I highly recommend the excellent podcast by the team at Washington College of Law on User Generated Content (or Participatory Media as coined by one of the speakers).

The podcast includes a panel of speakers from high profile companies, firms and organisations with a big interest and (a lot of useful things to say) about getting the online copyright issues straightened out.  There is a lot of interesting discussion about the all important (at least in the US), Digital Millenium Copyright Act (‘DMCA’).

Some of the really interesting discussion centered on:

(a) how the successful (US) online companies have clustered around the various ‘safe harbours’ created by the DMCA – that makes sense.  A great analogy is used in which the safe harbours are actually islands in a sea of copyright confusion with the corollary that we should take care before throwing any companies back in the water by damaging the safe harbours.

(b) the uncertainties for users and content creators (participators) about what constitutes ‘fair use’ coupled with a genuine interest in complying with copyright law (according to research by the College of Law).

(c) the enormous role that college students play in infringement of copyright in online content and the various ways that this is being tackled – increasinglywith the assistance of the Universities they attend.

(d) the filtering technology that is being developed for participatory media platform providers to be able to automatically search for and remove infringing material (for example, linked to a system whereby content owners will register their content so that it is findable by the filters)

(e) the way that various aspects of the DMCA have not had their intended consequences – such as the enormous number of take down notices that can be sent by an automated engine – as in the case of the 150,000 sent by Viacom to Youtube in a single day, or the weak protection for people from misrepresentations in using take down notices (notwithstanding the ‘putback’ procedure that also exists).

(f) there’s more – but you get the picture.

General uncertainty can bring great opportunity to those who are willing to take risks, particularly if they can find a unique way to mitigate them.  I wonder how many companies are setting aside the time and energy to think strategically about de-risking their online presence from an IP perspective.