Wednesday, November 21, 2007

Harnessing User Content [Legal Technology]

Marketers are tapping into the user-created content phenomenon and running UGC contests and other promotions online, sometimes promising to run the winning video as a television commercial. Marketers are engaging in online promotions within the virtual communities of social networking and massively multiplayer online games (MMOGs). In addition, online promotions frequently encourage certain online user activities, such as recommending products to friends on their blogs and sending e-mails about a product or service to their friends, sometimes by rewarding such activities with cash, coupons, prizes or sweepstakes entries.

UGC presents a host of potential legal problems, such as third-party intellectual property infringement (and in recent years, we have seen a great deal of litigation generated in this area). Sponsors and promoters that engage users in their promotions run the risk that user conduct and content will be attributable to them and that they will be deemed responsible for what the users say and do in connection with the promotion. In addition, the use of Web sites and Internet services are subject to the terms and conditions of each provider, and promotions must follow the rules of the applicable venues.

The combination of the ease in which digital media tools enable content creation and the ability to publish and distribute that content via the Internet has led to a proliferation of UGC. Social networking sites, MMOGs, blogs and UGC sites, such as YouTube, Facebook and MySpace, are immensely popular. Television and cable networks are developing vibrant online sites to create a two screen experience; offering viewers the ability to interact, participate and create via the online offering. For example, on, the online offering of Al Gore's youth-oriented cable net Current TV, users can connect with each other, contribute video programming that has the potential to migrate to the cable network and even create commercials for the network's advertisers. 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 are involving bloggers, UGC and social networking sites and other virtual communities as a way to do so. In the MMOG Second Life, for example, dozens of real-life brands have established themselves within the game environment, and ad insertion functionality and product integration are being added to many online games.

An initial area of concern for Web site providers, promotions operators and sponsors with respect to UGC and user participation is the distinct possibility that the user will infringe third-party intellectual property or personal rights. However, there are two laws that provide the possibility that the Web site that hosts such content is not liable for such content.

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