Page 182 - 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

94
element. As the Ninth Circuit Court of Appeals explained, ‘the test is whether a reasonable
95
person would, from the conduct of the parties, conclude that there was a mutual agreement’.
Although silence cannot be regarded as acceptance of an offer under classical contract
law, the courts have held that in the case of adhesion contracts, an offeree's silence may be
96
deemed consent if the offeree continues to use the website or retains the benefit offered.
Compared with the assent element, the notice element has been more significant and
controversial. In my empirical study of over 30 UGC platforms hosting different categories
of works, most of the ToUs/ToSs were displayed via a hyperlink and informed users that
they would be bound once they accessed the UGC platform or used any service provided
by the platform (except Overclocked Remix and Kwai). Thus, these ToUs/ToSs fell within
the category of browse-wrap contracts. Generally, most ToUs/ToSs are also displayed on
the sign-up page and users are reminded to click the ‘I agree’ button to continue the sign-
up process. In this sense, most ToUs/ToSs have the dual characters of both the browse-wrap
contract and the sign-in-wrap contract. Though the notice for the ToU/ToS only appears
97
once in the registration process and is unavailable to unregistered users who access the
98
platform, unregistered users who do not click the ‘I agree’ button on the sign-up page are
also bound by the ToU/ToS. To determine whether unregistered users have adequate notice
of the ToU/ToS by which they are bound, the focus should be on the conspicuousness and
99
placement of the ToU/ToS on the webpage. In my dataset (Appendix 16), most of the UGC
platforms buried the hyperlink to the ToU/ToS at the bottom of the homepage, usually in a
line with several other hyperlinks such as ‘Help’, ‘Contact Us’, and ‘Privacy Policy’. Some
platforms even hid the hyperlink to the ToU/ToS in the settings bar, so that users would
not see the ToU/ToS unless they clicked to open the settings bar. According to the case law
discussed above, these kinds of placement could not have provided users with adequate
100
notice of the ToU/ToS to users.
I suggest that the hyperlink to ToU/ToS should be conspicuously exhibited in large bold
font on each webpage that users are likely to see without paying much attention. Although
there are no ‘bright-line’ rules for determining the conspicuousness of a hyperlink, some
have suggested that the hyperlink to ToU/ToS should be placed in the upper left-hand corner
of the homepage. As all webpages are opened from the upper left-hand quadrant, placing
the hyperlink in the same area presumes that users will view the ToU/ToS when they open

94 Cases that adopt objective criteria: ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996); Bowers v. Baystate Technologies,
320 F.3d 1317 (Fed. Cir. 2003). Cases that deploy subjective criteria: Klocek v. Gateway, Inc., 104 F. Supp. 2d 1332 (D. Kan.
2000); Specht v. Netscape Communications Co., 306 F.3d 17 (2d Cir. 2002).
95 Norcia v. Samsung Telecom, 845 F.3d 1279, 1285 (9th Cir. 2017).
96 Ibid. Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004).
97 Except for IMDb, the ToU of which appear in both the sign-up page and every sign-in page afterwards.
98 Only five UGC platforms require registration as a condition of access: Tumblr, Quora, Zhihu, Twitter, Facebook.
99 See supra notes 85-92 and accompanying text.
100 Ibid.

• 168 •