User-Generated Content Sites and Section 512 of the US Copyright Act

Abstract:     
This book chapter considers the liability of entrepreneurs of ‘user-generated content’ (UGC) sites. These immensely popular fora, such as YouTube and My Space, enable their participants to post and view a great variety of content, not all of it in fact generated by the posting user. The legislative compromise worked out between telecommunications providers and content owners in the 1998 ‘Digital Millennium Copyright Act’ provides the statutory framework, at once insulating the operators of UGC sites from debilitating copyright sanctions, while still affording meaningful relief to copyright owners. The statutory criteria to qualify for the section 512(c) safe harbor are designed to ensure that the beneficiaries of the safe harbor remain copyright-neutral with respect to the content they host.

The recent District Court decision in Viacom v. YouTube, however, indicates that the statutory safe harbor may shield even the entrepreneur who anticipates – indeed “welcome(s)” – massive infringements so long as the entrepreneur lacks “actual or constructive knowledge of specific and identifiable infringements of individual items.” While the statute makes clear that the entrepreneur should not be pressed into service as the investigative arm of the copyright owner, the Viacom decision does not simply decline to impose an obligation to seek out the infringers who may lurk within the user base. Rather, the decision arguably rejects neutrality to read into the statute a high degree of solicitude not only for online entrepreneurs whose businesses occasionally may accommodate infringing users, but also for those who effectively solicit infringers. If, by contrast, the neutrality principle does animate the statute, a court could appropriately apply that principle through a duty to take reasonable precautions to avoid apparent and repeat infringements.

Number of Pages in PDF File: 17

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