INTA Advanced Symposium: report 1

Day One of the Advanced INTA Symposium, held at the Gaylord Hotel and Convention Center, Grapevine, Texas, kicked off with a session entitled "It's all about the user! The IP challenges of user-generated content", moderated by Holly Campbell (ESPN).

James D. Nguyen (Foley & Lardner, US) was first to speak, taking the audience through an enyable tour of the user-generated websites and virtual reality sites that their children seem to live on. He explained how popular TV shows such as Laguna Beach and Pimp My Ride could reinforce their popularity by creating virtual world sites to promote their brands. James also talked the audience through mash-ups, which enable fans to create hybrid video or audio content of a type that may well bring IP owners to a state of fury but do not in general have the scope to damage the market for the original product. Some IP owners are now more liberal or market savvy in their response to mash-ups: Star Wars can now be licensed for mashing, with the prospect of user-generated results (appropriately monitored) being hosted on the Star Wars site.

Addressing the DMCA "Safe harbour" provisions, James focused on the qualifications for immunity for ISPs that cause the most difficulties, as well as the need for formulation of a policy for dealing with repeat infringers. How can IP owners pierce the shield to liability that the DMCA provides? Actual or constructive knowledge and financial benefit are the easy bits, but the burdens of proper notification and of showing that there has not been an expeditious removal of infringing materials are the tricky bits. And ISPs that host MMORPGs and seek to claim ownership of users' created content are asking for trouble if they want to rely on the "safe harbour".

James also raised the issues at the heart of John Doe v Geller, a case filed on 4 February 2008 involving the posting of a clip on to YouTube from a UK TV programme featuring the psychic Uri Geller. Geller asked for the clip to be taken down, which it was. Doe then sued, maintaining that false representations were made in the take-down notice with regard to whether there was an infringement of copyright or not. This case raised issues of misprepresentation and jurisdiction as well as IP, showing how complex the takedown procedure can be.

James concluded by asking if the DMCA, going back to 1998, is now outdated, since it focused on a relatively non-interactive form of the internet and sought to exempt ISPs from liability relating to emails and the like. It would be difficult to revise it, easier to leave it to the courts to do some fine-tuning.