Page 197 - 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

clause, can only resort to third-party authorities for justice. In contrast, UGC platforms have
adequate self-help remedies against users’ violations of ToUs/ToSs, including terminating
183
the infringing users’ account or removing the infringing UGCs from the platform. To date,
there have not been many published cases addressing the disputes between UGC platforms
184
and platform users. This might be attributable to the high costs involved with resolving
disputes pursuant to the dispute resolution clause.
General disputes over the enforceability and validity of the dispute resolution clause
have rested on its character as a ‘take it or leave it’ (i.e. adhesion) contract that leaves users
185
with no room to negotiate. Nevertheless, the courts have increasingly recognised that
adhesion contracts are not per se unconscionable, and the federal courts have increasingly
186
enforced dispute resolution clauses. For example, in Hubbert v. Dell Corp., the Fifth
Circuit Court of Appeals reversed the district court’s order, pointing out that the district court
187
had wrongfully rejected the arbitration clause by solely relying on its standard form.
Dispute resolution provisions include two types of clauses: those regarding the choice
between arbitration and litigation, and those associated with the choice of forum (in the
case of mandatory arbitration) and applicable law. Arbitration has less stringent procedural
requirements and is usually faster than litigation. However, arbitration benefits UGC
188
platforms much more than it benefits UGC creators. The fees for arbitration and the

183 In Starke v. Squaretrade, the Second Circuit Court emphasized the notice about the dispute resolution clause. Starke v.
nd
Squaretrade, Inc., Docket No. 17-2474-cv, at *9 (2 Cir., 2019) In Poublon v CH Robinson, the Ninth Circuit Court
suggested that “the implied covenant of good faith and fair dealing” prevail the unilateral modification clause. Poublon v. CH
Robinson Co., No. 15-55143 (9th Cir. 2017) (citing Tompkins v. 23andMe, Inc., 840 F.3d 1016, 1033 (9th Cir, 2016)).
184 See supra note 11.
185 Comb v. PayPal, Inc., 218 F. Supp. 2d 1165, 1172 (N.D. Cal. 2002); Flores v. Transamerica HomeFirst, Inc., 93 Cal. App.
4th 846, 113 Cal. Rptr. 2d 376, 381-82 (Ct. App. 2001); America Online, Inc. v. Superior Court, 108 Cal. Rptr. 2d 699,
701−02 (Cal. App. 2001); Specht v. Netscape, 306 F.3d 17 (2d Cir. 2002); Scarcella v. America Online, Inc., 811 N.Y.S.2d
858, 858−59 (N.Y. App. Div. 2005) (per curiam); Aral v. Earthlink, Inc., 36 Cal. Rptr. 3d 229, 231 (Cal. App. 2d 2005);
Dix v. ICT Group, Inc., 106 P.3d 841, 843−45 (Wash. Ct. App. 2005), review granted, 126 P.3d 820 (Wash. 2005); Waters
v. Earthlink, Inc., 91 F.App’x 697, 698 (1st Cir. 2003) (refusing to enforce an arbitration clause posted on a Web site in the
absence of proof the consumer had seen the clause); DeFontes v. Dell Computers Corp., No. C.A. PC 03-2636, 2004 WL
253560, at *6 (R.I. Super. Ct. Jan. 29, 2004) (applying Texas law) (refusing to enforce a browse-wrap agreement containing
an arbitration clause because it was ‘inconspicuously located at the bottom of the website’); Bragg v. Linden Research, Inc.,
487 F. Supp. 2d 593, 601 (E.D.Pa. 2007); In re Zappos.com, Inc., Customer Data Security Breach Litigation, 893 F. Supp. 2d
1058 (D. Nev. 2012) (the court held the arbitration clause in the browsewrap contract as illusory and unenforceable because a
reasonable user of the site would not have been able to see its terms).
186 Caspi v Microsofl Network, L.L.C, 732 A.2d 528, 533 (N.J.Super. Ct. App. Div. 1999); Lieschke v. Realnetworks, Inc.,
2000 WL 198424, at *8 (ND Ill.); Craig v. Brown & Root, Inc., 84 Cal.App.4th 416. 416-420 (2000); AT&T Mobility v.
Conception, 131 S. Ct. 1740, 1748 (2011); CompuCredit Cor v. Greenwood, 131 S. Ct. 2874 (2011); Forrest v Verizon
Communications, Inc., 805 A.2d 1007, 1013 (D.C. 2002); Cairo, Inc. v. Crossmedia Servs., Inc., No. C 04-04825. JW, (N.D.
Ca., April 1, 2005); Michael L. Rustad and others, ‘An Empirical Study of Predispute Mandatory Arbitration Clauses in
Social Media Terms of Service Agreements’ (2012) 34 University of Arkansas at Little Rock Law Review 643, 643; Rachel
Cormier Anderson, ‘Enforcement of Contractual Terms in Clickwrap Agreements: Courts Refusing to Enforce Forum
Selection and Binding Arbitration Clauses’ (2006) 3 Shidler J L Com & Tech 1, 5.
187 Hubbert v. Dell Corp. 359 Ill. App. 3d 976, 835 N.E.2d 113 (Ill App 5 Dist., August 12, 2005).
188 Colby J. Byrd, ‘Vindicating the Effective Vindication Exception: Protecting Federal Statutory Rights in the Employment
Context’ (2018) 70 Oklahoma Law Review 761, 761.

• 183 •