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A Contractual Deterrence Strategy for User-Generated Copyright Infringement and Subsequent Service Provider Litigation

(SMU) Southern Methodist University Law Review, Vol. 64, p. 691, 2011

43 Pages Posted: 1 Mar 2011 Last revised: 12 Apr 2014

Amanda Harmon Cooley

South Texas College of Law Houston

Abstract

This article explores the ways in which Internet and online service providers could contribute to the deterrence of online user-generated copyright infringement, and also proactively avoid future Digital Millennium Copyright Act safe harbor related litigation for infringing user conduct, via strengthened user agreements. This type of contractual deterrence strategy would require modifications to the status quo of transactional practices within the Internet industry. Fortunately, the Internet allows for relatively swift and easy changes on the part of service providers. Specifically, this approach could be accomplished through changes to the model of user agreements that would require more evidence of users’ assent to the agreements and increased security measures for identity verification. In addition to these model changes involving contract formation, this approach would require robust contractual drafting with the inclusion of remedies for users’ infringing conduct that are more stringent than the current provisions on termination of user accounts. Further, this approach would require actual enforcement of the user agreement when there is a breach by a user in posting infringing content. Finally, Internet and online service providers would need to adopt integrated marketing campaigns to increase the transparency of their efforts to curb cyber-harms that are perpetrated via their services.

Keywords: DMCA, copyright infringement, user agreement, cyberlaw, user-generated content, service provider

JEL Classification: K12, K20

Suggested Citation

Cooley, Amanda Harmon, A Contractual Deterrence Strategy for User-Generated Copyright Infringement and Subsequent Service Provider Litigation. (SMU) Southern Methodist University Law Review, Vol. 64, p. 691, 2011. Available at SSRN: https://ssrn.com/abstract=1773157

Amanda Harmon Cooley (Contact Author)

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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