Who Owns User-Generated Content – The User or The Site?

User-generated content is all the rage these days on the web. While creating a site where most of the content is created by users is certainly the trendy approach, one question that we need to answer is who owns the Who Owns User Generated Contentcontent? Is it the user or the site owner?

User-Generated Content

Just what is user-generated content? Well, consider a site such as Facebook. Almost all of the content published on Facebook is created by users. Think about it. When you look at your Facebook page, how much of the information is produced by Facebook? Everything you read is coming from a third source whether it is you or some other content provider. It is a brilliant business model.

You can’t understate the value of user-generated content. To understand why, just consider an issue like search engine optimization. Google looks at over 200 different factors in determining how to rank sites. A couple of the factors are clearly how often the site adds content and how much of the content is unique.

Wikipedia is a platform full of user-generated content and is updated multiple times every day by users. Where do we find Wikipedia in the search engine results? If there is a page in Wikipedia for the keyword in question, you can expect to see that Wiki page in the top five positions in the search results.

Copyright

User-generated content can involve a number of different legal subjects. The most common and obvious is the issue of copyright.

As the names suggest, a copyright is the right to copy a work. When Stephen King writes a new novel, he owns the right to reproduce the book and sell it. The copyright is affixed automatically when King finishes the book. While it is true that filing for copyright with the Copyright Office in the Library of Congress is a smart move, it is not necessary to perfect a copyright.

This creates an interesting conundrum when it comes to user-generated content sites. This conundrum also answers our central question. The person who creates the material in question is the owner of that content.

As I write this, Lance Armstrong is being stripped of his titles for the Tour de France because of doping allegations. Let’s assume I log into my Facebook account and write a passionate defense of him in a post. People agree with the post and share it with their friends. Who owns the written text in the post? I do. Conversely, Facebook has no ownership rights in that text. Then how can Facebook use the comment without paying a royalty? We find the answer in the terms of the site.

Licensing

How does one get around the copyright issue? How do sites like Facebook and Twitter avoid being sued? The lawyers include user-generated content licenses in the terms of use. These licensing provisions give the site the right to publish and distribute the content without paying a royalty fee.

Forming A Contract

What most people fail to understand is the terms of a site act as a contract between the site owner and the person using it. For the contract to be binding, however, certain formalities need to be undertaken. In most jurisdictions, the site must require the visitor to affirmatively agree to the terms. This agreement is accomplished by requiring the user to click a box acknowledging they have read and agreed to the terms of use for the site.

Nobody Read Terms

A common argument I hear from webmasters and site owners goes something like this:

“Nobody reads terms of use, so I don’t need them.”

As a general notion, I think we can all agree most people don’t read the terms or privacy policy on a website. While a valid point, it is also irrelevant. If you get sued, two parties are definitely going to be reading the terms of use for your site – the judge and jury. If you have no terms or they are written poorly, you are in for a world of hurt. In my mind, this makes getting your terms of use dialed in correctly a no-brainer.

In Closing

There is little doubt that user-generated content sites are here to stay. If you have one or are considering opening one, it is vital that you understand the copyright is a huge issue that you must address in terms of use for the site. Members own the copyright to the content they publish on the site. You must obtain a license clarifying the use of the user-generated content.

Richard A. Chapo, Esq.