User Generated Content Principles. Did you hear about it?

User generated content (UGC) is one the most confusing, and controversial, areas of the law, so having some guiding principles seems like a good idea. Several very prominent content owners (e.g. myspace, disney, cbs, fox, microsoft, sony, viacom and others) got together and came up with these principles, and posted them for everyone to see (Link). As part of my work with a Boston Venture Capital firm, I thought I would review these and provide some insight into the identification technology which is becoming somewhat common on UGC sites. 

Identification Technology.  Not sure if you realized it or not, but technology now exists where a UGC site can scan the video or audio files you upload and check its signature against a database provided by the copyright owners. If they get a match, then someone at the UGC site will probably take a look at the file. Under current law, and as suggested in these principles, that does not mean that the content is coming down, as it really means that someone will have to review it for ‘potential’ infringement issues.

Fair Use. What is going on here is that the concept of Fair Use is playing its role. Essentially, if the content is considered a fair use then the UGC site should leave it up, but if not then they can look at taking it down. Without this technology, the copyright owners have to continuously search for infringing content (which is not easy) on every UGC site, and then send what are called ‘take down notices’ under the Digital Millennium Copyright Act (a discussion for another day). So my sense is the UGC industry wants this technology to become a ‘best practice’ or ‘industry standard,’ as the UGC sites are not required by law to use this identification technology. 
 So the good news is this identification technology is becoming more widespread and available, but the law is still playing its role in the analysis (i.e. fair use). I doubt that the fair use analysis can be something that is subject to a technological solution like the identification technology, as it is inherently and intentionally subjective.
Any UGC company seeking venture funding or growth venture capital may want to take a read, to see what at least some in the industry consider a best practice or industry standard in monitoring for infringing video and audio content.