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Content, Writing and Copyright Forum

    
Copyrights on Contributed Content
Forum post copyright - can the website own the content on the forum?
illusionist




msg:929817
 8:49 pm on Jan 2, 2005 (gmt 0)

Can i mention in the term and condition that any content posted on the forum, will belong to the website?

 

BaseVinyl




msg:929818
 9:02 pm on Jan 2, 2005 (gmt 0)

Sure! It's your forum...but people may not want to post. I would not be inclined to share ideas if you then will claim ownership of them.

BigDave




msg:929819
 4:21 am on Jan 3, 2005 (gmt 0)

You can mention it, but that does not necessarily make it so. At least not in the USA.

If it is not a work-for-hire, the law requires a written conveyance to transfer copyright. A click through license will not cut it.

Webwork




msg:929820
 10:17 pm on Jan 3, 2005 (gmt 0)

BigDave, what about the rights of the forum operator vis-a-vis some screen scraping scum that attempts to use your forum's content to populate is scurvy AdSense pseudo-directory?

Would the website operator be positioned to assert a violation of copyright versus the scraper?

What about T.O.S. violation, that is, a contract claim: "Users are permitted to view but not to republish the contents of this website without the express written approaval of WebsiteCo and the individual posters."?

So, maybe not copyright but restricted rights of republication by terms of service?

illusionist




msg:929821
 10:36 am on Jan 4, 2005 (gmt 0)

Can anyone tell me excat wording that i need to add to the terms and condition to make it so or can direct me to the webssite where i can find this fino. thank you!

Brett_Tabke




msg:929822
 12:43 pm on Jan 4, 2005 (gmt 0)

> Can i mention in the term and condition that any
> content posted on the forum, will belong to the website?

Yes, because in the United States, that is the law unless your TOS states otherwise. (atleast a license to use)

You do *not* want to do that because if you do, then everything written on your forum is your responsibility and legal liability. So disclaim the ownership of content.

The value of the content itself? Minimal.
The value of the content to the membership? Priceless!

too much information




msg:929823
 1:02 pm on Jan 4, 2005 (gmt 0)

I totally agree with Brett.

If someone came along and started trashing some business owner on your website, talking about everything but his dog you would definately not want to claim ownership of the comments when his lawyer came calling.

There have been many cases where a forum was sued because of the comments of their members, so far none of them have been held responsible. I understand that you don't want other forums taking your content, but it is really not worth the risk of claiming ownership of the content.

If you are still set on it, definately go see a lawyer about the wording you should use. They can help you work out the liability problems, or recommend other options.

ukgimp




msg:929824
 4:32 pm on Jan 4, 2005 (gmt 0)

>>The value of the content itself? Minimal.

What about if I got 1000's of people to write reviews of things for me. That has value :)

asp4bunnies




msg:929825
 5:15 pm on Jan 4, 2005 (gmt 0)

ukgimp, if you're going to be moderating and editing the content of the reviews, then it'd be easier to claim ownership without the legal wrangling.

If anyone can post whatever, without your knowing about it, I'd be more inclined to disclaim ownership over everything submitted.

illusionist




msg:929826
 5:21 pm on Jan 4, 2005 (gmt 0)

Yes i understand the conseqeunces but what excatly do i have to state in tos?

walkman




msg:929827
 5:55 pm on Jan 4, 2005 (gmt 0)

"What about if I got 1000's of people to write reviews of things for me. That has value"
what if someone says something that causes you to get sued? The beauty of forums is: "hey, I just maintain them, I'm not responsible for what people say". That's truly priceless.

HughMungus




msg:929828
 6:51 pm on Jan 4, 2005 (gmt 0)

If you just want a TOS, why not just say, "All submitted articles are the property of widgets.com."

It's really meaningless in the face of the law, though.

Besides liability, another issue you might run into here is your contributors coming back to seek compensation (a la the AOL "volunteers" who sued AOL for compensation after the fact).

rbacal




msg:929829
 6:59 pm on Jan 4, 2005 (gmt 0)

I'm a book author and a publisher, and I think there's a bit of inaccurate information in this thread. First, "ownership" in the sense of being liable for the content of something is NOT in any way connected with copyright, which is the right to control distribution of materials which you hold the copyright to.

Second, generally speaking, what someone posts to an email discussion group or board is copyright protected and the rights belong to the poster, UNLESS OTHERWISE STIPULATED. This is done all the time with letters to the editor.

Third the copyrights to the entire body of postings (all the posts taken together) belong to the "publisher", in this case the website owner.

