Absolutely. Our principal concern is not with the provision per se. As an industry, we're very permissive with respect to UGC. It's that it's constructed so broadly that you could drive a Mack truck through it, and it would enable all sorts of misappropriation that clearly was not the intent.
I think you could narrow its application by adding a number of factors. The most notable would be one that Professor D'Agostino raised--i.e., that the essence of UGC is that the use is somehow transformative, that it's actually creating a new work. This doesn't just mean creating something new—it means creating something new and contributing. So adding a factor that requires a transformative element would be one way of doing it. Another way would be to limit the application not just on a non-commercial basis, but on the basis of standards that are currently in the act, provided that the limitations don't prejudice the rights owner. You could also do it by looking at the factors now applied in the fair dealing context—which are good, solid factors—and considering how to incorporate the those factors into the UGC, permitting the uses that encourage creativity while taking steps to avoid abuses.