billegal - 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?