Fourth, liability for the contents depends on how the courts might interpret the role of the distributor/publisher. In general, due to legislative changes a few years ago, companies that provide facilities for others to post to are NOT considered liable (if they were, places like yahoogroups would be absolutely swimming in lawsuits). HOWEVER, these provisions are continuing to be banged about in the courts. There is one lawsuit that IS attempting to hold yahoogroups liable for slander allegedly posted by a user. It's not a very serious suit, and probably will get settled or dropped (the complainant is a lawyer).

Fifth, there has been some discussion/issues about the difference between a board/list that is moderated, and one that is not, in terms of potential liability. That discussion (which has been around for years), suggests that if you moderate/approve postings, that you become an active "player" if you like, and you may then be liable for content that is illegal, IF you approved it and passed it on. Again, it's a court interpretation issue, and I'm not current on this.

The bottom line is that a lot of this is still in flux, and subject to legal precendent (which changes a lot re: internet), court interpretation, and potential new laws.

There IS new legislation being considered in COngress in the U.S. which will make aiding and abetting copyright infringements a crime, which will completely change the landscape once again. It's actually aimed at the p2p file swapper industry (mp3, movies, etc), but as it is written (last I looked) it will catch all of us in the same net, at least potentially. I don't know the current status of the proposed legislation in Congress, whether it's pending, tabled, killed or what.

So, probably no downside in a disclaimer that anything posted to the list/board becomes the property of the owner. Or, another way is to have a modified disclaimer that indicates that posting to the board provides NON-EXCLUSIVE rights to the content (i.e. the poster can re-use it, the owner can re-use it). I'd go with a non-exclusive rights disclaimer.

monkeythumpa




msg:929830
 7:21 pm on Jan 4, 2005 (gmt 0)

Why do you want ownership? It seems like all you need is the right to republish and distribute. Then you can just pass the buck if you get sued.

billegal




msg:929831
 7:44 pm on Jan 4, 2005 (gmt 0)

I think an assignment of copyright must be in writing (by statute). You can however get a copyright license by implication. I wonder if you can get an exclusive copyright license by click-wrap.

Any copyright attorneys know the answer to this?

shoreline




msg:929832
 8:39 pm on Jan 4, 2005 (gmt 0)

Excellent post rbacal - Thank you very much!

shri




msg:929833
 12:25 am on Jan 5, 2005 (gmt 0)

I freelance, writing articles and taking photos.
Retain copyright, except in a few instances in which I sign this away (as BigDave mentioned, this done in writing).

Wondered re BigDave mentioning about "work-for-hire", but quick Google search and found some info on copyright, with a passage to effect that if you create something in full time employment, copyright belongs to employer; not so - often - if you're an independent contractor.

Re latter, says:
"Once the author is found to be an independent contractor, the work may still be deemed a work-made-for-hire only if it is specially ordered or commissioned and the parties expressly agree in a written instrument signed by both of them that the work shall be considered a work-made-for-hire. This rule appies only to certain types of works."
[I guess googling for part of this text will find this page; seems useful - covers US copyright. Other issues, including contributing to a larger project.]

I'm never too happy signing away copyright, do so chiefly as money/work maybe better. Sometimes, get joint copyright - so a magazine, say, can reuse article, and I can too; fine with me (cf rbacal's suggestion).

As copyright already exists in posts, surely screen scraping scum are breaking law anyway - whether copyright belongs to website, or individual contributors - and deserve a severe blow to the head with a very large widget.

Brett_Tabke




msg:929834
 12:48 am on Jan 5, 2005 (gmt 0)

rbacal brings up a critical point that you must consider:

Fifth, there has been some discussion/issues about the difference between a board/list that is moderated, and one that is not, in terms of potential liability. That discussion (which has been around for years), suggests that if you moderate/approve postings, that you become an active "player" if you like, and you may then be liable for content that is illegal, IF you approved it and passed it on. Again, it's a court interpretation issue, and I'm not current on this.

That must be considered given some other comments in the thread:

> people to write reviews of things for me.

From what I understand after a 6 figure investment in this issue, is that review sites have major lawsuit written all over them. Most of the major review sites in the US have been sued, threatened to be sued, and harassed verbally.

If you claim ownership of that content, then it is the same as if the words came out of your mouth. If you edit that content, you have admitted that there is an occasional problem with the content. That is an admission of culpability.

> Yes i understand the consequences
> but what exactly do i have to state in tos?

Like Hugh said, you do not have to say any thing at all and it has nothing to do with legal standings. What you do say is merely a formality for your members.

"In accordance with all laws in the United States (etal), by using this site you agree to grant example.com full license to use any comments you may contribute."

Note, that you can not claim copyright on that content.

> "I'm not responsible for what people say".
> That's truly priceless.

Exactly.

