Thwack!! Take That, User-Generated Content!: Marvel Enterprises v. NCSoft

I. INTRODUCTION II. THE GROWTH OF USER-GENERATED CONTENT A. The Birth of User-Generated Content B. User-Generated Content Develops C. Two Types of UGC Emerge III. COPYRIGHT INFRINGEMENT DEGRADES USER-GENERATED CONTENT SITES IV. THE LEGAL STATE OF SECONDARY INFRINGEMENT A. Secondary Infringement--Defining Contributory Infringement and Vicarious Liability B. Applying Secondary Infringement to Network Administrators V. SUPERHEROES ARE ENTITLED TO COPY PROTECTION TOO VI. A CASE FOR SECONDARY INFRINGEMENT THROUGH USER-GENERATED CONTENT: MARVEL V. NCSoft A. Background of the Case B. Applying Secondary Infringement to NCSoft 1. Existence of Direct Infringement by a Primary Infringer 2. Finding Secondary Infringement VII. FINDING HARMONY BETWEEN COPYRIGHT AND USER-GENERATED CONTENT A. The Future of Piracy Through User-Generated Content: YouTube as a Model 1. YouTube's Course for a Marvel Iceberg 2. Common Problems Facing YouTube and, in Turn, User-Generated Content 3. Inability of Current Solutions to Fix User-Generated Content B. Revenue-Based Reapportionment C. Benefits of Revenue-Based Reapportionment VIII. CONCLUSION I. INTRODUCTION Copyright protection, a constitutionally established right, (1) is now endangered due in part to changes in technology. Established before the United States itself, (2) American copyright protection has continued even as the media it protects have grown and changed. Copyright law has survived both the American Revolution and the Industrial Revolution. However, facing the Internet Revolution, copyright law, as it existed for hundreds of years, may become extinct unless it evolves with new technology. The online world, with the ability to create instant, anonymous copies of words, pictures, sounds, and videos, has become a breeding ground for unfettered copyright violations. (3) The advent of user-generated content (UGC) (4) further creates a significant venue for copyright infringement: a situation in which the rights of UGC-hosting Web sites (UGC sites) are often antithetical to the rights of copyright holders. Eventually this situation will be resolved. It almost happened not too long ago through the copyright infringement suit Marvel v. NCSoft Corp. (5) Had that suit not resulted in settlement, a court decision would have determined the liability of a UGC provider for copyright infringement. The court most likely would have upheld copyright holders' rights, making the UGC provider liable for secondary infringement and forcing all UGC sites to change or shut down. Despite conflicts between UGC sites and copyright holders, a solution exists. Striking a balance between these two competing interests represents a significant challenge comparable to that posed by the Gordian knot: (6) either spend years trying to untangle it or simply cut it with a sword. What follows is an attempt at such an Alexandrian feat. This Article looks at and attempts to temper--through judicial, legislative, and ultimately federal methods--the effects of UGC on copyright holders and society. Part II of this Article addresses the history, growth, and exponential expansion of UGC. Next, Part III looks at the issues that arise between copyright holders and UGC sites. Part W investigates the legal status of copyright law as it pertains to the Internet and explores how courts currently struggle to adapt copyright law to fit the online world. Since the case at issue, Marvel, involves the infringement of superhero copyrights, Part V looks at the degree of copyrightability afforded to superheroes. Analyzing the Marvel case, Part VI discusses the history of this UGC-related case and applies tests established by the federal courts to postulate a hypothetical outcome. Part VII analyzes the effects of a hypothetical decision in Marvel and proposes an alternative for the UGC copyright dilemma by using federal intervention to obviate any injustices. …