On Tuesday, July 27th, I will be presenting the program “Copyright, the DMCA, and User-GeneratedContent: protect the user experience…protect yourself” at the IUE2010 conference on the campus of Washtenaw Community College in Ann Arbor, Michigan.

IUE2010, in its sixth year, brings together top industry speakers, practitioners, and authors to discuss website design and strategy, including user experience design, graphics, branding, social networking, accessibility, effective web writing, the migration to mobile, and enhancements that drive customers to websites.  My inclusion this year is somewhat unique among the other presentations.  I’m looking forward to discussing how copyright law is effecting website design and the user experience.

–Matt

“A 12-person jury deliberated six hours over two days in January before awarding [the plaintiff] $50,000 in compensatory damages.  The verdict made him the first plaintiff awarded damages in a libel suit against a blogger….The case is one of at least 50 similar suits filed in the past several years.” — Kansas City Daily News, October 26, 2006

“Social media – always fun until someone gets sued.” — FP Legal Post, March 16, 2009

What are blogs, wikis, and online forums?

Blogs, wikis, and online forums are part of the Web 2.0 social media explosion that are changing the way we do business and work with each other. Web 2.0 represents one of the greatest opportunities of our lifetime to share ideas and work collaboratively.

However, Web 2.0 also represents one of the newest legal threats to people and companies utilizing these tools.  Whether you are new to Web 2.0 or a relative old-timer, you have probably witnessed more and more stories every day about people and companies getting in trouble for what they or their users have posted online.

What legal liability issues can arise from my blog, wiki, or online forum?

Generally, you face the same liability issues as anyone making a publication available to the public. The main legal liability issues include:

• Defamation
• Intellectual Property (Copyright/Trademark)
• Trade Secret
• Right of Publicity
• Invasion of Privacy

Whenever you open the Web 2.0 door, inevitably someone will publish information or post content that others don’t want published.  Someone might, for example, publish something that someone considers defamatory or private, republish someone’s copyrighted content without permission, or misuse or tarnish someone’s trademark in a way that confuses consumers.

What can I do to protect yourself and my company?

• Understand your rights to link to information, quote from articles and blogs, or otherwise use someone else’s creative works.
• Understand how and when you can use the brand name of a good or service in your blog, wiki, or online forum.
• Develop and implement company policies and procedures for employees using Web 2.0 tools.
• Post clear and conspicuous terms and conditions for users.
• Implement a comprehensive and expeditious “notice-and-take-down” procedure for the removal of copyrighted material.
• Understand your rights and responsibilities under Section 230 of the Communication Decency Act of 1996.

–Matt

The so-called “notice-and-takedown” procedure in the Digital Millennium Copyright Act of 1998 (the “DMCA”) – previously referenced here and here – provides copyright holders with the means to remove allegedly infringing material from websites.  When users post such material, the copyright holder provides notice to the website operator, and the operator is charged with the taking it down.  Increasingly, however, the users posting these materials are fighting back when takedown notices are used illegally.

In a recent case, the animal rights group Showing Animals Respect & Kindness (aka SHARK) shot video footage of a rodeo which depicted, according to SHARK, animal abuse.  SHARK then posted the footage to its YouTube channel accompanied with provocative commentary and as part of a fund raising drive.  The Professional Rodeo Cowboys Association, the organizer of the rodeo, sent YouTube a DMCA takedown notice claiming that the clips infringed their copyright because SHARK was not authorized to shoot the event.  There is one problem with that claim: live sporting events, such as rodeos, are not copyrightable.  SHARK complained, YouTube put its channel back up, and then SHARK sued the Rodeo Association for abuse of the DMCA.  In the end, the Association agreed to pay SHARK $25,000 for the wrongful takedown notice.

–Matt

The so-called “notice-and-takedown” procedure in the Digital Millennium Copyright Act of 1998 (the “DMCA”) – previously referenced here – provides copyright holders with the means to remove allegedly infringing material from websites.  The copyright holder provides the notice, and the website operator does the taking down.  The notice, to be effective, must contain, among other things, a statement from the copyright holder that it has a “good faith belief” that infringement of its work is actually taking place.  17 U.S.C. § 512(c)(3)(A).  In a recent California case, Lenz v. Universal Music Corporation, a federal court held that in order to validly claim such a “good faith belief” the copyright holder must consider whether the use of the material constitutes “fair use”.  (Fair use is the doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the copyright holder, such as use for scholarship, review, news reporting, and certain non-commercial, transformative uses).

