traverselegal - October 17, 2012 - Copyright Law, User-Generated Content
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User-generated content is content that’s uploaded by website visitors or registered users to your website. Essentially, user-generated content is exactly that. It is content uploaded to your site by someone else and typically over someone who you don’t have much, if any, control over.
There are a lot of websites that are premised on user-generated content: Facebook, all social media. Twitter is all content that’s uploaded by users. Flickr, and any other photo-uploading website is dominated by user-generated content.
If you are a website owner or operator, and you are receiving what is known as user-generated content, or UGC, from your website visitors, then you have some very specific issues which you need to be thinking about, both from a copyright point of view and a right to publicity point of view, as well as other issues regarding trademarks and related IP matters.
What you need to do is you need to design your business model in a way that provides you the greatest protection or immunity from litigation if user-generated content results in some sort of privacy allegation, or copyright infringement allegation, or trademark infringement allegation, or allegation of defamation, rights of publicity, these types of issues.
Now, user-generated content is not going away. Luckily for you, the law provides you some critical protections against some of these types of claims if you meet the definitions required under those statutes.
My name is copyright law attorney, Enrico Schaefer. Today we are talking about user-generated content, or UGC, and what a website owner or operator needs to do to protect themselves from getting sued for thing their users are doing on their website.
Today let’s talk a little bit about copyright issues. If end users are uploading text, photos, graphics or any other types of materials, or even linking from your website to those types of materials, you could ultimately get a third party copyright infringement claim directed at you saying, “Hey, that’s my photograph posted on your website. I, the copyright owner, did not give you permission, and I think that you might be liable as a result of posting that copyright protected material onto the sight.”
What can you do as the website operator? Well, first thing is did you post it or did your employees post it or was it, in fact, user-generated content? If it came from a third-party user website visitor, then you are going to be protected by the Digital Millennium Copyright Act, which allows you to implement a DMCA takedown procedure, so that content that is violative of third party copyrights can be. . . You could be provided notice of the copyright infringement claim. You have an obligation to remove the materials from the website, provide notice to the user who uploaded the material. There’s a procedure in place which will allow this to go back and forth like a Ping-Pong ball, but you stay out of it. That is to say, as long as you follow the DMCA takedown procedures required by law, you cannot be sued for copyright infringement.
This is a very important issue. The first thing you need to do is make sure you have a DMCA policy on your website, that the DMCA policy complies with federal law, that you in fact are getting the protection under the Digital Millennium Copyright Act, so that if someone accuses you of copyright infringement, you can show them your DMCA policy and avoid any potential copyright liability.
There are other issues that are involved in user-generated contents. Review sites, such as Yelp, and even Google Places, where people can review a company and post a comment, and hundreds of thousands of other websites like it, allow you to go ahead and accept user-generated feedback about a person or company. Sometimes that can be alleged to be defamatory content. You might get a letter from an attorney or lawyer saying, “My client has suffered defamation of character as a result of things that are posted on your website.
The Communications Decency Act, the CDA, provides you protection from those types of claims. You don’t have to do much of anything except qualify under the statute as a provider of internet services in order to avoid liability for user-generated content that is in the category of defamation of character.
Let me tell you, defamation of character on the internet, or internet defamation has become a huge issue. It is generating an awful lot of angst on behalf of business owners and individuals alike when they suffer a negative review. There’s a whole body of law around internet defamation that your attorney will have to understand. You want to certainly get someone who specializes in internet law defamation as your lawyer in order to handle those types of issues. You should also hire an internet lawyer who can make sure that you comply with the Communications Decency Act in order to be afforded that level of immunity.
Now, there’s another issue that tends to come up in the space of user-generated content and that is rights of publicity. Let’s say someone uploads a photo to your website, and it is a person’s face, and as a result of that upload, that person hires an attorney who sends you a cease and desist and threat letter and says, “That is my client. You are commercially benefitting from my client’s photograph without their permission, and you have no right to use the publicity of my client in order for you to financially gain.” Or, “My person is a minor and you are violating their privacy rights by allowing that photograph to be placed on your website.
These could be very tricky issues. You need to work with an internet law attorney, make sure that you understand what business model you are going to put around user-generated content in order to reduce risk of these types of claims.
Today we’ve been talking all about user-generated content, copyright infringement. We’ve been talking about internet defamation. We’ve been talking about right to publicity.
My name is copyright attorney, Enrico Schaefer. I hope you learned something today. We’ll see you next time.