New Article about UGCs- Organizing thoughts by looking at Interests and Capabilities of Content Providers and End Users

My boss at MasurLaw and I are going to co-author an article about User Generated Content websites, in which we are going to outline the various solutions for the current gridlock and highlight their strengths and weaknesses. I have started to work out certain ideas, and am going to post my progress step-by-step hopefully.

The preliminary action, for the benefit of the uninitiated, is to sketch out the involved parties. First, there are what I shall call the producers (sometimes known as content providers), which include such companies as Viacom, Universal, and NewsCorp. Then there are the consumers, who listen and watch whatever content they choose. Included in the general class of consumers are those who are willing to flaunt whatever laws exist, either because they don't care or don't think they can be caught. For a long time, these two parties dealt directly with each other, but since the dawn of the Internet a new group, the distributors (i.e. iTunes and YouTube) has entered the fray to intermediate between the producers and the consumers. However, distributors are not relevant to the immediate discussion.

In my mind, the best way to evaluate possible solutions to the gridlock is to first understand what the interests of the producers and consumers are. So here are the interests of the parties, as I see them:

Producers' Interests-
1. to maximize profits (through direct sale or advertisement, depending upon the format). In reality, all the following interests of subsets of this prime capitalistic motivation.
2. to time the release of their content (so they can charge separately for each level)
3. to obtain either a license or fee for each conversion from one format to another.
4. And one very large interest that can really be considered a counter-interest-- marketing and promotion. All media companies want to get their shows or music into the public consciousness, and so at first some infringements might be permissible. However, once the word has spread about good content, they then want to make money off of it. ("Lazy Sunday" on YouTube is a great example of this)
Consumers-
Interests-
1. to get things cheap (free, if possible)
2. to get things fast
3. to get things easily
4. to get things in the highest quality possible
5. to get things they can take anywhere- from their computer, to their iPod and to their TV.

So when you examine this framework what becomes very apparent is that the two parties are at odds over virtually every interest. The producers and consumers (the ones who don't care about participating in illegal activity) are at war. Think about the dance of the past 10 years. Consumers flock to Napster, and then producers drag it into court and neuter it. iTunes turns into a force, and AllofMP3 outsells it. This is a duel where each thrust is met with a parry. The sides take turns winning battles, but it remains to be seen if anyone can actually win the war. The next step is to examine what capabilities permit each side to win each battle.
Here are their capabilities:

Producer Capabilities-
1. Set prices (different ones for each format)
2. Digital Rights Management tools (digital locks)
3. Controlling the quality of the content (e.g.- what is formatted for an iPod can't be blown up to look good on a 50-inch plasma.)
4. use the existing law (DMCA 512 (c) relating to liability of ISPs, DMCA 1201 relating to digital locks, Grokster, Real Networks v Streambox, A&M v Napster...)
5. lobby for new law

Consumer Capabilities-
1. digital lockpicks
2. tools permitting conversion from format to format
3. relevant legal defenses (Sony v Universal, fair use...)
4. using the territoriality issues engendered by the construct of the Internet to circumvent the native law (American users could not be prevented from using AllofMp3, which was a Russian site that was legal under Russian copyright law)
5. a higher level of interaction with content (democratized tools of production have resulted in the idea of "mash-ups")

Now that these have been set out, I think it will be easier to evaluate the strengths and weaknesses of each possible solution.