The Lenz case involved a video posted on YouTube of a baby dancing to Prince’s song “Let’s Go Crazy”.  The video was posted by the baby’s mother.  Universal, owner of the Prince song, sent a DMCA takedown notice to YouTube.  YouTube complied.  Momma Lentz sent a counter-notice, claiming that the video was “fair use” and sued Universal claiming the company failed to consider fair use before sending its notice, as it was required to do.  The court agreed.

Under Lenz, copyright holders must now consider fair use before sending a DMCA takedown notice.  However, the court in Lenz noted that, while fair use must be considered, the copyright holder need not reach the right conclusion.  The court further noted that the consideration given to the fair use question need not be extensive.  It is enough then that the copyright holder demonstrate only that fair use was considered in order to avoid liability under Lenz.

–Matt

The following is the introduction to my article, “The Law of Content Sharing: YouTube and Beyond,” published last year, available through the Institute of Continuing Legal Education (or just contact me and I’ll send you a copy):

With the advent and popularity of websites such as YouTube, Flickr, MySpace, and most recently Microsoft’s Soapbox, more and more entrepreneurs are looking to develop their own social, content-sharing websites with dreams of vast advertising revenue or, better yet, Google-sized buyouts. But, while this emerging online industry has many notable success stories, and a growing legion of followers, it has also caught the attention of content owners who claim that these websites permit and facilitate massive infringement of their copyrighted works.

Even so, the large media companies have largely refrained from launching all-out litigation war against these websites. In the case of Google, owner of YouTube, the company has successfully struck deals with several major media companies, sharing advertising revenue in exchange for licensing agreements. In other instances, media companies may purposefully look the other way, since these sites provide free and valuable exposure for their content, which in turn generates a larger audience, and, in the case of video content, more advertising revenue for their commercial broadcasts.

Google was unable to strike deals with all of the major studios, however, and on March 13, 2007, after negotiations between the companies ended, Viacom filed a lawsuit against Google and YouTube, seeking damages and an injunction to stop alleged infringement of Viacom’s video content. In the suit, Viacom accuses YouTube of using its technology to “willfully infringe copyrights on a huge scale…and profiting from the illegal conduct of others as well.”

YouTube and other content-sharing websites have consistently claimed that they qualify for protection from liability because they remove copyrighted content from their sites immediately upon the request of copyright holders. YouTube is relying on the so-called “notice-and-takedown” procedures in the Digital Millennium Copyright Act of 1998 (the “DMCA”), an important part of the Act’s “safe-harbor” provisions, which were designed to protect access providers, search engines, web-hosting services and others from liability for copyright claims, if they qualify.

But do sites such as YouTube in fact qualify for protection under the DMCA’s safe-harbor provisions? The DMCA is highly technical and was drafted in a much earlier age of the Internet, primarily to protect Internet service providers like AOL. Viacom and other content owners claim that it is inappropriate to apply the safe-harbor provisions of the DMCA to companies like YouTube, since they derive a substantial economic benefit from pirated content on their systems, and because they are in a better position than large Internet service providers to police or filter out such content. On the other hand, if YouTube and similar websites do not qualify for protection under the DMCA, they are almost certainly liable for copyright infringement under theories of secondary liability, particularly vicarious liability, expanded by courts in the recent line of music-file-swapping cases, most notably the Napster , Aimster , and Grokster cases. If so, much of this social, content-sharing ecosystem may well disappear.

Assuming Viacom’s lawsuit is not merely an attempt to improve its bargaining position with Google, this could be the first major case to test the DMCA’s safe harbor provisions. Content-sharing websites and their legal counsel should watch closely. In the meantime, legal counsel should advise clients carefully in the art of complying with the DMCA in order to take advantage of its protections, for as long as they may last.

UPDATE: Viacom’s lawsuit is still ongoing. In July of this year, Viacom won a ruling that ordered Google to hand over sensitive data regarding the video-watching habits of YouTube users, igniting privacy concerns.

–Matt