Before Viacom’s lawsuit against YouTube, providers of similar services enjoyed a more substantial degree of protection in the US under the ‘safe harbour’ provisions of the Digital Millennium Copyright Act. “The theory is that if you comply with certain requirements then you can’t be held liable as a service provider for your users’ actions,” explains Lingard. “So you ensure that you have appropriate terms and conditions with your users, and if you are notified of a copyright infringement, then you have to take steps to take down the material. It’s arguably impossible for service providers to check every piece of content that users upload for copyrighted material in advance, but that doesn’t mean that they should be completely absolved of responsibility or allowed implicitly to encourage infringement.”

While these protections still exist, Lingard suggests that the battle between Viacom and YouTube may determine the extent of what is considered reasonable compliance. Should Viacom successfully argue that YouTube’s approach to removing copyrighted content is inadequate, it may compel other service providers like Sony to be more proactive in this process, requiring them to more diligently police their own users’ content rather than waiting for copyright holders to contact them about infringement. As Van Tilburgh says: “It’s probably already too late if you start receiving formal complaints.”

“Turning a blind eye wouldn’t be sufficient,” says Lingard. “Each case would turn on the facts, but if Viacom is successful then this argument would almost certainly be adopted by other rights holders. The problem, then, for companies like Sony, would be that if their current safeguards are not sufficient to police uploaded content, they could be forced to take services offline until those safeguards are improved.”

Those who resent the intrusion of copyright law into LittleBigPlanet shouldn’t necessarily be eager for YouTube to win out over Viacom, however. If some of the responsibility to police infringing content is lifted from the service provider it could simply mean that copyright holders would be more likely to pursue legal action against individual users.

“It won’t change the nature of copyright law,” Lingard says of YouTube’s potential victory. “It might be perceived as a green light for the use of infringing material, but that’s not the case – it would just confirm that what YouTube is doing is sufficient for it to avoid liability itself. There was a stage when it was quite common for rights holders to sue lots of individual infringers for a couple of thousand dollars each to make an example of them and act as a deterrent to the wider public – they could always go back to doing that, because the act of uploading the content is itself an infringement. The trouble is the scale of it, the practical cost of it, and the fact that nobody really wants to sue their own customers.”

Nor does Sony want anyone else suing its customers. The more rigorous its efforts are to police content, the better protected both the company and individuals are from litigation. However, the dialogue it has with LBP’s users over content must be improved if it is to ensure that its actions aren’t misconstrued as despotism.

“We’re reviewing the moderating system currently to provide better feedback on why levels are moderated,” says Sam Bennett, senior community development manager at SCEE. “We’re moving towards a system where additional information is given, however for the time being if you don’t want your level moderated, avoid anything unsuitable for users of all ages and copyrighted content.”

Although copyright-infringing material will continue to be an inevitable part of user-created content, by not tackling the issue early on Sony has undoubtedly made its own task much harder and, perhaps worse, risked users’ goodwill.

“Moderation of user-created-content is one of the hardest parts of this industry and not one that’s been given proper thought by most parties involved,” emphasises Van Tilburgh. “Being transparent and communicating to the people whose content you’re moderating is of huge importance, just like explaining well in advance what the rules are.”