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Limits of CDA Immunity For Claims Based on User-Generated Content
For several years, advertisers ' including entertainment content and technology companies ' have sponsored contests and other online promotional campaigns that allow users to create and publish content (user-generated content (UGC)) as a way to entice interaction with the brand or with a community associated with the brand. Knowing that engaging consumers is more valuable than bombarding them with banner and pop-up ads, online marketers are rushing to get Internet users to directly participate with their brands and involve bloggers, UGC, social networking sites and other virtual communities to do so.
An initial area of concern for website providers, promotions operators and sponsors concerning UGC and user participation is the distinct possibility that the user will infringe third-party intellectual property or personal rights, particularly copyright and an individual's right of publicity, and that the sponsor may be subject to related claims.
While there are, depending on how an online UGC campaign operates, potential safe-harbor protections and immunities available to the sponsor pursuant to the Digital Millennium Copyright Act of 1998 (DMCA), 17 U.S.C. '512 (available online at http://1.usa.gov/vvSvKc), and the Communications Decency Act of 1996 (CDA), 47 U.S.C. '230 (available online at http://bit.ly/ucKA3h), the scope of DMCA and CDA protections for advertisers and entertainment companies sponsoring UGC campaigns or websites hosting such a campaign is far from as broad as frequently assumed. (Note that the DMCA provides a potential safe harbor from financial liability of a service provider for copyright-infringing UGC posted to its service by a user.)
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