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. If the sponsor infringement arising out of UGC, a Web site 2007 U.S. App. LEXIS 23922 (Ninth Cir. Oct. of a contest on a Web site, rather than the provider, including potentially a single 12, 2007); and Ben Ezra, Weinstein and Web site provider itself, is the party enforc- sponsor site and joint operators of co- Company, Inc. v. America Online, Inc., 206 ing restrictive contest content guidelines in branded sites, may be able to create a safe F.3d 980 (Tenth Cir. 2000) (operator failed to selection of the winner, then the Web site harbor defense for what is truly UGC if it provide evidence content was solely created provider should at least be able to maintain maintains a proper DMCA compliant notice by third parties and that its efforts to correct that it was not regulating or directing the and take down process. See , 17 U.S.C. §512. errors through deletions and correction content in this manner. These issues, how- If the Web site does not “receive a financial LJN’s Internet Law & Strategy November 2007

benefit directly attributable to the infringing sor’s promotion of its products and services liability; 3) vicarious liability; and 4) tertiary activity” in a situation where it “has the right or as part of a sponsored contest or other liability. “One contributorily infringes when and ability to control such activity,” has reg- promotion, or enlisting users to create user he 1) has knowledge of another’s infringe- istered an agent of service with the U.S. generated ads constitute “direct financial ment; and 2) either (a) materially con- Copyright Office and maintains a procedure benefit” remains an open issue. Further, the tributes to or (b) induces that infringement.” compliant with the act for the removal of courts need to establish what content guide- Perfect 10 v. Visa International, 2007 U.S. UGC upon a valid take down request, it lines and controls, beyond the ability to take App. Lexis 15824 (Ninth Cir. 2007). should have a defense to copyright infringe- down UGC that infringes third-party copy- Contributory liability has also been found ment claims by copyright holders. If the rights, falls short of constituting “an ability where “a computer system operator learns user whose content is taken down files a to control,” and how CDA Section of specific infringing material available on proper counter-notification requesting the 230(c)(2)’s encouragement of good faith his system and fails to purge such material restoration of removed content, the service efforts to restrict obscene, lewd, lascivious, from the system, the operator knows of and provider must send a copy of such request filthy, excessively violent, harassing and contributes to the infringement.” A&M to the party that originally requested the otherwise objectionable content interplays Records v. Napster, Inc., 239 F.3d 1004, 1021 removal. Unless that party then obtains a with the DMCA’s restriction on a financially (Ninth Cir. 2001). “[O]ne who distributes a court order supporting removal of the mate- interested operator’s ability to control UGC device with the object of promoting its use rial at issue, the service provider must and still obtain the safe harbor. Finally, the to infringe copyright, as shown by clear restore access to the material. A service use of content filters, such as Google’s expression or other affirmative steps taken provider does not have a duty to monitor its newly announced content fingerprinting to foster infringement, is liable for [inducing] Web site for infringing content, but must ter- system — advocated by many content own- the resulting acts of infringement by third minate repeat offenders. See , 17 U.S.C. ers as a measure Web sites should be obli- parties.” MGM Studios v. Grokster, Ltd., 545 §§512(i)(1)(A) and 512 (m)(1). gated to employ — are likely to result in U.S. 913, 936-37 (2005). Vicarious liability The scope of the DMCA safe harbor is complaints by the fair use community that exists where the defendant: 1) possesses the currently the topic of several pending law First Amendment protected transformative right and ability to supervise; and 2) has “an suits against UGC Web sites. See, e.g., uses of third-party content are blocked by obvious and direct financial benefit from the Viacom v. YouTube, Inc. et al., No. such technology. See, Moveon.org Civic infringement.” Cherry Auction v. Fonovisa, 1:07:02103 (S.D.N.Y. filed March 13, 2007); Action et al. v. Viacom, No. 3:07:01657 Inc., 76 F.3d 259, 262-63 (Ninth Cir. 1996). UMG Recordings, Inc. v. MySpace, Inc., No. (N.D.Cal. 2007) (alleging improper take In addition, recent litigation has attempted 2:06-07361 (C.D.Cal. filed Nov. 17, 2006); down of political parody and criticism video to advance a so-called “tertiary” theory that and The Football Assoc. Premier League Ltd. incorporating clips from the TV show whose one that facilitates or enables a contributory and Bourne v. YouTube, Inc. et al., No. host was lampooned). YouTube recently or vicarious infringer is also liable as such. 07:3593 (S.D.N.Y. filed May 24, 2007). announced that it was testing a copyright fil- See, e.g., UMG Recordings, Inc. v. Hummer Amongst the issues to be decided in these tering system and a coalition of UGC Web Winblad, et al., 2006 U.S. Dist. Lexis 30338 cases is how much commercial activity by sites and