Page 183 - 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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the webpage of the UGC platform. I endorse this suggestion but argue that it only applies
to webpages accessed by PCs. With the advances in smartphones, most users visit UGC
platforms through apps installed on their smartphones and other mobile devices (89.37%
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indicated this in my survey). All activities take place within the app and users do not know
when they are opening new webpages. Consequently, the hyperlink to ToU/ToS should be
accessible on each page of the app. As navigation keys, such as the home, menu and back
keys, are frequently displayed at the bottom of the device, the hyperlink to ToU/ToS should
also be placed at the bottom of each page in an app.
In the full text of ToUs/ToSs, some material clauses related to UGC platforms’
exploitation of UGCs should be highlighted to specifically direct users’ attention to them.
This would include such clauses as those pertaining to the ownership of UGCs, the licence
of UGCs and platform-generated content, warranty disclaimers, indemnity, limitations of
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liability, and the dispute resolution clause. For example, in one case the Ninth Circuit
Court of Appeals refused to enforce an arbitration clause because ‘the arbitration clause
is listed in the midst of a long section without line breaks under the unhelpful heading of
“Miscellaneous”’. In a similar case, an arbitration clause was held enforceable because
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it was in bold font and contained the heading ‘BINDING ARBITRATION’. Many UGC
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platforms have already voluntarily implemented similar formats in practice by using italics,
bold or underlining, or capitalising the material clauses and other important sentences or
phrases. 106

6.3.2 Notice of modifications to ToUs/ToSs

A UGC platform should give notice not only of its ToU/ToS, but also of modifications to
the ToU/ToS, because a modified version is a new contract. Among the 30 UGC platforms
I studied, 27 had ToUs/ToSs (except HPfanfiction, Remix 64 and the Otaku), among which
24 had provisions regarding changes to the ToU/ToS (except wordpress.com, dianping.com
and Overclocked Remix). Twenty-eight per cent of the UGC platforms merely posted the
new ToU/ToS on the site without giving notice to platform users. The justification for this

101 Karen Berger and Jonathan Bick, Enforceable Browse Wrap Contracts—Sufficient Notice is not A Bright-Line Test, 197 New
Jersey Law Journal, September 18, 2009. <http://www.bicklaw.com/Publications/browseWrap.htm> accessed 19 May 2019.
102 Questions 8 and 22 in Appendix 1. The percentage of responders using smartphones to access UGC platforms: (380+57)/
(419+70)=89.37%.
103 Higgins v. Superior Court, 140 Cal. App. 4th 1238, 45 Cal. Rptr. 3d 293, 297 (Ct. App. 2006).
104 Net Global Mktg. v. Dialtone, Inc., No. 04-56685, 217 Fed. Appx. 598, 2007 U.S. App. LEXIS 674 at *7 (9th Cir. Jan. 9,
2007).
105 Boghos v. Certain Underwriters at Lloyd's of London, 36 Cal. 4th 495, 30 Cal. Rptr. 3d 787, 115 P.3d 68, 70 (Cal. 2005).
106 E.g., Services Terms of Use Agreement in MySpace <https://myspace.com/pages/terms> accessed 19 May 2019; Terms of
Use in Quora (23 October 2018) < https://www.quora.com/about/tos> accessed 19 May 2019; Terms of Service in Archive of
Our Own <https://archiveofourown.org/tos> accessed 19 May 2019; Terms of Service in Facebook <https://www.facebook.
com/terms.php> accessed 19 May 2019; Terms of Use in Wikipedia <https://foundation.wikimedia.org/wiki/Terms_of_Use/
en> accessed 19 May 2019.

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