What the Law Says About User-Generated Content

Red vs BlueMost sites these days are a mixture of content created by the site’s creator and content uploaded by those who visit it.

The exact formula changes depending on the site itself. For example, a less-travelled blog may have thousands of posts by the author and only a handful of comments by readers. On the other hand, a popular forum may have thousands of times more posts by the community than the admins.

But this mashup creates a serious problem legally. Your rights and obligations vary wildly depending on if the content on your site is from your hand or the hand of a visitor.

These distinctions are going to be getting a lot more attention in the coming months as Digg relaunched to strongly feature content from its editors, changing the dynamics of that site.

So, if you’re running a website, whether it’s a blog, forum or something else altogether, it’s important to understand the differences legally and what you need to do to protect yourself from the various legal threats that come with each type of content.

Copyright

Copyright law is the area of law that protects creative works of authorship and prevents them from being copied and distributed without permission from the copyright holder, usually the author.

For Your Work

For anything that you post, you hold the copyright in it. The same is true for any employees you have and any thing that is created as a work for hire for your site.

When dealing with the works of others, you are responsible for any infringements you commit. If you upload infringing material to your site, be it text, images, audio or video, you are responsible for it and can be sued for it. In short, be very careful that everything you put on your site is non-infringing, making it best to always get permission before using the works of others.

For Your Readers

You do not hold the copyright in the works uploaded by users. Typically the exact rights that the user grants you to use in any uploaded works is governed by the license you have for that submission (which is why it’s a good idea to write a TOS for your site). However, barring such an agreement, the terms are covered by an implied license, meaning a license that’s granted by the actions of the user in submitting their work for your site.

If a user uploads infringing material to your site, you may be protected. In the U.S., the Digital Millennium Copyright Act (DMCA) protects hosts and others who accept and host content on behalf of third parties. However, you need to read the law itself to make sure your site qualifies and, if you want that protection, consider registering a DMCA agent with the U.S. Copyright Office.

At $105 it isn’t cheap, but it may be well worth it for the peace of mind if you accept a lot of content from users.

Trademark

Trademark governs business names, logos, slogan, product names and other items that identify a business, product or service in the marketplace. The goal is not to prevent copying, but to prevent confusion and impersonation.

For Your Work

If you use your site for any kind of business, you likely have at least some degree of trademark protection over elements such as your name, logo, etc.

However, any trademark infringement you do on your site is a potentially huge issue. It could, theoretically, result in you losing your domain, having your site shut down or being sued. In short, if you’re using marks from another entity, make sure to either get clearance to use them or that you are using them in a non-infringing way.

For Your Readers

Your readers may bring their trademarks from outside, such as using their business name as their username on the site, but that does not give you permission to use that mark in a way that goes beyond the relationship that exists. You can say that Company X posted a comment here, but you can not imply a relationship that does not exist.

However, if your readers post trademark infringing items, such as faking being an employee for a company, there’s a lot of questions as to what your liability is. There’s no DMCA-like safe harbor protection for trademark.

You’re best to remove any and all trademark infringing items from your site when notified as there could be contributory liability if you don’t.

Defamation

Defamation law is an area of law designed to protect individuals and businesses against having their reputations harmed by hurtful and untrue statements. Most defamation on the Web is treated as libel, or written defamation.

For Your Work

The law is fairly clear here, if you post defamatory statements on your site, you can be sued and you are liable for them. It really is that simple.

It’s important to make sure that any negative statements you make are factual and provably so to avoid being sued and owing damages for false, harmful statements.

For Your Readers

For your readers, the situation can be different. While they are responsible for defamatory statements they post, Section 230 of the Communications Decency Act prohibits the people who provide a platform for defamatory speech from being treated as the speaker.

In short, you have no obligation to remove defamatory speech from your site, even when notified that it is defamatory. However, you may be asked to help identify the source of the defamatory statements and, depending on the type of community you want to run, it may be best to remove it regardless of what the law says.

However, you should take comfort that you can not be successfully sued (in the US) for libelous speech uploaded by your users.

Bottom Line

In the end, if your site is going to be a mix of two different content sources, you need to be aware of your legal obligations when dealing with both of those sources.

The obligations and rights you have when your readers post something are different than the ones you have over your work. It’s important to be aware of those differences so you know how to react when and if legal challenges arise.

Failure to do so could either find you being sued needlessly or, just as bad, giving up rights that you didn’t know you had.

About jonathan

Jonathan Bailey founded and continues to write at Plagiarism Today, a site about content theft and copyright issues on the internet. He also manages CopyByte, a company that protects online content, and writes a regular column for BloggingPro.

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Comments

  1. Does this mean I have to read the TOS on EVERY blog I comment on, to determine if they think they’re entitled to claim copyright on my comments? If that’s the case, I’m going to simply stop commenting anywhere.

    • Ideally, yes. But you don’t have to read the whole thing. I just usually do a search for the word copyright and read those few sentences. Should only take a second with how much boilerplating there is in that area.

      • I think they have to make it very, very prominent to count, though. They can’t just bury it, then claim it was in there and that you agreed to it by commenting. Also, what happens if you comment, and they later add a copyright claim – they’d have to provide notice of the change, and couldn’t apply it to earlier comments that are no longer under your control. Bloggers can also edit comments and change dates – it get too complicated. To take this to the point of ridiculousness, what if I add boilerplate that says, “Acceptance and publication of this comment constitutes this blogger’s agreement that this comment is Copyright 2012 Holly Jahangiri, and this constitutes a one-time license to display the comment on one blog.”? Does that mean we all have to moderate all comments from now on?

        • Also, what about the rights of the web host? I’m a third party to any contract between the blogger and the hosting company – does the hosting company potentially have any copyright claims to my work – e.g., my comments?

          You know, it sounds ridiculous, but the more I think about all the open questions, the more I want to NOT comment anywhere. (Except here. Because, you know, I’ll just give you these. No charge. In perpetuity. But non-exclusively. And non-commercial use only. And if you do ever decide to publish a book and quote me, then… we’ll have to talk. Maybe you can buy me a Hurricane.)

  2. Wow. I didn’t even know this. I always thought the site owner was liable regardless of who posted the content due to the difficulty in accurately determining who actually posted the content

    Now, here’s my question, and one that sounds somewhat spurious when I don’t intend for it to…I’m Canadian. You’re American. I decide to post a comment on PT with a copyrighted image from a photographer in the comment. You allow it…or it just slips through for some other reason (far more likely). The photographer finds out about the image. How does the liability work in this specific set of circumstances, given that 1) there’s a transborder element and 2) the DMCA doesn’t apply to non-Americans?

    • If you posted it, there wouldn’t be much difference. You would still be liable under Canadian law (they would be free to sue you there) and I would still be protected under the DMCA. Reverse the roles and it’s a bit more interesting but there are similar protections in Canada for hosts, but it doesn’t work on a notice-and-takedown system like in the US but a notice-and-notice where you’d be required to get in touch with me for posting the comment and ask me to remove it (though you wouldn’t be liable if I didn’t).

      Does that help some?

  3. Thanks, Jonathan. It actually did…not for anything I have right now, but for a future idea I have.

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