Licensing of user-generated content. Miloš Novović, Universitetet i Oslo Det juridiske fakultet, Institutt for privatrett - PDF

Licensing of user-generated content Miloš Novović, Universitetet i Oslo Det juridiske fakultet, Institutt for privatrett You grant Spotify a non-exclusive, transferable, sub-licensable, royalty-free, perpetual

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Licensing of user-generated content Miloš Novović, Universitetet i Oslo Det juridiske fakultet, Institutt for privatrett You grant Spotify a non-exclusive, transferable, sub-licensable, royalty-free, perpetual (or, in jurisdictions where this is not permitted, for a term equal to the duration of the Agreements plus twenty (20) years), irrevocable, fully paid, worldwide licence to use, reproduce, make available to the public (e.g. perform or display), publish, translate, modify, create derivative works from, and distribute any of your User Content in connection with the Service through any medium, whether alone or in combination with other content or materials, in any manner and by any means, method or technology, whether now known or hereafter created. Aside from the rights specifically granted herein, you retain ownership of all rights, including intellectual property rights, in the User Content. Where applicable and permitted under applicable law, you also agree to waive any moral rights (or the equivalent under applicable law) such as your right to be identified as the author of any User Content, including Feedback, and your right to object to derogatory treatment of such User Content. You specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook By use we mean use, run, copy, publicly perform or display, distribute, modify, translate, and create derivative works of. Use in a commercial? Keep forever? Sell? Thesis structure I Introduction and methodology II Private International Law III Survey of Contractual terms IV Validity of UGC licenses under US, EU and Norwegian law V Theoretical implications VI Substantive reform proposals Not covering Professional content Possible tort claims outside the scope of copyright law (privacy, personality rights, defamation, emotional distress, etc.) Survey of contractual terms Comparison structure How and when is the license granted? To whom is the license granted? Which rights are given? Does license contain any additional terms? Is license subject to certain limitations? How long does the license last? Are licensing provisions standardized? To whom is the license granted? Which rights are given? Which rights are given? Which rights are given? Use Distribute Copy Display, perform, publish, make available Create derivative works Electronically process Retain Otherwise fully exploit List information regarding Subject to which limitations? Service A : Facebook B : Foursquare C : Goodreads D : Google E : Instagram F : LinkedIn Limitation(s) you specifically give us the following permission, subject to your privacy and application settings We may use your User Submissions in a number of different ways in connection with the Site, Service and Foursquare s business as Foursquare may determine in its sole discretion for any purpose at the sole discretion of Goodreads The rights you grant in this license are for the limited purpose of operating, promoting, and improving our Services, and to develop new ones. license to use the Content that you post on or through the Service, subject to the Service's Privacy Policy These rights are limited in the following ways: a. You can end this license for specific content by deleting such content from the Services, or generally by closing your account, except (a) to the extent you shared it with others as part of the Service and they copied or stored it and (b) for the reasonable time it takes to remove from backup and other systems. b. We will not include your content in advertisements for the products and services of others (including sponsored content) to others without your separate consent. However, we have the right, without compensation to you or others, to serve ads near your content and information, and your comments on sponsored content may be visible as noted in the Privacy Policy. c. We will get your consent if we want to give others the right to publish your posts beyond the Service. However, other Members and/or Visitors may access and share your content and information, consistent with your settings and degree of connection with them. d. While we may edit and make formatting changes to your content (such as translating it, modifying the size, layout or file type or removing metadata), we will not modify the meaning of your expression. e. Because you own your content and information and we only have non-exclusive rights to it, you may choose to make it available to others, including under the terms of a Creative Commons license. Additional terms? Standardization? Form and legibility? By posting any User Content on the Service, you expressly grant, and you represent and warrant that you have a right to grant, to Goodreads a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, and to grant and authorize sublicenses of the foregoing for any purpose at the sole discretion of Goodreads. Flesch-Kincaid grade level test: 47.7 Gunning Fog index: Flesch-Kincaid reading ease: [REF: 0-100; HBR: 32] Form and legibility? Why? Draft broadly to prevent infringement claims Deep learning Behavioral research Ad