|Forums: Is there a case for copyright infringement?|
Getting a message forum going
Everyone knows getting a forum going is a slow process. No one wants to be the first to post. Is it a copyright (or any other) infringement to get your forum going by using dupicate text of other forums? I did the asking friends and family route to start a forum, and it worked great for one of my other sites, but I don't want to have to ask again. Can you claim a copyright to your visitors' posts? I can't see how, but the long arm of the law always manages to be longer than one would think. I'm not talking about copying 1,000 posts, just 10 or so for each topic to get it started.
|You will not copy and retransmit any information out of these forums without first getting the permission of the original author of the message and a WebmasterWorld.com administrator. |
Bottom of each page:
|(c) WebmasterWorld.com 1998-2004 all rights reserved |
So you may copy the information if you get permission first. If there are 30 posters, you need to get the permission of 31 people (each poster plus WebmasterWorld). It is unlikely that you will get permission if you are setting up a competing board. In fact, you are increasing the legal action probability. Most boards will have similar terms.
Note: TOS does not apply to registered users only. TOS applies to anyone who uses the site for any reason.
I didn't mean this forum;) Or anything relating to computing or the internet. Sorry if I wasn't clear.
It is unlikely that you own the copyright in your visitors posts: assignment of copyright has to be written and signed.
If you don't have an explicit license, then the posts are arguably only implicitly licensed by the poster for use in the original forum, not any subsequent forum. Thus, you cannot re-use them elsewhere or in any other way without the posters permission.
If you do have a license - i.e. because you previously set up a ToS - then you need to look at the ToS to see what the scope of the license is: presumably the posters agreed to your ToS - thus license - at the time of posting and thus you can do as you please within the scope of the license.
In the case of copying 10 or 1000, it doesn't matter: the fact is that you are copying an entire post which is substantial enough to be considered infringement.
In a court of law, the tests for copyright infringement do not look at the economic impact of the copying (that test only occurs when technical infringement is first proven), but such economic impact is often a good guide to how fair the copying is. In this case, you seem to be leveraging the owners copyright at their expense for your gain: this tends to suggest that you're infringing.
Thanks for the great responses guys. I'll just let them sit and see what happens:)
If you lifted my posts and I discovered that fact I wouldn't afford you the chance to play the repentent thief. I would just sue you. I'm not even certain of the range of theories at this moment. Copyright infringement? False light? Conversion? Invasion of privacy?
I wouldn't have to hire a lawyer to do that since I am one.
Here's a little a life guiding principal: Do not resolves doubts in favor of your own self-interest when some else's interests are involved. Ask, disclose, get permission.
I wouldn't worry too much about it. While technically you would be violating copyright law, the messages you would be copying have no real commercial value, therefore actual damages would be zero or very close that. NO ONE is going to sue you simply for violating copyright if no damages were involved.
If you're that concerned about the copyright, why not just put each message in your own words and go from there? if it's in your own words, then no copyright violation
Jpell, if your sole objective is to seed the forums, why not just create a few conversations on your own? Pick some provocative topics that you think might pique the interest of any visitors. By doing a few threads yourself, you can also choose your title & keyword text carefully to generate some search traffic. Play the troll... ;)
I disagree with Wackal about the risk being minimal. We've just heard that Webwork would file suit himself just because he can ;). I'm not an attorney, but I usually go to fairly great lengths to be a complete pain to someone who rips me off. Among the possibilities are notices to every whois contact, e-mail and street addresses listed on the site, domain host abuse coordinator, ISP abuse coordinator, advertisers on the site, affiliate partners, DMCA complaints to Google et al, etc. My hope is that at least one of these will bring the hammer down and that dealing with the others will burn up many hours of the thief's time. All that is without a lawyer getting involved; if the thief appears to have deep pockets, I'd probably go straight for the legal jugular.
While it's true that your theft might never be noticed and that even if it is a request for removal might be the only action, there is a chance you will anger the wrong site owner and end up paying the price.
but what if he's a nobody with no money and he ignores your emails?
