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Internet Law Strategy® LAW JOURNAL Internet Law ® NEWSLETTERS &Strategy Volume 5, Number 11 • November 2007 Harnessing Creativity or Creating Liability? Part One: Using User Generated Content and Engaging Users In Promotional Activities By Alan L. Friel he growth of online social network- and sending e-mails about a product or work’s advertisers. Knowing that engaging ing has not been lost on marketers, service to their friends, sometimes by consumers is more valuable than bombard- ing them with banner and pop-up ads, who hope to enlist Internet users in rewarding such activities with cash, T coupons, prizes or sweepstakes entries. online marketers are rushing to get Internet campaigns to promote their products and users to directly participate with their services. This article will appear in three UGC presents a host of potential legal brands and are involving bloggers, UGC and problems, such as third-party intellectual installments. This first part examines the use social networking sites and other virtual property infringement (and in recent years, of user-generated content (“UGC”) and user communities as a way to do so. In the we have seen a great deal of litigation gen- participation as part of a promotion. In the MMOG Second Life, for example, dozens of next issue, the use of online sweepstakes erated in this area). Sponsors and promoters real-life brands have established themselves and promotions will be addressed in detail. that engage users in their promotions run within the game environment, and ad inser- The final part will look at how the develop- the risk that user conduct and content will tion functionality and product integration ing law regarding e-contracting, online pri- be attributable to them and that they will be are being added to many online games. vacy and data security, commercial e-mails deemed responsible for what the users say An initial area of concern for Web site and children’s issues applies to Internet pro- and do in connection with the promotion. providers, promotions operators and spon- sors with respect to UGC and user partici- motions and marketing. In addition, the use of Web sites and Internet services are subject to the terms pation is the distinct possibility that the user and conditions of each provider, and pro- will infringe third-party intellectual property RIDING THE WAVE or personal rights. However, there are two motions must follow the rules of the appli- Lately, marketers are tapping into the laws that provide the possibility that the cable venues. user-created content phenomenon and run- Web site that hosts such content is not liable The combination of the ease in which ning UGC contests and other promotions for such content. digital media tools enable content creation online, sometimes promising to run the win- and the ability to publish and distribute that ning video as a television commercial. content via the Internet has led to a prolif- CDA IMMUNITY Marketers are engaging in online promo- eration of UGC. Social networking sites, The first is the Communications Decency tions within the virtual communities of MMOGs, blogs and UGC sites, such as Act of 1996 (“CDA”) (47 U.S.C. §230). The social networking and massively multiplayer YouTube (www.youtube.com), Facebook CDA provides that “[n]o provider or user of online games (“MMOGs”). In addition, (www.facebook.com) and MySpace an interactive computer service shall be online promotions frequently encourage (www.myspace.com), are immensely popu- treated as the publisher or speaker of any certain online user activities, such as recom- lar. Television and cable networks are information provided by another informa- mending products to friends on their blogs developing vibrant online sites to create a tion content provider” and expressly pre- two screen experience; offering viewers the empts any state law to the contrary. 47 ability to interact, participate and create via U.S.C. §230(c)(1) and (e)(3). Web sites have the online offering. For example, on been held to be an “interactive computer Alan L. Friel is Counsel in the Los Angeles www.current.com, the online offering of Al service” under the act. Doe v. MySpace, 474 office of international law firm Kaye Scholer Gore’s youth-oriented cable net Current TV, F.Supp.2d 84, 8523 (W.D. Tex. 2007); Gentry LLP, where he practices in the areas of adver- users can connect with each other, con- v. eBay, Inc., 199 Cal. App. Fourth 816, 830 tising, entertainment and technology law. He tribute video programming that has the (2002); and Schnieder v. Amazon, 31 P.3d can be reached at [email protected] or potential to migrate to the cable network 37, 40 (Wash. App. 2001). Online activities 310-788-1052. and even create commercials for the net- as both publisher and as distributor, by LJN’s Internet Law & Strategy