targeting Use of user content in advertisements Looking ahead Sale of assets Why? The Holy Grail of advertising. What does the law say? What to analyze? Formation issues ( Are licenses properly formed contracts? ) Interpretation issues ( How to construe the scope? ) Contractual defenses ( Can licenses be invalidated as unfair? ) Copyright defenses ( Can platform providers use content even without a valid license? ) Remedies ( What kind of remedies are at user s disposal? ) US law Formation issues Likely to be held properly formed (Offer + Acceptance + Consideration) Interpretation issues Very likely to be broadly construed the courts are not assessing reasonableness Conditions vs. covenants Contractual defenses Unconscionability doctrine is virtually impossible to apply Copyright defenses Platform providers may claim existence of an implied license or fair use Remedies Depend upon type of breach Copyright: Actual Harm + Profits; Statutory damages Contractual: Restitution (potentially punitive damages) US: Tendencies Consent has become irrelevant Assent devolves to fictional or constructive assent, then to fictional or constructive opportunity to assent, then to notice that the terms exist, and then to fictional or constructive notice of terms. Fictional or constructive notice further devolves to as-if or hypothetical consent, and from there to the elimination of consent entirely; that is, to mere (allegedly) efficient rearrangement of entitlements. (Radin) The courts are ignoring copyright! Consider Cohen v. Facebook: A more natural reading of the [licensing] provision is that it gives Facebook a worldwide license to reproduce any pictures or text posted by a user, subject to any privacy settings, that would insulate it from any copyright claims by the user, whether or not the reproduction was made on Facebook. US: Formation [Facebook, Inc.'s Motion to Dismiss First Amended Class Action Complaint] Furthermore, even if Plaintiffs' (intellectual) property allegation were properly supported (which it is not), it would still fail. First, the Court has already found that, even under a more limited reading of Facebook's SRR than Facebook asserts, the SRR gives Facebook a worldwide license to reproduce any pictures or text posted by a user, subject to any privacy settings, that would insulate it from any copyright claims by the user.... Plaintiffs' claim thus would clearly fail if it is premised on copyright law. US: Tendencies Privacy policies cannot restrict the scope of the license: MDY v. Blizzard: there must be a nexus between the condition and the licensor's exclusive rights of copyright; [ ] Were we to hold otherwise, Blizzard or any software copyright holder could designate any disfavored conduct during software use as copyright infringement, by purporting to condition the license on the player's abstention from the disfavored conduct. Is there a nexus between privacy and copyright? Garcia v. Google: In broad terms, the protection of privacy is not a function of the copyright law... To the contrary, the copyright law offers a limited monopoly to encourage ultimate public access to the creative work of the author. [ ] Likewise, authors cannot seek emotional distress damages under the Copyright Act, because such damages are unrelated to the value and marketability of their works. US: Conclusion The courts are struggling to separate between the issues of ambiguity, intent, consent, and scope; they are also ignoring copyright. Given the broadly drafted agreements, the limited reach of the unconscionability doctrine, and the great likelihood that any limitations will be held to be contractual in nature, users are unlikely to succeed on the infringement claim, no matter how their content gets used. They might have other claims. But these require them to show harm. Ultimately, users relinquish control. EU No harmonized licensing rules. Directive on Unfair Terms: Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. assessed at the time of contracting Right transfer itself is still less problematic than individual use scenarios! New initiatives do not provide more robust control mechanisms Norwegian law More willingness to depart from the wording of the contract: Forventningsprinsippet Interpreation in favor of author/consumer Avtaleloven 36/37: Allows for broader inquiry into reasonableness than US doctrines Remains difficult to apply, especially in copyright cases Markedsføringsloven 22: Allows for broader control Might not be a good solution: one shoe fits all problem Åndsverkloven 3 Problem: Remedies What to do? Gordian knot: Copyright law Contract law Private international law Consumer protection law Arbitration law Main problem: Consent and remedies Path to reform #1: 1) Removal of party autonomy in choice of law and forum [mandatory application of copyright and contract law of forum + exclusive jurisdiction of the court of the consumer s residence] 2) Statutory remedies in cases where there is unforeseeable commercialization of work What to do? Path to reform #2: 1) Extended collective licensing of user-generated content Path to reform #3: 1) Establish a law-mandated software standard which requires users to authorize each type of use, using clear examples 2) Any unauthorized use would constitute a breach of law resulting in statutory damages Open questions Norwegian law? Harm analysis? What s next? Thank you!
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