Page 200 - 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

on whether the arbitration clause eliminated a party’s right to pursue federal statutory
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claims, and whether it forbade the assertion of certain statutory rights. The ‘statutory right’
approach was rejected in the recent case of Nesbitt v. FCNH. The Nesbitt decision returned
to the ‘practical ability’ approach, with the court stating that an arbitration clause requiring
excessive fees from the user to enter a forum would violate the effective vindication rule
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and could not be upheld. Compared with the ‘actual right’ approach, the ‘practical ability’
approach provides a better balance between freedom of contract and protection of the
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consumers’ and employees’ statutory rights. To ensure the enforceability of the arbitration
clause, some UGC platforms have indicated that they ‘will be responsible for paying all
arbitration fees and arbitrator compensation in a consumer dispute in excess of what is
deemed reasonable’. 208
If a UGC platform has a strong preference for arbitration, the arbitration clause should
meet both procedural and substantive conscionability requirements. As discussed in
Section 6.3.1., the arbitration clause should be conspicuously displayed to bring it to the
user’s attention. The dispute resolution clause should ensure that the selected law does not
substantially undermine the platform users’ rights that are available under other applicable
law, and should ensure that the user has the practical ability to effectively vindicate
his statutory rights in the forum selected by the UGC platform. Despite the mandatory
arbitration clauses, users should reserve the right to file litigation in courts and allege the
unconscionability of the arbitration clause.

6.4.3 The UGC remuneration scheme

With the growth of UGC creation from a non-profit amateur activity to a lucrative
copyright business, UGC platforms have made plenty of profits from UGCs and have
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even garnered a ‘platform economy’. Although UGC platforms have made a significant
contribution to the commercialisation of UGCs, UGC creators have been the source of the
content. Currently, the majority of UGC creators are driven by non-monetary incentives
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such as personal pleasure, self-expression, altruism and reciprocity. However, a large
205 American Express v. Italian Colors Restaurant, 133 S. Ct. 2304, 2310 (2013) (The exception ‘would certainly cover a
provision . . . forbidding the assertion of certain statutory rights’ and ‘would perhaps cover filing and administrative fees
attached to arbitration that are so high as to make access to the forum impracticable’.)
206 Nesbitt v. FCNH, Inc., 811 F.3d 371, 377 (10 Cir., 2016).
th
207 Byrd (n 188) 774; Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625, 637 (1985).
208 Terms of Use in Eved, art 16 <https://www.eved.com/terms-of-use/> accessed 19 May 2019; Terms of Use in Get2college,
<https://get2college.org/terms-of-use> accessed 19 May 2019.
209 Martin Kenney and John Zysman, ‘The Rise of the Platform Economy’ (2016) 32 Issues in Science Technology 61, 61;
Giancarlo F Frosio, ‘Reforming Intermediary Liability in the Platform Economy: A European Digital Single Market Strategy’
112 Northwestern University Law Review Online 18, 18.
210 Steven Hetcher, ‘Desire without Hierarchy: The Behavioral Economics of Copyright Incentives’ (2010) 48 University of
Louisville Law Review 817, 821; Tom W. Bell, ‘The Specter of Copyism v. Blockheaded Authors: How User-Generated
Content Affects Copyright Policy’ (2008) 10 Vanderbilt Journal of Entertainment and Technology Law 841, 852.

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