User-Generated Content

User-generated content (“UGC”) includes any and all material on websites and other media sources produced by website users. In essence, it is different from a website that generates its content by paid professionals. Section 230 of the Communications Decency Act (“CDA”) protects the provider of an “interactive computer service” from liability as the publisher or speaker of any information provided by another information content provider. It specifically states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

A provider of interactive computer service has certain obligations. For example, it must notify its customers that parental control protections (e.g., computer hardware, software, or filtering services) are commercially available that may assist the customer in limiting access to material that is harmful to minors. The notice shall identify, or provide the customer with access to information identifying, current providers of such protections. Accordingly, “interactive computer service" means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.

However, the immunity granted under Section 230 is not absolute. For example, it does not apply to intellectual property claims (e.g., trademark, patent, or copyright infringement). This section neither limits the enforcement of criminal statutes nor applicable communications privacy laws (e.g., the ECPA).

The Digital Millennium Copyright Act (“DMCA”) implements two 1996 World Intellectual Property Organization (“WIPO”) treaties: (i) WIPO Copyright Treaty; and (ii) WIPO Performances and Phonograms Treaty. The DMCA also addresses a number of other significant copyright-related issues.

The DMCA is divided into five titles: Title I, the “WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998,” implements the WIPO treaties. Title II, the “Online Copyright Infringement Liability Limitation Act,” creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities. Title III, the “Computer Maintenance Competition Assurance Act,” creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair. Title IV contains six miscellaneous provisions, relating to the functions of the Copyright Office, distance education, the exceptions in the Copyright Act for libraries and for making ephemeral recordings, “webcasting” of sound recordings on the Internet, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures. Title V, the “Vessel Hull Design Protection Act,” creates a new form of protection for the design of vessel hulls.

The DMCA grants “safe harbors” that safeguard online service providers from legal liability against third-party’s actions which constitute copyright infringement. However, there are no safe harbors for online service providers related to trademark infringement. In essence, liability depends upon whether the online service provider had any control and capability to monitor the instrumentality used by the third party to infringe upon the claimant’s trademark rights.

This legislation makes the production and dissemination of technology, devices, or services intended to circumvent measures, also known as digital rights management, which manages access to copyrighted works illegal. It is unlawful to circumvent an access control, whether or not there is actual infringement of copyright itself. In addition, it increases the penalties for copyright infringement on the Internet (i.e., world-wide-web).