay (AOL)/Free
Copyright Infringement and
DMCA Safe Harbor
Copyright Infringement
Theory of
Infringement
Standard
Who?
Sue?
Direct
Reproducing, modifying, distributing, publicly
performing or publicly displaying a copyrighted work
without the copyright owner’s permission
Those who
upload/download
Rarely; not economically
viable target
Contributory
If knowledge of the infringing activity, one who
induces or materially contributes to the infringing
conduct of a direct infringer
Those who facilitate
the upload/download
Yes; economically viable
target
~or~
Distribution of a product used to infringe, if the
product does not have substantial or commercially
significant non-infringing uses
Vicarious Liability
If right and ability to supervise the direct infringement
and a direct financial interest in the exploitation of the
copyrighted work
DMCA Safe Harbors
Purpose: “[T]o facilitate the robust development and world-wide expansion of
electronic commerce, communications, development, and education in the digital
age” (Senate Rep. 105-90).
Safe Harbors limit infringement liability for Online Service Providers (OSPs)
that:
§ 512(a): provide transitory digital network communication;
§ 512(b): cache information;
§ 512(c): store information on systems or networks at the direction
of users; and/or
§ 512(d) provide information location tools.
OSP = “A provider of online services or network access, or the operator of facilities
therefore”
If OSP satisfies criteria for safe harbor  protection against civil liability for
infringement
Eligibility for § 512(c) Safe Harbor
Knowledge (§512(c)(1)(A)(i)-(iii))
•
No actual knowledge
•
Not aware of facts or circumstances from which infringing activity is apparent
• When made aware, must act expeditiously to remove or disable access
Control & Financial Benefit ((§512(c)(1)(B))
• If OSP has “the right and ability” to control infringing activity, the OSP must not receive “a
financial benefit directly attributable to the infringing activity.”
Accommodation of “standard technical measures” (§512(i)(1)(B))
Procedures
• OSP must designate an agent for service & register the agent with the Copyright Office
(§512(c)(2))
• Must maintain a policy for termination of accounts of repeat infringers & inform users of the
policy
(§ 512(i)(1)(A))
• Must comply with notice & takedown and counter notice & takedown procedures (§512(g))
Notice & Takedown  §512(g)
Copyright owner (or its agent) must send a written notice, which must:
1)
2)
3)
identify the work and location of the copyrighted work with reasonable specificity;
include contact information for the complaining party;
include a sworn statement that the complaining party is authorized to act on behalf of the
copyright owner;
4) include a physical or electronic signature of the owner or its authorized representative;
5) statement of good faith belief that use of the material is not authorized by the copyright
owner, its agent, or the law.
Upon receipt of compliant notification  OSP must take down or disable access to
material and take reasonable steps notify the user. (Perfect 10 v. CCBill, 9th Cir.
2007)(requirement that notice be compliant construed strictly).
Good Faith §512(f)
Holden Lenz
Prince
Lenz v. Universal Music Corp. (N.D. Cal. 2008)
Copyright owner must consider fair use in formulating a good faith belief that the use of the material
is not authorized by the owner, agent, or the law. A takedown notice sent by an owner or agent who
fails to consider fair use will entitle the alleged infringer to recover damages, costs & attorneys fees.
Counter Notification §512(g)
If user believes content is not infringing, may send a counter notice, which must:
1) Identify the material which has been removed and its location;
2) Include the user’s contact information;
3) Include a signed and sworn statement that the user had a good faith belief that
the material was mistakenly removed.
Owner must file suit against alleged infringer within 10-14 business days, or OSP
must restore user’s material.
Knowledge § 512(c)(1)(A)
Actual
•
Receipt of a DMCA notice or the filing of a lawsuit against a host does not establish
actual knowledge. (Perfect 10 v. Amazon, 9th Cir. 2007)
~or~
Facts & Circumstances from which infringement is obvious (“red flag”)
•
NOT a reasonableness test (Veoh v. Io, N.D. Cal. 2007); (Perfect 10 v. CCBill, 9th Cir.
