32 Colum. J.L. & Arts 471 (2008-2009)
The User-Generated Content Principles: The Motivation, Process, Results and Lessons Learned

handle is hein.journals/cjla32 and id is 479 raw text is: The User-Generated Content Principles: The Motivation,
Process, Results and Lessons Learned
Alan N. Braverman* and Terri Southwick**
The development of the user-generated content (UGC) Principles is useful to
examine not only as a particular negotiation, but also as a case study on how to deal
with the conflicts that inevitably arise at the intersection of technology and content.
The phenomenon of enormous growth of UGC sites presented both a threat and
an opportunity to copyright owners. UGC, of course, is not always user-generated;
it would more accurately be called user-posted content. The threat is that a good
percentage of the most heavily-viewed user-posted content is infringing. The
opportunity is that UGC technology allows content owners to connect more directly
and interactively with their consumers; both on such content owner's own sites and
on other UGC sites.
Dealing with both the threat and the opportunity has presented a considerable
legal challenge because the law surrounding UGC was (and continues to be)
hopelessly unsettled.
One of the most significant questions is whether the Digital Millennium
Copyright Act (DMCA) limitations on liability apply. The limitation on liability
for a service provider storing material at the direction of a user was written with a
service like AOL in mind. AOL offered each of its subscribers a certain amount of
server space for them to create their own home pages on the Internet.
AOL argued, successfully, that it should not be liable for content on those home
pages, as its only connection with the content was the blind storage of it. AOL
contended that because it did not, and presumably could not, monitor all of the
content on each individual home page, it should not be held monetarily liable for
infringing content. Once it became aware of infringing content, it agreed to block
access to or remove the infringing web pages from its server, but AOL argued that
its exposure to monetary relief should be limited.
UGC sites operate differently, however, and it was (and is still) unclear whether
the DMCA limitations are available to UGC site operators, and, if they are, whether
the site operators are disqualified from safe harbors due to various interactions with
the content (as opposed to AOL's blind storage).
This state of legal uncertainty created a legal dilemma, which is not uncommon
*  Senior Executive Vice President, General Counsel and Secretary, The Walt Disney Company.
**  Senior Vice President, Deputy General Counsel, The Walt Disney Company.

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