mainstream content companies (N.D. Cal. 2006) (suit against Napster’s the site related to the UGC constitutes ann- ounced guidelines calling for adoption directors and investors; settled while on “direct financial benefit” that would pre- of such types of filtering and blocking tech- appeal). Depending upon the facts, the clude the Web site with an “ability to con- nology by the end of 2007. See, Principles operators and sponsors of a UGC contest or trol” content from falling within the safe har- for User-Generated Content Services other promotion could conceivably fall bor, and what technical measures to prevent (www.ugc.principles.com). under one or more of these theories and, if infringement are required by the Act. The CDA immunity and the DMCA safe they lack DMCA protection, may be found Charging the users posting infringing con- harbor will not apply other than to qualify- liable for the copyright infringement caused tent set up and service fees has been found ing Web sites and online service providers by users. not to be a direct financial benefit. Perfect and, in the case of the CDA only, to users of Accordingly, care should be taken to pro- 10, Inc. v. CC Bill LLC, 481 F.3d 751, 767 a service that distributes third-party content. hibit infringing activities and to take appro- (Ninth Cir. 2007); and Ellison v. Robertson, Thus, if a company is operating a UGC pro- priate corrective action when it is discov- 357 F.3d 1072, 1079 (Ninth Cir. 2004); cf. motion other than on its own site (e.g., via ered. Sponsors can reduce the potential for CoStar Group, Inc. v. LoopNet, Inc., 373 F.3d a YouTube user group), the company will liability by restricting the content to be used 544 (Fourth Cir. 2004) (suggesting in dicta not have a DMCA copyright-infringement to content that is either original to the user no direct financial benefit from subscription shield, and may or may not have the ability and/or certain pre-cleared content made service); and Hendrickson v. eBay, Inc., 165 to seek CDA immunity for non-intellectual available to the users for purposes of the F.Supp.2d 1082 (C.D. CA 2001) (suggesting property claims, depending upon its promotion. It is also advisable to direct in dicta no direct financial benefit from serv- involvement with infringing UGC. users to sources that explain the basic rules ice fees on online auctions). Theories of advertiser liability for involve- of copyright, intellectual property and per- Whether serving ads (contextual or oth- ment in a promotion that includes UGC that sonal rights (while disclaiming responsibili- erwise) on the same page as UGC or within infringes upon third-party copyright include: ty for the completeness or accuracy of that the UGC itself, using UGC as part of a spon- 1) contributory infringement; 2) inducement information) and to require clearance and LJN’s Internet Law & Strategy November 2007 prohibit infringement. At least one major available notwithstanding a finding of ads, chat rooms and viral e-mail. If the promoter of user-created ads has elected immunity, may also be visited by this litiga- sponsor’s inducement is not clearly and not to have submissions posted on a public tion. Cf. Noah v. AOL TimeWarner, 261 conspicuously disclosed, the sponsor runs Web site by users, but rather privately sub- F.Supp2d 532 (E.D. Va. 2003) (applying the risk of a claim of engaging in deceptive mitted, reviewed and cleared by the immunity to chat room operator for alleged or unfair advertising practices. State law provider and its sponsors before the ads are violation of civil rights laws for failure to unfair competition and deceptive advertis- publicly displayed. Such an approach opts police hate speech in chat room despite ing claims should be preempted by CDA for clearance and control as the preferred claim chat rooms are public accommoda- immunity to the extent the sponsor is acting method of risk management over an attempt tions, but finding act does not bar claims of as a provider or user of a qualified service. to fall under CDA and DMCA protection. injunctive relief), aff’d 2004 US App. Lexis See, Perfect 10, supra, 340 F.Supp.2d 1077. 5495 (Fourth Cir. March 24, 2004); and However, the federal FTC Guidelines TRADEMARK INFRINGEMENT Perfect 10, Inc. v. CC Bill, LLC, 340 Concerning Use of Endorsements and Neither the CDA nor the DMCA provide F.Supp.2d 1077 (C.D. Cal. 2004) (state unfair Testimonials in Advertising, provide that any protection for federal trademark competition claim based on trademark “[w]hen there exists a connection between infringement, dilution or tarnishment, and infringement is not “intellectual property” the endorser and the seller of the advertised the CDA may not provide immunity for vio- law within the meaning of the Act), aff’d as product which might materially affect the lations of the Lanham Act (15 U.S.C. §1125), to this issue, 481 F. 3d 751 (Ninth Cir. 2007). weight or credibility of the endorsement which is part of the federal statutory scheme Even if CDA immunity is found to apply to [e.g., payment to a non-expert or non- regulating trademarks and thus may also be Quiznos’ own Web site activities, it is celebrity] … such connection must be fully part of federal intellectual property law that alleged that Quiznos uploaded three of the disclosed.” 