Page 199 - 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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agreements is the number one consumer problem in the Internet age.
In some cases, the one-sided forum and law selection clause has enabled UGC platforms
to translate the money and time they have saved into better and cheaper services provided
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to users. Thus, the platforms have argued that these clauses have ‘posed no public policy
obstacles to the enforcement’. However, the unilateral choice of forum and law should be
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defeated if it prejudices the users’ interests. For example, when the law the court is obliged
to apply provides the user with significant protection that would be unavailable under the
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selected law, the law selection clause should be held unconscionable. In Dix v. ICT, the
Washington Court of Appeals refused to support the choice of law (Virginia) clause because
under the Virginia law, consumers were not allowed to launch class action suits, which they
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could do under Washington law where the case was heard.
The courts have also introduced the ‘effective vindication’ rule to prevent UGC platforms
from evading liability by selecting forums that are unreasonable and inefficient for users. The
crux of the effective vindication rule is to ensure the prospective litigant’s right to ‘effectively
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vindicate his or her statutory cause of action in the arbitral forum’. Since the introduction
of the effective vindication rule in the Mitsubishi case, the courts have focused on the
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practical ability of the parties to access the arbitral forum. For example, in the Shankle
case brought under the Age Discrimination in Employment Act, the court declined to enforce
an arbitration agreement between an employee and his employer requiring the employee
to pay half of the arbitrator’s fees. The court held that the arbitration agreement had failed
to provide an ‘accessible forum’ for the employee to assert his claims. In the Green Tree
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case, the Supreme Court also required the challenging party to prove the likelihood that he/
she would incur prohibitive costs and that this would inhibit the choice of an effective and
accessible forum.
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The Italian Colors case departed from the ‘practical ability’ approach, focusing instead

196 Ibid.
197 Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 589 (1991).
198 Cairo, Inc. v. Crossmedia Servs., Inc., No. C 04-04825. JW, (N.D. Ca., April 1, 2005). See also Koch v. Am. Online, Inc., 139 F.
Supp. 2d 690, 695−96 (D. Md. 2000).
199 ‘The split among jurisdictions illustrates that the enforceability of forum selection clauses is largely dependent on an
individual state's consumer protection laws and may be impacted significantly by the emphasis placed by an individual state
on class action rights’. Anderson (n 186) 7.
200 See Dix v. ICT Group, Inc., 125 Wash.App. 929, 106 P.3d 841, 851 (2005). But see Koch v. America Online, 138 F Supp2d
690 (D Md, 2000) (the Maryland court argued the lack of class action lawsuits in Virginia law does not render AOL's forum
selection clause invalid because the Maryland's law itself did not provide adequate protection to consumers.)
201 Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625, 637 (1985), cited by Green Tree Fin. Corp.-
Ala. v. Randolph, 531 U.S. 79, 90 (2000) etc.; Stephen J Ware, ‘The Case for Enforcing Adhesive Arbitration Agreements—
with Particular Consideration of Class Actions and Arbitration Fees’ (2006) 5 The Journal of American Arbitration 251, 270.
202 Byrd (n 188) 775.
203 Shankle v. B-G Maintenance Management of Colorado, Inc, 163 F.3d 1230, 1235 (10th Cir. 1999).
204 Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 92 (2000).

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