2007)
•
“Apparent knowledge requires evidence that a service provider ‘turned a blind eye to
‘red flags’ of obvious infringement.’” (House Rep. 105-551)
–
–
–
–
–
Copyright proprietor’s trademark on video clip is not “red flag” (Io)
Videos that appear to be “professional” are not “red flags” (Io)
Violation of federal labeling laws are not “red flags” (Io)
Description of video as “illegal” or “stolen” is not “red flag” (Io)
Hosting of material from a password-protected site is not a “red flag” (CCBill)
Control & Financial Benefit –
§512(c)(1)(B)
• More is required than ability to control and block access to the site
(Hendricks v. eBay, C.D. Cal 2001)
• Right and ability to place financial pressure on a site is not ability to control
(Perfect 10 v. VISA, 9th Cir. 2007)
• Right and ability to control infringement; not right and ability to control the
network (Io v. Veoh, N.D. Cal. August 27, 2008)
– But ability to control network is a consideration: “Perhaps most
importantly, there is no indication that Veoh has failed to police its
system to the fullest extent permitted by its architecture.”
• “[H]undreds of thousands of videos files from users” = too many to control
(Io)
•
No prescreening requirement (Io)
Control & Financial Benefit 
§ 512(c)(1)(B)
Subscription Model
•
Test is “whether the infringing activity constitutes a draw for subscribers, not
merely an added benefit,” but need not show that portion of income linked directly
to financial activity is “substantial.” (Ellison v. Robertson [AOL], 9th Cir. 2004)
 No direct financial benefit where no showing that AOL attracted or
lost subscriptions based on the presence or removal of infringing content.
•
When the fee a host site charges is unrelated to the amount of infringing material,
the host does not receive a financial benefit. (Perfect 10 v. CCBill, 9th Cir. 2007).
Advertising Model
• Viacom v. YouTube - ??
Repeat Infringers §512(i)(1)(A)
OSP “has adopted and reasonably implemented, and informs
subscribers and account holders of the service provider's system
or network of, a policy that provides for the termination in
appropriate circumstances of subscribers and account holders of
the service provider's system or network who are repeat
infringers.” §512(i)(1)(A).
• OSP “implements” policy if it (1) has a working notification
system; (2) procedure for dealing with takedown notices; (3) does
not prevent copyright owners from collecting information.
(CCBill)
• Implementation is “reasonable” if OSP terminates infringers when
“appropriate.” (Io)
Standard Technical Measures –
§512(i)(1)(B)
• Standard Technical Measures (§512(i)(1)(B))
– Have been developed pursuant to a broad consensus of
copyright owners and service providers in an open, fair,
voluntary, multi-industry standards process
– are available to any person on reasonable and
nondiscriminatory terms; and
– do not impose substantial costs on service providers or
substantial burdens on their systems or networks
• Perfect 10 v. CCBill: Perfect 10 alleged that CCBill does
not qualify for the DMCA safe harbor because it blocked
Perfect 10’s access to sites affiliated with CCBill
– Ninth Circuit remands on this issue
Viacom v. YouTube
• Google owns YouTube, $1.65B purchase price
• Viacom sued for $1B
• Google said to have set aside $200M to cover
infringement defense
• Many content providers have entered licensing
agreements with Google, permitting their content
to be shown on YouTube.
Viacom’s Allegations
•
Plaintiffs have identified more than 150,000 unauthorized clips of their copyrighted
programming on YouTube, which have been viewed over 1.5 billion times.
•
YouTube has unfairly shifted the burden of policing copyright violations to copyright
owners.
–
•
“[YouTube] has decided to shift the burden entirely onto copyright owners to monitor the
YouTube site on a daily or hourly basis to detect infringing videos and send notices to
YouTube demanding that it ‘take down’ the infringing works.”
YouTube has failed to take reasonable measures to police and respond to
infringement.
–
–
–
–
You Tube offers filtering technology only to those who enter into a license
Does not block slightly altered copies of infringing videos that are removed
Does not block repeat infringers from signing up with a new account
Does not permit copyright owners to view content users designate as viewable only by
“friends”
Google’s Answer
• Google asserts DMCA safe harbor
– Took down potentially infringing material upon DMCA notices
– Policy for repeat infringers
– Limits clips to 10 minutes
• Viacom claims that Google is ineligible, because
– YouTube must have had knowledge of infringing material.
