[A2k] User Generated Content Principles

[Andrea Glorioso]

http://www.ugcprinciples.com/index.html

The following companies support these principles:

Disney
CBS Corporation
NBC Universal
Dailymotion
Veoh
Viacom
Myspace.com
Fox
Microsoft

Copyright Principles for UGC Services

Leading commercial copyright owners ("Copyright Owners") and services
providing user-uploaded and user-generated audio and video content
("UGC Services") have collaborated to establish these Principles to
foster an online environment that promotes the promises and benefits
of UGC Services and protects the rights of Copyright Owners.  In this
context, UGC Services are services such as Soapbox on MSN Video,
MySpace, Dailymotion and Veoh.com, and not other technologies such as
browsers, applets, email, or search services.  While we may differ in
our interpretation of relevant laws, we do not mean to resolve those
differences in these Principles, which are not intended to be and
should not be construed as a concession or waiver with respect to any
legal or policy position or as creating any legally binding rights or
obligations.  We recognize that no system for deterring infringement
is or will be perfect.  But, given the development of new content
identification and filtering technologies, we are united in the belief
that the Principles set out below, taken as a whole, strike a balance
that, on a going-forward basis, will result in a more robust,
content-rich online experience for all.

In coming together around these Principles, Copyright Owners and UGC
Services recognize that they share several important objectives:  (1)
the elimination of infringing content on UGC Services, (2) the
encouragement of uploads of wholly original and authorized
user-generated audio and video content, (3) the accommodation of fair
use of copyrighted content on UGC Services, and (4) the protection of
legitimate interests of user privacy.  We believe that adhering to
these Principles will help UGC Services and Copyright Owners achieve
those objectives.

   UGC Services should include in relevant and conspicuous places on
their services information that promotes respect for intellectual
property rights and discourages users from uploading infringing
content.

   During the upload process, UGC Services should prominently inform
users that they may not upload infringing content and that, by
uploading content, they affirm that such uploading complies with the
UGC Service's terms of use.  The terms of use for UGC Services should
prohibit infringing uploads.

   UGC Services should use effective content identification technology
("Identification Technology") with the goal of eliminating from their
services all infringing user-uploaded audio and video content for
which Copyright Owners have provided Reference Material (as described
below). To that end and to the extent they have not already done so,
by the end of 2007, UGC Services should fully implement commercially
reasonable Identification Technology that is highly effective, in
relation to other technologies commercially available at the time of
implementation, in achieving the goal of eliminating infringing
content. UGC Services should enhance or update the Identification
Technology as commercially reasonable technology that makes a
meaningful difference in achieving the goal becomes available.

   If a Copyright Owner has provided: (1) the reference data for
content required to establish a match with user-uploaded content, (2)
instructions regarding how matches should be treated, and (3)
representations made in good faith that it possesses the appropriate
rights regarding the content (collectively, "Reference Material"),
then the UGC Service should apply the Identification Technology to
that content to implement the Filtering Process described below.  UGC
Services should ensure that reasonable specifications, as well as any
tools and/or technical support, for the delivery of Reference Material
are made available to Copyright Owners.  If a Copyright Owner does not
include in the Reference Material instructions regarding how matches
should be treated, the UGC Service should block content that matches
the reference data.

   The Identification Technology should use Reference Material to
identify user-uploaded audio and video content that matches the
reference data and should permit Copyright Owners to indicate how
matches should be treated.

   If the Copyright Owner indicates in the applicable Reference
Material that it wishes to block user-uploaded content that matches
the reference data, the UGC Service should use the Identification
Technology to block such matching content before that content would
otherwise be made available on its service ("Filtering Process").  The
Copyright Owner may indicate in the applicable Reference Material that
it wishes to exercise an alternative to blocking (such as allowing the
content to be uploaded, licensing use of the content or other
options), in which case, the UGC Service may follow those instructions
or block the content, in its discretion.

   Copyright Owners and UGC Services should cooperate to ensure that
the Identification Technology is implemented in a manner that
effectively balances legitimate interests in (1) blocking infringing
user-uploaded content, (2) allowing wholly original and authorized
uploads, and (3) accommodating fair use.

   UGC Services should use the Identification Technology to block
user-uploaded content that matches Reference Material regardless of
whether the UGC Service has any licensing or other business
relationship with the Copyright Owners who have provided such
Reference Material (except that UGC Services may require that
Copyright Owners enter into agreements with respect to the
specifications for delivery of Reference Material that are
commercially reasonable and that facilitate the provision of Reference
Material by Copyright Owners and promote the goal of the elimination
of infringing content).  If a Copyright Owner authorizes specific
users to upload content that would otherwise match Reference Material
submitted by the Copyright Owner, the Copyright Owner should provide
to the UGC Service a list of such users (a so-called white list).

   UGC Services may, at their option, utilize manual (human) review of
all user-uploaded audio and video content in lieu of, or in addition
to, use of Identification Technology, if feasible and if such review
is as effective as Identification Technology in achieving the goal of
eliminating infringing content.  If a UGC Service utilizes such manual
review, it should do so without regard to whether it has any licensing
or other business relationship with the Copyright Owners.  Copyright
Owners and UGC Services should cooperate to ensure that such manual
review is implemented in a manner that effectively balances legitimate
interests in (1) blocking infringing user-uploaded content, (2)
allowing wholly original and authorized uploads, and (3) accommodating
fair use.

