Page 208 - 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 7 Platform Users’ Entitlement to UGCs: Human Use and Web Scraping
An Intermediary-oriented Approach

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error. Although web scraping emerged with the birth of the Internet, it has confronted
new questions in the UGC age. Considering the marginal value of individual UGCs, more
revenue can be gained from exploiting a large database of UGCs than one UCG or a few. As
web scraping has inherent advantages for extracting a large amount of information, it is more
likely to interfere with UGC platforms’ normal exploitation of UGCs than human use would.
Section 7.3 shows how different legal regimes deal with disputes over web scraping in the
context of UGC, and Section 7.4 advances a scheme to regulate the web scraping of UGC
databases.
7.2 Human Use of UGCs

As discussed in Chapter 6, most UGC platforms require ToUs/ToSs to take effect upon a
user’s access to the platforms. Therefore, we should first investigate the scope of a user’s use
under ToUs/ToSs.

7.2.1 Terms of Use/Terms of Service

Despite the lack of a direct contractual relationship between a UGC platform user and
a UGC creator on the same UGC platform, a platform user still has the right to use UGCs
through the ToU/ToS. For instance, Dailymotion claimed that upon the acceptance of the
ToU, every UGC creator agreed to the following:

…to allow any Visitors of the Dailymotion Service, to view and to
share Your Content through the Dailymotion video player on or
through any declination of the Dailymotion Service, as accessible
(online or offline) via any current or future device capable of
distributing the Dailymotion Service by any means of access,
including but not restricted to computers, smartphones, tablets, TV
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devices, IPTV platforms and/or game consoles free-of-charge.

In this view, a ToU/ToS constitutes a third-party beneficiary contract, which not only
describes the relationship between the UGC creator and the UGC platform but also creates a
contractual relationship between the UGC creator and other users in the platform.

6 Kathleen C. Riley, ‘Data Scraping as a Cause of Action: Limiting Use of the CFAA and Trespass in Online Copying Cases’
(2019) 29 Fordham Intellectual Property Media & Entertainment Law Journal 245.
7 Octoparse, ‘Web Scraping: How It All Started And Will Be’ (22 October 2018) <https://www.octoparse.com/blog/web-
scraping-introduction> accessed 20 May 2019. The earliest spider program was RBSE developed by David Eichmann from
the University of Houston in 1994. The Google Crawler by Brin and Page from Stanford University by Python in 1998.
Janet Williams, ‘Evolution of Web Crawling: How Crawling the Web Emerged as A Mainstream Discipline’ (PromptCloud,
6 January 2015) <https://www.promptcloud.com/blog/evolution-of-web-crawling-how-crawling-emerged-as-mainstream-
discipline/> accessed 19 May 2019;
8 Terms of Service in Dailymotion, art 3.2 <https://www.dailymotion.com/legal/terms?localization=us> accessed 19 May 2019.

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