November 2007 providers and users, have been found to requests was not development or creation qualify for the immunity, so long as such of content by the operator). defendant is not the content originator. See, Accordingly, a provider or user’s own Zeran v. America Online, Inc., 129 F.3d 327, content, including corporate blogs con- 333 (Fourth Cir. 1997), cert. denied, 524 U.S. tributed to by company employees, do not 937 and Barrett v. Rosenthal, 40 Cal. 4th 33, qualify for the immunity. The degree, how- 49 (Cal. 2006) (reversing lower court that ever, of permissible involvement in direct- had rejected “majority” view). CDA immuni- ing, regulating and promoting UGC is unset- ty does not include protection from viola- tled, and care should be taken in this regard tion of federal criminal law, the Electronic if a marketer’s activities have the possibility Communications Privacy Act of 1986 or of qualifying for CDA immunity. intellectual property law. However, at least The standard for “objectionable content” in the Ninth Circuit, the carve out from is not clear, but it can be presumed to be immunity for intellectual property law has objective rather than subjective and, thus, a been held to only include federal intellectu- provider or user should not edit content that al property law and not state law claims it disagrees with or deems unfavorable to it, such as rights of publicity. See, 47 U.S.C. its sponsors or its or their products or serv- §230(e)(1), (2) and (4). See also, Perfect 10 v. ices. It is reasonable, though yet to be CCBill LLC, 488 F.3d 1102 (Ninth Cir. 2007); determined, that given Congressional find- cf. Almedia v. Amazon.com, 456 F.3d 1316 ings in the Act that the policy of the United (Eleventh Cir. 2006) (not reaching the ques- States includes restricting children’s access tion of whether state rights of publicity to inappropriate online material, the objec- claims are exempted). In order to be sure to tionable standard will be treated differently qualify for the protection, the provider or for children’s Web sites. A serious question user should not edit or actively direct the exists as to whether providers can police content; however, it can take efforts “in content that includes improper depiction or good faith to restrict access … to obscene, use of trademarks or products or false or lewd, lascivious, filthy, excessively violent, deceptive advertising under the objection- harassing, or otherwise objectionable con- able content standard, but a policy argu- tent.” 47 U.S.C. §230(c)(2). Compare Zeran, ment can be made that any content that 129 F.3d at 331 (no liability for content orig- infringes third-party rights or violates appli- inating with third parties and §231 not cable law should be deemed “otherwise intended to restrict “editorial or self-regula- objectionable” and subject to restriction, tory” functions); and Blumenthal v. Drudge, blocking and removal without risking loss 992 F.Supp. 44 (D.D.C. 1998) (immunity of the CDA immunity. Rather, the purpose applied even though operator paid for the of the CDA was to “encourage service ever, will remain open questions until content, had certain editorial rights and providers to self-regulate the dissemination decided by the courts. In addition, practical- promoted the content and content of offensive material … [by] forbid[ding] the ly speaking, if the UGC is blocked or provider); with Hy Cite Corp. v. badbussi- imposition of publisher liability on a service removed entirely by the provider or user, it nessbureau.com, 418 F. Supp. 2d 1142 (D. provider for the exercise of its editorial will no longer exist on the service to poten- Ariz. 2005) (denying motion to dismiss and self-regulatory functions.” Zeran, 129 tially give rise to claims. Accordingly, block- where operator alleged to have included F3d at 331. ing or removal is safer than editing. editorial comments to and titles for user Further, a distinction can arguably be However, as discussed below, such removal postings); Fair Housing Council v. drawn between prohibiting, editing and and control authority may potentially pre- Rommmates.com LLC, 489 F.3d 921 (Ninth removing content from a Web site that criti- clude a Digital Millennium Copyright Act Cir. 2007) (“if [a provider or user] is respon- cizes a sponsor or its products and services, (“DMCA”) defense. sible, in whole or in part, for creating or which some courts may find obviates the developing the information, it becomes a third-party nature of the content, and content provider [not merely a service enforcing a contest rule that disqualifies the SAFE HARBOR UNDER THE DMCA provider or user] and is not entitled to CDA user from winning prizes while leaving the With respect to third-party copyright immunity”) vacated for hearing en banc at content posting unchanged.
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