BTW, if WebWork was a real lawyer he wouldn't waste his time suing someone if no damages are involved. That is the definition of a frivolous lawsuit and most judges would just throw the case out.
|what if he's a nobody with no money and he ignores your emails |
That's when you go after the web host, the host's pipe provider, any business partners, and the search engines. You can still file suit, too, and hope to put him completely out of business. Unless the theft looks inadvertent, why give the site owner the chance to remove it? Unscrupulous site owners feel they can copy content because they assume that won't pay a penalty beyond removal; as content owners, we need to exact a price for theft that will make those involved think twice before doing it again.
For many years, I had a mail order business that had a fraud rate so low that our credit card processor could scarcely believe it. One way we kept it that way was by devoting what seemed to be an uneconomic amount of time to making life difficult for thieves. Many companies would just delete an order found to be fraudulent; instead, we had an individual who would contact local authorities, postal inspectors, the Secret Service (oddly enough they are responsible for certain types of fraud), and anyone else who would listen. If we found a legal authority who took an interest, we'd go out of our way to cooperate by shipping marked packages or whatever else they needed. Our people took great pride in getting one of these creeps sent to jail. It didn't make economic sense to spend many hours and a good deal of money to put away some dumpster diver ripping us off for a couple of hundred bucks, but it certainly put the word out that we weren't a soft touch. Plus, helped the industry as a whole and, well, it felt good.
Moral: some site owners may look beyond pure economics to go after content thieves. They may think it's worth a few hours of their time or a few legal bills to send a message.
so you're going to go thru all that time and effort to get some guy who took 10 message posts off of one of your forums?
Also, what would you sue for? The individual posts in a web forum belong to the poster, not the website owner. You would have no standing to sue because "your" copyrights haven't been violated.
Also, talk to any "real" lawyer and they will tell you flat out that if you haven't suffered actual monetary damages, there is almost no point in suing anybody and most judges would not let the case proceed because it would be a waste of the court's time.
Ahhhh....the freshness of the great WW outdoors. Where the air and the analysis is a bit more ...rarified?
Wacky, it would depend. If it was just a little post like this I might not bother. If it was a more analytical piece, or a critical piece, I might. If it was taken out of context I might. If someone else took credit for my thought I might. If someone got annoyed and it found its way back to me I might. You see, when you play games, you never know what might pull the trigger.
Under U.S. copyright law you aren't put to the task of proving actual damages. You can sue for either actual damages or statutory damages, up to $100,000 (if I recall exactly) per incident.
No assets? No problem. Little thieves usually can't afford a lawyer so I take a default judgment for max. statutory damages against the little brat. At a proof hearing a judge awards me $25.000. in statutory damages, plus fees and costs, because I convince him the brat behaved badly. Then I docket the judgment. I do this all in my own backyard because I'm the aggrieved party and the cause of action resides where I do because you stole my property. The whole process? 5 hours total. Thereafter, when the brat tries to buy a car, rent an apartment, apply for credit, buy a home - you know what? "Sorry", the lender says, "but you've got this big judgment against you." "Oh", you say, "I'll just file bankruptcy". "Well", your creditor says, "we don't lend money to people who filed bankruptcy in the past 7 years...". You don't file bankruptcy? Hey, I don't do collection work but there are plenty of firms that are really good at it. Then the brat gets to decide, maybe a few years later when he's grown up a bit: Do I file for bankruptcy and screw up my chances of buying a house or do I reach into my pocket and pay this off? Do I offer $2,000, $3,000, $5,000.? What do I do. Then it all comes back to the brat: Boy was I stooopid.
Problem is, at the time, brats don't get it. Otherwise, they wouldn't be brats.
My point is: If you don't know who you are messing with why take chances? Ask. Get permission. Do it yourself.
P.S. Before counseling yourself on the legal consequences of your actions .....get a law degree, or consult a lawyer ;-)
P.P.S. "Real lawyer"? Moi? Please, I'm trying hard not to be a real lawyer. I wanna be a webmaster.
P.P.P.S. One thing about real lawyers: they don't need the money, so they can choose to do some things just for the fun....or hell of it. Those are the really dangerous ones. No kidding. Everything that made them good enough to not worry about their next buck is what makes them hell-on-wheels when it gets personal. I've known a few. I'm not talking about myself. I'm a perpetual nice guy. Really. Trust me. I'm a lawyer ;-)
[edited by: Webwork at 11:44 pm (utc) on Feb. 23, 2004]
I forgot, you're going to file your case in the district court of Fantasyland. and I'm sure it will turn out exactly as you said.