The value is in what it can do for you members and repeat users. It is not in what it may or may not do for search engines.

There IS new legislation being considered in Congress in the U.S. which will make aiding and abetting copyright infringements a crime, which will completely change the landscape once again.

It seems that the legislation is intended for video and audio (eg: music and movies). As we can all see by the se usage of the term "cache", that copyrights pertaining to the written word, are not worth the paper they are written on. Once again, it will boil down to "he with the most money wins".

> I think an assignment of copyright
> must be in writing (by statute)

No, you can not post something to a website and claim copyright dominion over it.

BigDave




msg:929835
 1:29 am on Jan 5, 2005 (gmt 0)

Great post rbacal! I agree with just about everything you said.

There IS new legislation being considered in COngress in the U.S. which will make aiding and abetting copyright infringements a crime, which will completely change the landscape once again. It's actually aimed at the p2p file swapper industry (mp3, movies, etc), but as it is written (last I looked) it will catch all of us in the same net, at least potentially. I don't know the current status of the proposed legislation in Congress, whether it's pending, tabled, killed or what.

I think it did not make it out of comittee last session, but it is going to be pushed out this session. Last I heard there were two bad bills coming out on this subject. I expect the courts will not look favorably on many clauses in both of them.

So, probably no downside in a disclaimer that anything posted to the list/board becomes the property of the owner. Or, another way is to have a modified disclaimer that indicates that posting to the board provides NON-EXCLUSIVE rights to the content (i.e. the poster can re-use it, the owner can re-use it). I'd go with a non-exclusive rights disclaimer.

Try looking at the yahoo TOS. You grant them non-exclusive rights, as well as rights to sublicense to others, which they actually do in a license to their members for non-commercial use.

I think an assignment of copyright must be in writing (by statute). You can however get a copyright license by implication. I wonder if you can get an exclusive copyright license by click-wrap.

No click through or other wacky stuff will allow for copyright transfer. In fact, I would be surprised if that would work for any form of property (and a copyright is property).

The only other way to get copyright for someone else's work is by having a work for hire arrangement.

BigDave




msg:929836
 1:39 am on Jan 5, 2005 (gmt 0)

From what I understand after a 6 figure investment in this issue, is that review sites have major lawsuit written all over them. Most of the major review sites in the US have been sued, threatened to be sued, and harassed verbally.

I can attest to that. We easily get 5 threats a year. It helps to have a site owner that is lawsuit-proof (100% disabled vet) and an industry where companies with really bad press, such as suing review sites, can ruin all your business.

No, you can not post something to a website and claim copyright dominion over it.

Where the heck do you get this? It sounds like a verion of the old "it's on the web, so it is public domain"

Everything I have read, including 17 USC suggests otherwise.

Brett_Tabke




msg:929837
 4:31 am on Jan 5, 2005 (gmt 0)

> Where the heck do you get this? It sounds like a
> verion of the old "it's on the web, so it is
> public domain"

Close, but when you post to a specific website, you can not claim it as your copyright. (see your previous message on Yahoo's TOS on NON EXCLUSIVE rights). You can not post something to Yahoo and expect to dictate how Yahoo uses it. (eg: you don't have dominion over it).

BigDave




msg:929838
 6:24 am on Jan 5, 2005 (gmt 0)

Your post is absolutely copyrighted by you, but by posting it there is an implicit license granted to the site to continue ditribuint it in the way that the poster could expect at the time that they posted it. This is basically covered by the legal term "estoppel" and also by the "clean hands doctrine". You are not able to hold me responsible for something that you yourself did.

But you, unless it is specified as an additional factor in the TOS, have no right to do anything else with it that is controlled by the copyright. As the owner of webmanster world, you cannot publish a book of great posts on WW without getting additional rights licensed to you by the rights holder.

You also cannot retroactively apply new TOS to old posts.

What Yahoo has done is to specify the license you are granting them in addition to the implied license when you post on their site.

rbacal




msg:929839
 5:19 pm on Jan 5, 2005 (gmt 0)

BigDave has it nailed. To explain (and why Tabke is partly right and partly incomplete)...

Two levels here. Copyright law, which applies automatically to "published work", and Terms of Service and Licensing Agreements.

When you post (let's say here) you implicitly allow webmasterworld to have that specific content "published", and that's automatic, under copyright law. You are not surrendering ANY copyrights by doing this.

HOWEVER, there is also contract law (which relates to TOS/licensing) which can over-ride the automatic copyright provisions. In other words you can "sign away" your rights to material you contribute, in a number of ways, from licensing for a specific use (see above) to completely giving away any copyrights you may have, to the extent that you cannot use the material yourself ever again (a stupid thing to do).