– YouTube receives considerable advertising revenue from infringing
material.
– YouTube has the technological capacity to control infringement and can
cancel user subscriptions and take down infringing content.
Status
Currently in discovery  Viacom focusing on what Google knew when about
infringing videos
Interim order (S.D.N.Y. 2007)
• Google does not have to produce its search engine source code or the code
it uses to identify potentially infringing videos
• Google does have to produce copies of all removed videos and an
anonymous log of users who accessed the infringing videos.
Viacom hired BayTSP to search for potentially infringing content on YouTube
and other sites
Discovery order (N.D. Cal. Jan. 2009)
• BayTSP must produce information regarding its infringement monitoring,
YouTube’s responsiveness to DMCA notices & the responsiveness of
other online sites.
Predictions?
• Knowledge?
– Io, CCBill: not a reasonableness test; trademarks in videos, file names indicative
of infringing content might not indicate knowledge.
• Right & Ability to Control?
– Io: no pre-screening requirement, no requirement that Veoh change its business
to reduce infringement
– Io: “there is no indication that Veoh has failed to police its system to the fullest
extent permitted by its architecture.”
• Has You Tube?
• Viacom’s Complaint: YouTube uses its filtering and copyright protection
measures only when it obtains a license from the copyright owner.
• Financial Benefit?
– Advertising Model
DMCA Safe Harbor Not Available
If Discovery Misconduct
Arista Records LLC v. Usenet.com, Inc.,
June 30, 2009 (S.D.N.Y.)
• Usenet.com found liable for direct and secondary
infringement, due to active management of server
and customer relationships
• §512(c) safe harbor unavailable due to “egregious”
discovery misconduct
Defamation & Other Torts
Communications Decency Act §230
Immunity under Communications Decency Act,
47 U.S.C. §230(c)(1):
“No provider or user of an interactive computer
service shall be treated as the publisher or speaker
of any information provided by another information
content provider.”
OSP is a mere conduit  not a publisher (strict liability) or
distributor (knew/should have known)
No procedural requirements (cf. DMCA)
Statutory Exceptions
1. Federal criminal laws
2. Intellectual property laws: “Nothing in this section shall be
construed to limit or expand any law relating to intellectual
property.” §230(e)(2)
• 9th Cir: Section 230 does provide immunity for state IP claims;
“intellectual property” refers only to federal law
• D. N.H.; S.D.N.Y.: Section 230 does not provide immunity for
state or federal IP claims
3. Electronic Communications Privacy Act (ECPA) or “similar
laws”
4. State laws that are consistent with Section 230
Application of Section 230
Zeran v. America Online (4th Cir. 1997)
• Anonymous subscriber posted defamatory statements about plaintiff Zeran to AOL
bulletin board, leading to numerous hostile phone calls and death threats to Zeran.
• Zeran sued AOL for failure to remove the bulletins promptly after being notified and for
failure to prevent further messages from posting
• Is AOL a “distributor”?
–
–
–
NO. Court interpreted Section 230 broadly, finding Congressional purpose in
enacting Section 230 was to protect interactive computer service providers from
tort liability and guard against the chilling effect of such liability on free speech
interests of subscribers
Found that under Section 230, “distributor” liability is a subset of “publisher”
liability
AOL not liable either as a publisher (for initial posts) or as a distributor (for failure
to remove after receiving notice of defamatory content).
Zeran Applied Broadly to Tort, Statutory
and Contract Claims
• Federal civil rights laws. Noah v. AOL (4th Cir. 2004) (Title II,
discrimination in places of public accommodation, for racist comments
in AOL chat room)
• Invasion of privacy, right of publicity, negligence. Carafano v.
Metrosplash (9th Cir. 2003)
• Common law negligence. Green v. America Online (3d Cir. 2003)
• California unfair competition and Autographed Sports Memorabilia
laws. Gentry v. eBay (Ca. Ct. App. 2002)
• California unfair trade practices act. Stoner v. eBay (Ca. Super. Ct.
2000) (sale of bootleg musical recordings on auction site)
• Breach of contract. Barnes v. Yahoo! (D. Or. 2005) (failure to honor
promise to remove content)
• Breach of contract, negligent misrepresentation, tortious interference.