I wish the legal system did work like that, but in the real world, money is always a factor and if you didn't lose any actual money then you can't sue for anything.
So, you're going to get in front of a judge and say "oh by the way, even though I have no actual damages, just please award me 100k in statutory damages."
There's also the "if you can't make original content on the web, then you couldn't organize a piss-up in a pub" factor.
C'mon - this is content! As has been said, seed out a few threads yourself. Do some reading, quote some articles, but make the questions original. How are these boards being marketed? Are there any customers or interested souls who've slapped down an email address? Get in touch and tell them to start posting.
Is there anyone else involved in this project, or is it a one-horse thing? Set up different profiles and take on different personalities if you have to. Or, if there are other, get them involved - users will dig that anyway. We like it when the mods and admins are also regular participants.
Oh and Webwork - could you sticky me your url? I want to put you on file in case I need a content lawyer!
[edited by: antsaint at 11:50 pm (utc) on Feb. 23, 2004]
Sad but true. The courts follow the law. The law was passed by the legislature. The legislature decided to favor the copyright holder, not the thief. So, when proving actual damages is a task, the legislature said "No problem. The judge can award statutory damages."
Wackal, some people just have to learn by their mistakes. I get that sense from you so forgive me if I don't attempt to counsel you further. As my father used to say: "A word to the wise is sufficient."
Let's disregard the legalities of copying posts from other forums for the moment.
Jim, John, Fred and Sarah have posts on a forum similar to yours. You copy their messages to your forum to get yours started.
Now, since none of those people are members of your forum, if others respond to their messages, they won't be there to reply back!
So, if people think the people who started the conversation are gone already, they might just leave too! Or, they may be more reluctant to post again, since they think no one else is really out there.
Copyright issues aside, I think that is one good reason for not copying posts from other forums.
Another is that if you have a bunch of posts from Jim, John, Fred and Sarah, it may look like they have their own little group on your forum, and others may be reluctant to jump in.
I'd seed the forum myself with starter posts, and then wait and see. You may wish to keep posting, even if just to yourself, just so that people know someone is really there.
Solicit friends to join your forum as well to help seed the forums. That's worked for me in the past.
Firstly, we should have professional ethics and not engage in such activities anyway.
Secondly, even though no one may pursue litigation, it's possible the activity will damage user reputation and other aspects of goodwill.
Thirdly, one of the posters could easily file DMCA actions to block content from being listed in SE's, and also ask ISP to take down the site.
I agree 100% that we shouldn't engage in unethical behavior, BUT, this is a message a board and the original post was asking "what would happen if he did this?" Now I don't feel that I encouraged him to do this, I just told him what would probably happen.
I don't think it helps anyone to have people blowing a lot of hot air about what they will or will not do, or giving misinformation about what will or won't happen.
You may not like what the original poster is doing, but the truth is that a lot of people do it, there's no real way to stop them, and even if you find out who is doing it, there is not a whole lot that can be done.
|there is not a whole lot that can be done |
Wackal, several members have, in fact, described courses of action that are effective even for "minor" copyright infringements. For yet another anecdote, check Content Theft - a Happy Ending [webmasterworld.com] posted by JudgeJeffries.
We seem to have provided jpell with some different viewpoints and advice, so if someone wants to have a fact-based discussion of the difficulties in going after small copyright violators let's do that in a new thread.
Thanks for all of the posts, and if you look back, you will see that after being advised, I decided to let the forums sit and see what happens. As I said earlier, I enlisted the help of friends and family to get a forum going on a completely unrelated site, and it is flourishing. I just didn't want to have to ask again, and I would rather spend my time building content rather than writing ficticious posts. It was a thought and thanks for your well informed replies. By the way, I'm a "she", not a "he". HeHeHe ;)
[edited by: engine at 12:40 pm (utc) on Feb. 26, 2004]
[edit reason] spliced form new thread [/edit]