Academic journal article Harvard Law Review

The Principles for User Generated Content Services: A Middle-Ground Approach to Cyber-Governance

Academic journal article Harvard Law Review

The Principles for User Generated Content Services: A Middle-Ground Approach to Cyber-Governance

Article excerpt

The debate over how, whether, and by whom the Internet should be regulated has occurred mostly at the extremes: some have argued that formal regulation of the Internet is impossible and undesirable, advocating for self-governance and heavy reliance on private arrangements, (1) while others have argued that formal, traditional regulation is possible, inevitable, and ideal. (2) The recently announced Principles for User Generated Content Services (3) (Principles), a set of guidelines negotiated among various industry stakeholders that takes existing formal copyright law as its starting point and background assumption, illustrate that self-governance and traditional regulation can complement one another. The Principles therefore suggest the possibility and promise of a middle-ground approach to online governance. Their strengths and weaknesses shed light on what an ideal middle-ground approach might look like. In this approach, self-governance and private arrangements would operate within a generalized legal framework instead of replacing official regulation altogether. In addition to providing clear background rules, that legal framework would ensure that private arrangements adequately take into account the interests of all constituencies.

In October 2007, leading commercial copyright owners, including CBS and Disney, and YouTube-like user-generated content (UGC) services that display and distribute user-uploaded and user-generated audio and video content (4) announced that they had agreed on the Principles. (5) So long as UGC services followed the Principles--by, for example, using state-of-the-art filtering software and displaying information about the importance of intellectual property rights--copyright owners would not sue them for copyright violations committed by the services' users. (6) Because the agreement is not legally enforceable, it is most accurately described as an informal understanding among the participating parties and not as a binding contract. (7) Although the Principles took the existing U.S. copyright regime and associated enforcement mechanisms as their starting point, the parties came up with their own rules about what private entities would do to further the competing interests underlying copyright law: encouraging the production of creative works while ensuring that people are able to access, enjoy, and build upon them. Thus, the Principles represent self-governance at the secondary level: the privately drafted and privately agreed-upon Principles indicate how the law will be followed and when violations will give rise to civil lawsuits. (8)

The Principles show that cyberspace is evolving toward a model of negotiated self-governance against a background of legally enforceable rules. The very need for the Principles illustrates the failure of traditional law as a sole, sufficient solution to the problem of online copyright infringement, but the Principles nevertheless build upon traditional law. To be sure, the negotiated settlement occurred in the shadow of litigation, but it also illustrates the continued vitality of cooperation and self-regulation as drivers of online behavior.

The Principles' reliance on traditional legal rules illuminates the crucial need for courts and legislatures to develop and enforce clear, sensible rules that are sufficiently general so as not to mandate the use of particular technologies or methods, which could stymie development and innovation. At the same time, the absence of certain parties at the negotiating table shows that there may be room for traditional regulators to step in and at least ensure fair representation at the time bargains are being struck.

This Note begins, in Part I, by summarizing the literature on cyber-governance, tracing commentators' evolving attitudes toward self-governance and private arrangements. Part II describes the Principles and their development, focusing on the threads of cooperation and private arrangements underlying the Principles. …

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