By Richard Chapo – SoCalInternetLawyer.com
The meshing of copyright laws with the Internet has historically been a difficult one. While legislation and court rulings have helped clear up many issues, there are still practical problems popping up. One issue becoming more prevalent is the protection of user generated content on a website from a copyright perspective.
UGC
User generated content is currently the hottest trend on the web. As the name suggests, user generated content is simply content uploaded to a site by users. The classic example is Facebook where over a billion members upload every type of content imaginable. While Facebook is the standard, nearly every site allows uploads of some sort to create an interactive environment with users including this site through its comments section.
Copyright
User generated content presents a number of copyright issues for websites. Users uploading infringing works is an obvious potential exposure issue, but the Digital Millennium Copyright Act of 1998 goes a long way to mitigating that problem. However, one still has the issue of ownership of the content, to wit, does the user or site take ownership of the material once it is uploaded?
The traditional approach to this issue is for the website to be granted a non-exclusive, permanent license to publish and use the uploaded content through its terms of service. Under copyright law, however, this creates a conundrum. The problem is the exclusivity, or lack thereof, of the license.
Under Section 501 of the Copyright Act, licenses are treated in an interesting manner. A person with an exclusive license can move to protect the content by pursuing infringement actions against unauthorized users. However, a party that is granted a non-exclusive license does not have standing to do so.
This creates a conundrum for businesses running websites. If they cannot pursue infringement actions, they face the prospect of having key parts of their site copied and republished on the web. The chance that an individual user of the site will pursue a copyright action against the alleged infringer is nominal at best, so the website is left exposed.
The obvious answer to this situation would be for the users to transfer copyright ownership to the website. Practically speaking, such a transfer is difficult at best. First, the transfer of a copyrighted work has traditionally required a signed transfer document. A few online businesses are now trying to argue the agreement of a user to the terms of a website constitutes such a transfer. I’m unaware of any case where the court has ruled in favor of such an interpretation at this time.
Even if the courts were to support such a notion, the backlash from consumers and web advocates would do untold damage to the website asserting the transfer. One only has to consider the outrage that arose when Instagram asserted a right to redistribute user photos for money to realize as much.
Solution
At this time, there really is no obvious solution to this conundrum. Courts are cobbling together various decisions in cases such as Metropolitan Regional Information Systems, Inc. v. American Home Realty Network, Inc., 2012 U.S. Dist. LEXIS 121352 (D. Md. Aug. 24, 2012), but the ultimate solution may require amending the Copyright Act to give holders of non-exclusive licenses the ability to protect works granted to them under said licenses.