User Generated Content: Infringing?

From content sharing to crowdsourcing, web sites that facilitate exchange of user-generated content (UGC) are key components in what makes the web … the web!  But of concern for website providers, promotions operators, sponsors, and others that permit third parties to post UGC is the possibility that the user will infringe third-party intellectual property or personal rights.

The unauthorized posting, uploading, transmission, and storage of copyrighted works by individual Internet users may constitute an infringement of copyright owners’ exclusive rights of reproduction, distribution, and performance or display.  Also, an individual Internet user’s expressive creation that includes major, copyrighted elements of other previously created work may constitute infringement of a copyright owner’s exclusive right to make derivatives (editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship).

UGC and Infringement

The following liability theories are applicable to both UGC posters and website operators:

• Direct infringement – established by a plaintiff’s showing of (1) ownership of the allegedly infringed material, and (2) violation by the alleged infringer of at least one of the exclusive rights of copyright holders.  Additionally, in the case of a defendant website or Internet service provider that “automatically transmits users’ material, but is itself totally indifferent to the material’s content,” there must be volitional conduct on the part of the defendant.
• Contributory infringement – when “[o]ne who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another. Absent any specific information which identifies infringing activity, a system provider cannot be liable for contributory infringement merely because the structure of the system allows for the exchange of copyrighted material.
• Inducement – a special case of contributory infringement whereby “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for infringement by third parties.”
• Vicarious infringement – where a defendant (1) has the right and ability to exercise control over a directly infringing party and its activities, and (2) receives a direct financial benefit from the infringing activities.  If the presence of infringing material on a website compels more people to visit the website than otherwise would, thereby making it more attractive to advertisers, the provider can be said to benefit from the infringement.

DMCA and Safe Harbor

As you can see, UGC presents a perilous path for a web content providers to navigate.  But rather than let copyright law chill the evolution of the Internet, Congress passed the Digital Millennium Copyright Act (DMCA) to protect qualifying Internet service providers from liability for all monetary relief for direct, vicarious and contributory infringement.  More on this very important legislation next time.