16 C.F.R. §255 and 16 C.F.R. is excepted from CDA immunity. While not videos to www.ifilm.com, for which activi- §255.5. Consumer endorsements and testi- reaching the CDA issue, one federal court ties it may well be treated as the actual monials must also “reflect the honest opin- has suggested, in dicta, that although online provider of the content rather than a user ions, findings, beliefs or experience of the providers have no duty to monitor for trade- distributing third-party content via a quali- endorser,” atypical results must be dis- mark infringement, contributory trademark fied service, having allegedly become closed, and the endorser cannot make infringement might be established if the actively involved in the selection and post- deceptive statements or claims that could defendant either: 1) intentionally induces ing of that content. not be substantiated by the advertiser. 16 another to infringe on a trademark; or 2) C.F.R. §255.1(a), 16 C.F.R. §255.2 and 16 continues to supply matter knowing that it MIGRATION OFFLINE C.F.R. §255.1(a). infringes or is used to infringe trademark Since CDA and DMCA protections do not Even if the CDA provides immunity from rights. Lockheed Martin Corp. v. Network apply to offline media, if UGC, such as a FTC civil enforcement actions for online Solutions, 985 F.Supp. 949 (C.D. Cal. 1997). consumer-created, 30-second ad, is subse- publication of UGC that violate such guide- Indeed, an online UGC contest has quently migrated to television, the sponsor lines, the advertiser is subject to a claim that already spawned such an action. Quiznos will need to clear all aspects of the content. the immunity does not apply in cases where was sued last year by its fast food rival Several companies have elected to shoot the advertiser should be deemed to have Subway as a result of a user-generated video entirely new ad spots based on user-gener- directed the content by designing a cam- contest called the “Quiznos v. Subway TV ated ads that have won online contests. paign that encouraged and facilitated the Ad Challenge,” where contestants were Even this approach may not be enough to illegal user activity. A similar theory was invited to compare a Subway sandwich to protect against theft of idea or copyright accepted by a Ninth Circuit decision that Quiznos’ product and post video entries on claims by third parties if the underlying ele- refusedto provide CDA immunity to Quiznos’ Web site (www.meatnomeat. ments that are re-shot infringe the rights of Roommates.com for users’ violation of fair com). In April 2007, a federal district court another. The advertiser in such a case will housing laws by specifying illegal prefer- denied Quiznos’ motion to dismiss the lack the meaningful indemnity it typically ences for tenants because the Web site oper- Lanham Act claim without prejudice based gets from its ad agencies and their insurance ator created a preference application with on putative CDA immunity, merely finding companies when professional ads are com- fields allowing users to list race, gender and that it was premature to consider whether missioned. Further, the involvement of sexual orientation preferences and, by the plaintiff could establish no facts that advertising agencies that are signatories to doing so, “is a content provider of these would preclude immunity. Doctor’s talent union collective bargaining agree- questionnaires and [accordingly] does not Associates, Inc. v. QIP Holders, LLC, 82 ments may violate such agreements if they qualify for CDA immunity.” Fair Housing U.S.P.Q. 2d 1603 (D. Conn. April 19, 2007). assist sponsors in preparing UGC commer- Council v. Roommates.com LLC, 489 F.3d While the case may eventually turn on alle- cials using non-union talent for broadcast. 921 (Ninth Cir. 2007), vacated for rehearing gations that Quiznos “altered or was other- en banc, 2007 US App. LEXIS 23922 (Ninth wise creatively involved with … the con- VIRAL MARKETING Cir. 2007), but see, Carafano v. testant videos,” the issue of whether Another emerging practice is to pay or Metrosplash.com, Inc., 339 F3d. 1119 (Ninth Lanham Act claims constitute “intellectual otherwise reward users for promoting, rec- Cir. 2003) (user profile created by respond- property” claims for which no immunity ommending or endorsing products or serv- ing to site questions and prompts was third- applies, or whether injunctive relief remains ices online via user blogs, user generated party content). Further, the sponsor’s activi- LJN’s Internet Law & Strategy November 2007

ties may not be limited to the acts of pub- disaffirm any attribution to the sponsor of and direction issues, revoking a license is lishing or distributing third-party content via user content or conduct and warn con- different from editing postings, and removal a qualifying service such that CDA immuni- sumers that the UGC may be inaccurate, of content upon termination of such a ty might apply. Accordingly, efforts should may preclude the chance of obtaining CDA license may be treated differently than be made to enable users to educate them- protection. However, the limitations enforcing content guidelines on UGC that selves on how to avoid infringing third- imposed by the DMCA and the CDA on the lacks licensed content. Again, however, the party rights and applicable laws, and cer- extent of control that can be exerted on law remains unsettled in this regard. tainly sponsors should not