   Copyright Owners should provide Reference Material only with
respect to content for which they believe in good faith that they have
the appropriate rights to do so, and should update rights information
as reasonable to keep it accurate.  The inclusion of reference data
for content by, or at the direction of, a Copyright Owner shall be
deemed to be an implicit representation made in good faith that such
Copyright Owner has the appropriate rights regarding such content.
Copyright Owners should reasonably cooperate with UGC Services to
avoid unduly stressing the Services' Identification Technology during
limited periods when Copyright Owners, collectively, may be providing
an overwhelmingly high volume of Reference Material.  UGC Services
should reasonably cooperate with Copyright Owners to ensure that such
Reference Material is utilized by the Identification Technology as
soon as possible during such overload periods.

   Promptly after implementation of Identification Technology, and at
intervals that are reasonably timed throughout each year to achieve
the goal of eliminating infringing content, UGC Services should use
Identification Technology throughout their services to remove
infringing content that was uploaded before Reference Material
pertaining to such content was provided.

   Copyright Owners and UGC Services should cooperate in developing
reasonable procedures for promptly addressing conflicting claims with
respect to Reference Material and user claims that content that was
blocked by the Filtering Process was not infringing or was blocked in
error.


   UGC Services and Copyright Owners should work together to identify
sites that are clearly dedicated to, and predominantly used for, the
dissemination of infringing content or the facilitation of such
dissemination. Upon determination by a UGC Service that a site is so
dedicated and used, the UGC Service should remove or block the links
to such sites. If the UGC Service is able to identify specific links
that solely direct users to particular non-infringing content on such
sites, the UGC Service may allow those links while blocking all other
links.

   UGC Services should provide commercially reasonable enhanced
searching and identification means to Copyright Owners registered with
a service in order: (a) to facilitate the ability of such Copyright
Owners to locate infringing content in all areas of the UGC Service
where user-uploaded audio or video content is accessible, except those
areas where content is made accessible to only a small number of users
(not relative to the total number of users of the UGC Service), and
(b) to send notices of infringement regarding such content.

   When sending notices and making claims of infringement, Copyright
Owners should accommodate fair use.

   Copyright Owners should provide to UGC Services URLs identifying
online locations where content that is the subject of notices of
infringement is found =96 but only to the extent the UGC Service exposes
such URLs.

   When UGC Services remove content pursuant to a notice of
infringement, the UGC Service should (a) do so expeditiously, (b) take
reasonable steps to notify the person who uploaded the content, and
(c) promptly after receipt of an effective counter-notification
provide a copy of the counter-notification to the person who provided
the original notice, and, at its option, replace the content if
authorized by applicable law or agreement with the Copyright Owner.

   When infringing content is removed by UGC Services in response to a
notice from a Copyright Owner, the UGC Service should use reasonable
efforts to notify the Copyright Owner of the removal, and should
permit the Copyright Owner to provide, or request the UGC Service to
provide on its behalf, reference data for such content to be used by
the Identification Technology.

   Consistent with applicable laws, including those directed to user
privacy, UGC Services should retain for at least 60 days: (a)
information related to user uploads of audio and video content to
their services, including Internet Protocol addresses and time and
date information for uploaded content; and (b) user-uploaded content
that has been on their services but has been subsequently removed
following a notice of infringement. UGC Services should provide that
information and content to Copyright Owners as required by any valid
process and consistent with applicable law.

   UGC Services should use reasonable efforts to track infringing
uploads of copyrighted content by the same user and should use such
information in the reasonable implementation of a repeat infringer
termination policy. UGC Services should use reasonable efforts to
prevent a terminated user from uploading audio and/or video content
following termination, such as blocking re-use of verified email
addresses.

   In engaging in the activities set forth in these Principles outside
the United States, UGC Services and Copyright Owners should follow
these Principles to the extent that doing so would not contravene the
law of the applicable foreign jurisdiction.

   Copyright Owners should not assert that adherence to these
Principles, including efforts by UGC Services to locate or remove
infringing content as provided by these Principles, or to replace
content following receipt of an effective counter notification as
provided in the Copyright Act, support disqualification from any
limitation on direct or indirect liability relating to material online
under the Copyright Act or substantively similar statutes of any
applicable jurisdiction outside the United States.

   If a UGC Service adheres to all of these Principles in good faith,
the Copyright Owner should not assert a claim of copyright
infringement against such UGC Service with respect to infringing
user-uploaded content that might remain on the UGC Service despite
such adherence to these Principles.

   Copyright Owners and UGC Services should continue to cooperate with
each other's reasonable efforts to create content-rich,
infringement-free services. To that end, Copyright Owners and UGC
Services should cooperate in the testing of new content identification
technologies and should update these Principles as commercially
reasonable, informed by advances in technology, the incorporation of
new features, variations in patterns of infringing conduct, changes in
users' online activities and other appropriate circumstances.