Schenider v. Amazon.com (Wash. Ct. App. 2001) (negative reviews)
Who is an “information content provider”?
Merely providing administrative support or organized searching relating
to content posted by others not likely to cause a UGC service to be deemed
a “content provider”
• Carafano v. Metrosplash, 339 F.3d 1119 (9th Cir. 2003): Online dating service not
content provider with respect to profile provided by member, despite having
collected information in response to specific questions and classifying user
information into categories
• Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003): Minor editorial changes to email
messages posted by users does not cause web site moderator of LISTSERV e-mail
to be deemed a content provider
**BUT**
Structuring the UGC may make an OSP the “information content provider,”
precluding Section 230 immunity.
Structuring User Content
Roommates.com (9th Cir. 2008) (en banc):
Questions & answers in pull down menu “Roommates created the
questions and choice of answers” so is “undoubtedly the ‘information
content provider’ and can claim no immunity.”
See also HyCite Corp v.Badbusinessbureau.com (D. Ariz. Dec. 2005);
MCW v. bad business bureau.com, LLC (N.D. Tex. 2004); and Whitney
Information Network v. Xcentric Ventures (M.D. Fla., reversed and
remanded (11th Cir. 2006) (website facilitating consumer complaints
not protected by Section 230)
Examples of Structured Content
Ninth Circuit:
“We interpret the term ‘development’ as referring not merely to augmenting the content generally,
but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop
unlawful content, and thus falls within the exception to section 230, if it contributes materially to
the alleged illegality of the conduct.” Roomates.com.
What is a material contribution?
– OSP provides search query box, user searches for “white roommate”
 no material contribution, query tool is “neutral”
– Dating website that requires users to enter sex/religion/race/marital status through
structured answers
 has not contributed to illegal discrimination
– OSP that edits user-submitted content for length, obscenity
 no material contribution if OSP edits are “unrelated to the illegality”
 if edits are material, Section 230 does not protect the OSP
Unstructured User Content
Roommates.com (9th Cir. 2008) (en banc):
User-submitted narrative: site does not encourage users to submit discriminatory
information and does not edit  immunity applies because Roommate did not
develop or edit the content
Same outcome in Chicago Lawyers’ Committee for Civil Rights Under Law v.
Craigslist (7th Cir. 2008):
User-submitted classified ads with text: “NO MINORITIES”; “Requirements: Clean Godly
Christian Male”; “No children”  230 immunity applies because Craigslist is not the
publisher
See also GW Equity LLC v. Xcentric Ventures LLC (N.D. TX 2009):
Creating “tags” (such as “con artist” and “financial consulting”) in pull down menu
that users could incorporate into “rip off reports” did not waive Section 230
immunity, where tags are not per se defamatory or illegal
Solicitation of User Content
Woodhull v. Meinel (N.M. App. Ct. Oct 24, 2008):
• Defendant solicited allegedly defamatory information from a school newspaper
staffer. The staffer e-mailed the material to the defendant, who posted it on her
blog.
• Court refuses to dismiss case under Section 230.
– Defendant requested potentially defamatory material for the express
purpose of making fun of plaintiff distinguishable from editing thirdparty e-mail.
– “Therefore, Defendant’s actions could reasonably be viewed as going
beyond what is protected by the CDA, exposing Defendant to potential
liability as an original ‘information content provider.’”
See also MCW v. Badbusinessbureau.com (N.D. Tex. 2004)
• By encouraging users to submit photos, content and “rip off reports”, BBB
became information content provider
“First Party” Content –
Marketing Representations
OSPs have no immunity against their own statements
Mazur v. eBay (N.D. Cal. 2008)
•
Plaintiff asserts marketing misrepresentations by eBay are false in view of shill
bidding practices:
– eBay: “Bidding on eBay Live Auctions is very safe. All live auctions are run
by reputable international auction houses, which are carefully screened by
eBay before being authorized to sell to you.”
•
No Section 230 immunity for eBay’s statement
– "eBay’s statement regarding safety affects creates an expectation regarding the
procedures and manner in which the auction is conducted and consequently
goes beyond traditional editorial discretion."
