Page 177 - A Study on the Role of UGC Platforms in Copyright Law：An Intermediary-oriented Approach

A Study on the Role of UGC Platforms in Copyright Law: Chapter 6 UGC Platforms’ Entitlement to UGCs
An Intermediary-oriented Approach

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parties to enter into the contract. The intention element is easy to establish in ToUs/ToSs.
A UGC platform’s intention to create a legal relationship with its users is clearly manifested
in its ToU/ToS. A UGC creator indicates his/her intent to enjoy the services provided by the
UGC platform upon uploading his/her UGC to the platform. However, the criteria for the
other elements are different from traditional contracts.
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The validity of an offer usually depends on how certain and definite it is. However, a
ToU/ToS is concerned more with a procedural element: whether the platform user has been
given sufficient notice of the offer to establish actual or constructive knowledge of it. With
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respect to the acceptance element, in traditional contracts, acceptance is either verbal or in
writing. Nevertheless, most ToUs/ToSs do not require any affirmative action. The mere use
of the UGC platform may qualify as acceptance. As for the consideration, the courts have
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tended to focus on whether consideration exits rather than whether it is fair. However, due
to the users’ inability to negotiate the terms and the highly concentrated market dominated
by a few UGC platforms providing similar services, the appropriateness of consideration
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under a ToU/ToS is vital to the scope of how much entitlement to UGCs should be
transferred to the UGC platform. In terms of capacity, the legal age to enter into a contract is
18. Nevertheless, many platform users are minors, which has generated further controversy
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over the validity of ToUs/ToSs.
As can be seen from the discussion above, the validity and enforceability of ToUs/
ToSs is contingent not only on the principles of contract law, but also on the character of
the adhesion contract and the market conditions of UGC platforms. Before moving to detail
discussion of the conscionability standard that ensure the validity and enforceability of
ToUs/ToSs, I would like to explain the necessity for establishing legal standard for ToUs/
ToSs, or say, the necessity for legal intervention of the UGC industry which has developed
prosperously despite the lack of law governing the exploitation of UGCs.
Debora Spar identified four phases describing how an industry reacts to new technology:

54 Community Legal Information Center, ‘What are the Basic Requirements for Making A Valid Contract?’ <http://www.hkclic.
org/en/topics/businessAndCommerce/setting_up_business_in_Hong_Kong/making_a_business_contract/q1.shtml> accessed
19 May 2019.
55 Hugh Beale, Chitty on Contracts, vol 1 (33 edn, Sweet & Maxwell 2015) Part 1, Chapter 1, Section 3 (c).
56 See, e.g., Cvent, Inc. V. Eventbrite, Inc., 739 F.Supp. 2d 927, 937 (E.D.Va. 2010); Southwest Airlines Co. v. Boardfirst, LLC,
No. 3:06-CV-0891-B, 2007 U.S. Dist. LEXIS 96230, 2007 WL 4823761 at *5 (N.D. Tex. Sept. 12, 2007); Ticketmaster Corp.
v. Tick-ets.com, Inc., No. CV99-7654, 2003 U.S. Dist. LEXIS 6483, 2003 WL 21406289, at *2 (C.D. Cal. Mar. 7, 2003).
57 Beale (n 55) Part 1, Chapter 1, Section 6 (c).
58 Niva Elkin-Koren, ‘User-Generated Platforms’ in Rochelle Dreyfuss, Diane L. Zimmerman and Henry First (eds), Working
within the Boundaries of Intellectual Property (Oxford University Press 2010) 177.
59 Lessig emphasized the significance of legalizing remix since it is unreasonable to put teenagers to jail. Lessig (n 45) 25.
Peter Menell also pointed out that mashup and other kind of UGCs is a way for teenagers to develop their own identity and
therefore Menell proposed a compulsory license scheme. Peter S Menell, ‘Adapting Copyright for the Mashup Generation’
(2015) 164 University of Pennsylvania Law Review 441, 445. Steven Hetcher discussed the conscionability of ToUs/ToSs
between online intermediaries and minors. Steven Hetcher, ‘User-Generated Content and the Future of Copyright: Part Two-
Agreements Between Users and Mega-Sites’ (2007) 24 Santa Clara Computer & High Technology Law Journal 829, 855.

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