TOS is applied in different ways, and through different mediums. It may be tacit (i.e., posting indicates you agree with the TOS/licensing agreement posted by that specific site. It may be much more formal, as is the case when you publish a physical book with a major publisher, and requires an actual physical contract to be signed.

Let me give an example. When someone posts to my BB system, on let's say a particular management technique, they hold the copyright to the material, BUT they tacitly (by posting) allow me to have it on my BB system. However, let's say I want to use a particular post in a book I'm writing for a major publisher. I CANNOT do that unless i get specific additional permission to do so after the fact, OR, I include in my TOS that posting to the BB confers the right to use said material in other media, or books. The latter is more risky, and it would best be displayed for EVERY POST.

That's the simple situation. Where it gets complex and vague is if a webmaster takes posts from a BB, and re-uses them (repurposes) on another website. Probably requires permission unless it falls under the various copyright exceptions (criticism, parody, educational institional use, etc).

Finally, theoretically the copyright for the entire COLLECTION of messages on a BB belongs to the BB owner, so again, theoretically, the entire body could be published by the BB owner in any form. I've never seen any court cases on this particular application, nor any discussion on this.

Double final - the courts decide case by case. As do others like google, etc. But the poster owns the post, but allows you to use it, unless there is a TOS that somehow over-rides this.

BigDave




msg:929840
 5:56 pm on Jan 5, 2005 (gmt 0)

Finally, theoretically the copyright for the entire COLLECTION of messages on a BB belongs to the BB owner, so again, theoretically, the entire body could be published by the BB owner in any form. I've never seen any court cases on this particular application, nor any discussion on this.

Collection copyrights do not override individual copyrights. You cannot use those individual works in any form other than what you have a license to, even if you have a copyright on the collection.

The same thing goes for derivative works. Many people make the mistake of thinking that the law gives to copyright in any derivative work to the copyright holder of the original. This is not correct.

The copyright in any unique content in the derivative belongs with the person that wrote the derivative. But the copyright in the original work is also controlling, so any distribution of the derivative requires the permission of both parties.

billegal




msg:929841
 6:38 pm on Jan 5, 2005 (gmt 0)

Just to clear up some of the responses to my last post:

You can post to a bulletin board and create a copyright in that post. As the author, you will own that copyright unless you have assigned it to someone else or created it as part of a work for hire. Copyright exists the moment the work is fixed in a tangible medium of expression. Having it written to hard disk should be sufficient.

An assignment of the copyright is a transfer of all rights to copy, distribute, make derivative works, etc. Assignments of copyright must be written to be valid (at least under U.S. law).

A license is permission from the rights owner to exercise some of the rights without fear of suit (generally speaking).

An exclusive license gives all rights but does not transfer ownership (seems a lot like ownership though, particularly when it includes the right to sublicense and the license is "fully paid up").

I know one can obtain an implied license to copyright. Implied, in the legal sense, meaning the right's owners actions or words have created the permission. Posting to a bulletin board certainly seems to create an implied license for reproduction on the board for visitors to the board. There is an open question about whether the implication extends to reproduction in a book, for example.

Now, whether an exclusive license can be granted by clickwrap (or TOS) is still an open question in my mind. Clickwraps have been considered enforceable contracts. Does anyone know of a case where this has been tested?

Also, review sites would seem to be protected by the doctrine that one cannot be liable for their opinion (good or bad). Look at all the "sucks dot com" domains that blast companies. Those are the worst kind of reviews, but opinions are protected.

Has anyone looked at the liability board owners face for user postings? What have the courts said for moderated versus free-for-all? Does it follow the control increases liability theory?

rbacal




msg:929842
 3:20 am on Jan 6, 2005 (gmt 0)

I give up. I tried. Copyright ownership has NOTHING AT ALL TO DO WITH LIABILITY.

Brett_Tabke




msg:929843
 3:52 am on Jan 6, 2005 (gmt 0)

I think everyone agrees with that rbacal, but given the situation and concern to the webmaster - it has everything to do. Liability is a 1000 fold greater concern than copyright will ever be. Copyrights on minor written works are useless in the face of the real world application of copyright law.

As you can tell, there is alot of gray here folks. Please remember that this is not a legal forum and advice should be seen as a guide. That guide should lead you to seeking your own legal advice.

Brett_Tabke




msg:929844
 9:25 pm on Jan 6, 2005 (gmt 0)

Here is a current case with a very strong relation to the issues in this thread:

[webmasterworld.com...]

paulroberts3000




msg:929845
 9:49 pm on Jan 12, 2005 (gmt 0)

the poster should retain copyright, you should retain the right to reproduce or republish the material.

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