encourage or UGC in order to maintain the potential pro- invite activities that are clearly or likely tection those acts provide leaves open the CONCLUSION improper in this regard. In addition, associ- question of to what extent a sponsor can In sum, exploiting UGC and activating ating the sponsor’s own content with UGC police user activities in this regard. Again, a users to participate in promotional activities that contains inappropriate content, such as distinction may be able to be drawn carries substantial risk that the provider, false, deceptive or unsubstantiated product between content and conduct guidelines promoter and/or sponsor may be responsi- claims, may be enough to infect the spon- that merely preclude user rewards or dis- ble for the conduct and content of the users. sor’s content by implication. Accordingly, a qualify users from the opportunity to gain Care must be taken in designing these pro- sponsor that clearly discloses that UGC, and something of value (e.g., winning a contest), motions to mitigate these risks. Further, as the claims therein, are exclusively created or tied to a license to use sponsor’s content, will be discussed further in the third install- by the user and not substantiated or from those that result in the editing or ment, use of other parties’ Web sites neces- endorsed by the sponsor, may be at a lower removal of the user postings. sitates compliance with their terms and con- risk of claims by competitors or regulators ditions of use. It should be determined who for the UGC posted on the sponsor’s Web ADDRESSING THE RIGHTS TO UGC amongst the sponsor, the promotional firm site or as part of the sponsorship of a pro- In addition to third-party content, UGC and cooperating Web sites will be responsi- motion or other activities on another site, promotions need to take into consideration ble for potential liability, what indemnities and such disclosures should support the both the rights to the UGC created by the should be made as between these parties sponsor’s claim that the content is solely user and how users will be permitted to use and what insurance coverage is available to third-party content for which it should not the sponsor’s content. Both issues can be cover potential claims. In addition, as will be responsible. addressed through licensing arrangements be discussed in the next two installments, The Word of Mouth Marketing as part of the terms and conditions of the regulatory compliance with respect to Association (“WOMMA”) has promulgated a promotion. If the sponsor is seeking to avail sweepstakes and contests, collection and Code of Ethics calling for honesty of itself of the DMCA safe harbor, it will not use of consumer data and use of e-mails for relationship, opinion and identity, want to acquire all of the rights to the UGC, commercial purposes will be required to respecting the rules of the communications at least during the period in which the UGC operate a promotion that does not run afoul venue and protecting privacy and minors will be posted by the user on the sponsor’s of applicable law. (see, www.WOMMA.org/ethics/code). One Web site. Otherwise, the content becomes online promotional technique that clearly that of the sponsor and it will be a direct violates the WOMMA Ethics Code, and is infringer if the content is infringing. likely a deceptive and unfair advertising Similarly, an exclusive license to the spon- practice, is “astroturfing” — the practice of a sor may also preclude the DMCA safe har- few people posing as mass numbers of bor as being a form of ownership interest. If grass roots consumers or activists promoting the sponsor desires to eventually obtain all a particular cause. Certainly, there is no the rights to the submitted UGC, it can con- CDA protection for a sponsor’s own decep- sider a narrowly tailored option that might tive chat room seeding, astroturfing or post- be later exercised after the online portion of ing of false user profiles. See, e.g., 800-JR the promotion ends. As to the sponsor’s Cigar, Inc. v. GoTo.com, Inc., 437 F.Supp.2d content, a sponsor desirous of having its 273 (D.N.J. 2006) (no immunity for opera- own content included in the UGC should tor’s own activities benefiting its advertis- provide for a narrow, limited, revocable, ❖ ers); and Anthony v. Yahoo, Inc., 421 non-exclusive license tied to specific usage — — F.Supp.2d 1257 (N.D. Cal. 2006) (fraudulent- guidelines. This license will be similar to the ly posting false user profiles to induce sub- types of licenses content owners grant to scribers to a dating service was not third fan sites. The sponsor might also consider party content and thus immunity does not providing a content bin of specific content Reprinted with permission from the April 2007 edition apply). Similarly, encouraging or inducing that can be used and prohibit the use of of the LAW JOURNAL NEWSLETTERS - PATENT users to engage in such activity, or failing to other sponsor content. Though terminating STRATEGY & MANAGEMENT. © 2006 ALM Properties, Inc. All rights reserved. Further duplication without permis- provide disclosures in connection with a the content license for violating these guide- sion is prohibited. For information, contact 212-545-6111 or UGC or user participation promotion that lines does suggest CDA and DMCA control visit www.almreprints.com. #055081-04-07-0005