Page 184 - 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

was that the users were responsible for regularly reviewing the ToU/ToS and their continued
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access and use of the site was an implied acceptance of the changes. Although the rest of
the platforms claimed that they notified their users of the changes, the forms of notification
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were diverse. Some regarded posting the revised TOU/ToS on the platform as notice.
Some chose to send emails to users or put a notice on the webpage. Some announced that
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only material or major changes to ToU/ToS would be subject to notice, but did not provide
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any explanation of what ‘material change’ or ‘major change’ meant.
Although most UGC platforms reserve the right to change the ToU/ToS at their sole
discretion, there are a few that allow users to express their opinions. For example, Facebook
says ‘we will notify you before we make changes to these Terms and give you an opportunity
to review them before they go into effect’. SoundCloud also states that the revised ToU/
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ToS will become effective two weeks after the notification of such changes, which provides
an opportunity for users to review the changes and express their opinions. Archive of
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113
Our Own provides a two-week comment period. Wikipedia provides the community with
a 30-day period to comment on the proposed changes, and 60 days ‘if a future proposed
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revision is substantial’. The courts have subjected unilateral modifications to the principle
of good faith to protect users’ interests. For example, in Poublon v. CH Robinson Co., the
Ninth Circuit Court of Appeals held that even if the UGC platform had included a unilateral
modification clause, ‘the implied covenant of good faith and fair dealing prevents a party
from exercising its rights under a unilateral modification clause in a way that would make it
unconscionable’. 115
For the sake of efficiency, with adhesion contracts, I argue that UGC platforms are
encouraged but are not obliged to invite users’ participation in or commentary on the
modification of the ToU/ToS. However, UGC platforms should at least give users notice of
material changes to the ToU/ToS. Any change that might affect a UGC platform’s use of
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UGCs and platform users’ use of the UGC platform’s services is material. This includes,
without limitation, ownership of UGCs, the licence for UGCs and platform-generated
content, warranty disclaimers, indemnity, limitations of liability and dispute resolution

107 See ToU/ToS in Asianfanfics, Fanfiction, Youtube, Wechat, Craigslist, Dianping, Dailymotion, IMDb.
108 See ToU/ToS in Zhihu and Tik Tok.
109 See ToU/ToS in DeviantArt, Flickr and Tumblr.
110 See ToU/ToS in ccMixter, SoundCloud, DeviantArt, Twitter and Pinterest.
111 Terms of Service in Facebook (n 106), art 4.1.
112 Terms of Use in SoundCloud, ‘Changes to Terms of Use’ <https://soundcloud.com/terms-of-use> accessed 19 May 2019.
113 Terms of Service in Archive of Our Own (n 106), art I.B.2.
114 Terms of Use in Wikipedia (n 106), 16 ‘Modifications to these Terms of Use’.
115 Poublon v. CH Robinson Co., No. 15-55143 (9th Cir. 2017) (citing Tompkins v. 23andMe, Inc., 840 F.3d 1016, 1033 (9th Cir,
2016)).
116 See supra note 103 and accompanying text.

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