• by Karl Greenberg , October 7, 2009

When marketing to kids, the wired world isn't so much a digital playground as a briar patch. At the Children's Advertising Review Unit's "Advertising to Kids 2.0" conference on Wednesday, attorneys for Disney, as well as corporate law firms and the director of a children's advocacy group for Web safety, picked their way among the thorns.

One topic was user-generated content (UGC), an area that's hot not just for marketers, but for publishers hoping to avoid litigation. "The issues that a service provider can face are staggering," said Brian Murphy, partner with Frankfurt, Kernit, Klein & Selz. "We used to live in an old-media world: Everyone in the chain of distribution of content would be liable."

He says that had those kinds of old-world laws been applied to the Internet, it would have all but killed the medium. "There would have been crippling liability." The Digital Millennium Copyright Act (DMCA) and Communications Decency Act (CDA) created safe harbors that allowed Web publishers -- including marketers hosting UGC -- to launch programs without wondering how and when they would be held liable for content that consumers uploaded.

Murphy pointed out that the DMCA, which gives service providers immunity for infringement of content, is aimed at protecting essentially passive publishers, those who don't "touch" content that users upload. He says the CDA, born a decade ago when contradictory rulings on whether Prodigy could be held responsible for defamatory comments on its bulletin board, "gives more room for service providers to be active participants in the content users generate."

The CDA is more relevant to marketers whose UGC programs involve editing, judging, vetting and manipulating. He says the CDA addresses the "touch it, it's yours" legality of UGC. "If you manipulate UGC either through vetting, editing, culling, making screening decisions that may make you no longer passive, you are responsible for it. The CDA gives you privilege around efforts to create a safe environment. "If you are trying to edit out infringing content the CDA ensures that you don't diminish your ability to wrap yourself in the protective cloak of a safe harbor."

And there are exceptions, said Murphy. If a service provider knew there was infringement and can be proven to have known as much, they are liable. Inducement is another exception: If you induce someone to commit copyright infringement, you are liable. "Say you are running a contest involving kids doing their favorite scene from a Disney movie. If you are not related to Disney, it could be inducing copyright infringement. If you have the ability to stop something and you don't and you are making money from it, you shouldn't get a pass."