Filters, Fair Use, and Feedback: User-Generated Content Principles and the DMCA

Abstract

As Web 2.0 matures, the copyright policing burden is shifting from copyright owners to user-generated content (UGC) sites. UGC sites are implementing copyright filters to remove potentially infringing content even though these filters are largely incapable of accommodating fair use. This article argues that these filters will become mandatory "standard technical measures" due to feedback loops in the DMCA.

This article surveys the relevant technical and legal background, including the recent DMCA opinions Lenz v. Universal and Io v. Veoh. Ambiguities in the DMCA abound; the article identifies the important ambiguities and attempts to predict how courts may resolve them. These ambiguities coupled with the risk-averse nature of large companies in the industry and the ambiguities in fair-use doctrine may lead to expansion of copyrights and contraction of the safe harbors through feedback loops.

The article examines two recent proposals for addressing copyright and fair use in UGC, the UGC Principles and EFF Fair Use Principles. The UGC Principles may signal, at last, a shift to "standard technical measures" for policing copyright, which service providers must accommodate under § 512(i). Filters incapable of accommodating fair use make for poor copyright enforcement mechanisms. The article argues that the filters split the copyright policing burden into two: the technological burden to identify potentially infringing content and the human burden to evaluate fair use of potentially infringing content. Obstacles to establishing such a two-stage policing system are also identified.

Keywords: user-generated content, user generated content, DMCA, Web 2.0, filters, content filters, copyright filters, feedback loop, feedback, feedback effects, fair use, standard technical measures, Lenz, Universal, Io, Veoh, UGC, UGC Principles, Michael Sawyer