Forum Moderators: not2easy
Would the only way to solve the problem be to track down the original writer and encourage him/her file the DMCA request? This would probably be impractical if hundreds of pages are stolen, and many writers no longer care and/or are unreachable.
If there is noone to defend the copyright on a piece of work, does it effectively become public domain?
As for preventing copying, you are in an awkward position but I don't think it would take very many DMCA complaints before the thief got the point. You could probably do significant damage to their relationship with their sponsors and their ISP.
Tricky subject!
You could change your TOS to say that any poster on your site automatically gives you copyright to the post that they make. i.e. By posting they are contributing to your content, but, they allow you to have copyright over their post/content.
I doubt this will stop people posting, such is the nature of forums, BBS's, and blogs. It will, however, improve your legal position should you decide to take action against someone who is simply stealing your content. ;)
Keep in mind that if you file a false DMCA report, you personally can be on the hook for the accused's legal costs.
People can't do their own posting on my website, but I do invite visitors to send contributions, which I edit (if needed) and post in a "guest contributors" section. I have a very clear statement that the copyright remains with the author or artist, and that anyone wanting to use an article or picture needs to contact the contributor. Most who want to post articles don't care a whit about copyright, but there's one artist who does and keeps track of her own stuff. In fact, the one time I saw something of hers on another site and let her know about it (we're in regular contact, so no big effort on my part), she'd seen it first and had already contacted the site. She very much considers her work hers (not mine!) and I'm completely happy with that.
I have seen a TOS where it stated that posting to the site granted permission for the site owner to copy and or modify the contributed material and that the edited version was the sole possession of the site owner and as such copyrighted by the site owner. If a viewer wanted a copy they could either contact the site owner about the displayed copy or contact the author about the original copy. In any event they were not allowed to copy from the site without written permission from the site owner. The author was at liberty to send an original if they wanted to.
I am paraphrasing as I do not remember the exact TOS phrasing, but I did make a note about it in case I ever wanted to question a lawyer about it. I wish I could remember the site. Basically, what I took from it was that the site received content and due to the grant of permission to alter, they created something new from it, which they were then the copyright owners of.
You might want to pass something like that by a lawyer though. Of course, none of it means anything unless you are willing to persue it and I think there are many sites that make claims about copyright that do so only to keep borderline dishonest people honest.
Just my two cents worth...
Steven
What you do have is a collection copyright.
An example of this would be a blog article written by one of your members, and a bunch of comments by other members.
You do not own the copyright on any individual piece of that collection, so if someone copies tha article or any of the comments, you cannot do anything.
But if someone copies that article along with all the comments, even if they got permission form every participant, you can still go after them as the copyright holder on the collection.
Of course, before you proceed against them, talk to a lawyer who knows what he's doing.
1. You do not own the copyright to articles written by someone else unless unless you have them sign a written document saying they are transfering it to you. (which nobody probably ever does unless they are very serious publishers).
2. You could probably scare off would-be scrapers by putting up a TOS or a disclaimer, although it would have no legal value. Kind of like those plastic owls people put on roofs to scare off pigeons.
Want to show us some case law on that subject?
You come to my site, you post a truly original article, and you do so based up on the TOS that says I hold copyright to whatever you post.
If you post a photo to a site that collects photos and clearly says in its TOS that any photo you post you lose copyright over, then you still want to argue you have rights, I think you waived them by not reading the TOS!
It should be tested in court :)
RJ
Some "circumstantial evidence": As I've said in other threads, I work daily with articles being sent to medical journals for publication; the common practice with these journals is to require the author to sign over copyright to the journal in order for an article to be published. Many journals have the entire article submission, review, revision, and proofing process set up online, except for one thing - the transfer of copyright agreement. No matter how much of their business they do online or by email, they without exception require an actual paper signature from the author for the transfer of copyright.
They use language similar to the proposed TOS for other things, for example, "In submitting a manuscript to the journal, you are stating that the material has not been published previously and is not under consideration for publication elsewhere... You accept responsibility for the research results..." etc. My suspicion is that if they could throw copyright transfer in there, they would. But they don't. And they know the law pretty well.
It should be tested in court
It has in fact, been tested in court. You can have a click through license, but a transfer needs to be in writing, it must make clear what copyrights are transfered, and it must me signed by the copyright holder or his authorized agent.
I'll turn it around and ask you to provide caselaw saying that your TOS is legal given the very plain language in the statute.
Section 204. Execution of transfers of copyright ownership(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.
And from the definitions in section 101:
A ''transfer of copyright ownership'' is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.
Just about every place you find a case surrounding copyright transfer, there will be a ruling whether it qualifies as a 204(a) transfer, and whether it needs to be. here is an example from WALTHAL, ET AL. v COREY RUSK, ET AL.
We think it's time to take a fresh look at sec. 203, putting the statute in context, and because its plain meaning is not perfectly clear, we will cast a glance at its legislative history for whatever guidance it might disclose. The term of a copyright is the life of the author plus 50 years. 17 U.S.C. sec. 302(a). The ownership of a copyright vests in the author, who, of course, may transfer his rights as he sees fit. 17 U.S.C. sec. 201(a). A "transfer of copyright ownership" is an "assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license." 17 U.S.C. sec. 101. Transfers of ownership must be in writing. 17 U.S.C. sec. 204(a). Nonexclusive licenses are excluded from the definition of "transfer of copyright ownership." Therefore, nonexclusive licenses such as the one we are considering here may be granted orally, but they do not transfer ownership of the copyright. I.A.E., Inc. v. Shaver, 74 F.3d 768 (7th Cir. 1996).
If you lawyer told you that your TOS could transfer copyright, I suggest you see another lawyer about filing a malpractice suit against the first.
That is an excellent post that presents the exact argument I was hoping someone would respond with.
First up: I personally don't operate any website that asks for "user contributions" to its content....the question I raised was purely theoretical.
Second up: There is money to be made from such sites and I've been thinking about the legal issues for a while.
However, I still don't have a conclusion!
BigDave certainly represented a good case, but in the real world would this stand up? If it did, every poster to every site could insist that all their previous posts were pulled as they were unique content that was copyrighted and a "paper" waiver had never been signed.....what a nightmare for many board owners that would turn out to be?
Also, in the real world, we can all sign up for many more important things than "online posts" by using online methods. The IRS says if I type my name into a box it is as good a signature......so, if I type my email address into a forum discussion board does the same "type" of consent not apply?
It is purely a question.....it will influence how many of us behave into the future......but, I'm still not convinced any true law exists on how you give consent to your word or work online?
What you cannot do is take it and use it for any other purpose. You could even get in trouble if you were to drastically chaange the format of your site.
You might even have problems if they were to post on your non-commercial site, then you were later to add AdSense to the pages. I don't know about that one.
You can also have things spelled out in the TOS that grant you an explicit license. A non-exclusive license can be granted without the writing requirement.
The IRS says if I type my name into a box it is as good a signature......so, if I type my email address into a forum discussion board does the same "type" of consent not apply?