But Section 230 immunity applies to statements made by the third party auction
houses and to claims that auction houses are “carefully screened” because that is
an editorial function
•
Contract Claims and Section 230
Barnes v. Yahoo (9th Cir. 2009)
•
Plaintiff sues Yahoo after it promised to remove nude pictures posted by her ex,
but failed to do so
Ninth Circuit:
•
Section 230 immunity applies to contract claim, because it treats Yahoo as a
publisher (i.e. relates directly to function as an editor)
•
Section 230 does NOT immunize Yahoo from promissory estoppel claim
– “Insofar as Barnes alleges a breach of contract claim under the
theory of promissory estoppel, subsection 230(c)(1) of the Act does
not preclude her cause of action.”
Child Protection Statutes
Children’s Online Privacy Protection Act (“COPPA), 15 U.S.C. §6501
•
Websites must obtain “verifiable parental consent” before collecting, disclosing, or
using the personal information of children under 13
•
After collecting information, websites must keep it secure and give parents access
•
Xanga fined $1M by FTC for allowing children under 13 to join without parental
consent
States (Illinois, North Carolina, Georgia, New Jersey) have taken action to:
•
Extend their state statute to include all “social networking sites,” as opposed to
only child-oriented websites
•
Increase the relevant age to 17
•
Prohibit online adult/child interaction
•
Proposals in NC & GA did not pass and are pending in IL and NJ
Attorney General Actions
Investigations Lead to Settlements Requiring Enhanced Policing
• 2007: NY AG civil investigation asserting Facebook failed to live up to its claim
that it is safe for minors leads to settlement in which Facebook agrees to
enhanced response to complaints
• 2008: My Space entered an agreement with 49 AGs to go beyond COPPA
requirements
• Craigslist settles with 40 state AG’s and agrees to monitor postings
• But Criagslist successfully files DJ action seeking TRO when South
Carolina AG threatens criminal charges in May 2009, citing Section 230 and
unconstitutional prior restraint
• Texas was the first state to bring a COPPA enforcement action, which resulted in
a settlement and civil penalty against thedollplace.com and Gamesradar.com
OSP Obligation to Produce User Information
Generally, OSP must furnish information re users in response to subpoenas
• See, e.g., 17 U.S.C. §512(h) – Subpoenas to identify infringers
Application of press shield laws to UGC sites
•
See, e.g., O’Grady v. The Superior Court of Santa Clara County (Apple Computer)
(Cal Ct. App. 2006):
–
–
–
California Constitution protects any “publisher, editor, reporter, or other person connected with or employed
with a newspaper, magazine, or other periodical publication” from disclosing being held in contempt for
refusing to disclose confidential source
Held that operator of a public website is a “publisher” and a news-oriented website is “like” a newspaper or
magazine”
Legislature intended phrase “periodical publication” to include “all ongoing, recurring news publications
while excluding non-recurring publications such as books, pamphlets, flyers and monographs”
“It is at least arguable that PowerPage and AppleInsider, by virtue of their multiple staff members and
other factors, are less properly considered blogs than they are ‘emagazines,’ ‘ezines,’ or ‘webzines.’
Citing Wickipedia: ‘A distinguishing characteristic from blogs is that webzines bypass the strict adherence
to the reverse chronological format; the front page is mostly clickable headlines and is laid out either
manually on a period basis, or automatically based on the story type.’ However, the meanings ultimately
to be given these neologisms, as well as their prospects for survival, remain unsettled.”
–
Refused to discuss application of statute to “blogs” due to its “rapidly evolving and currently amorphous
meaning”
OSP Obligation to Provide User Information
●
Courts differ on whether anonymous commenters on blogs, forums, or news
sites must be disclosed:
•
One Illinois court upheld a grand jury subpoena, noting that the comments were
not “sources” as they were written after the story was posed
•
One Oregon court protected the commenter’s IP address in a libel suit, clarifying
that the protection attached only when comments were relevant to the article
•
Montana court quashed similar subpoena
•
Legislation has been introduced in New York and other states to extend shield
laws to bloggers who are the functional equivalent of journalists
•
No federal reporters shield that could protect anonymous sources
Contact:
Ashlie Beringer
Gibson, Dunn & Crutcher LLP
1881 Page Mill Road
Palo Alto, CA 94304-1211
(650) 849-5219
[email protected]