How to handle user submitted content?

[JeremyL]

I am looking at creating a site that will accept user contributions and I am debating how to handle these. It's not an article based site, more of a database of information type site. How should copyright issues be handled and what would be my exposure if someone submited copyrighted info? I thought about creating a user agreement stating the person submitting the content certifies it is not copyrighted work or they own the copyright but I'm not sure if that makes any difference to our liability in a worse case senario.

[BigDave]

I run a review site.

The way that I handle it is that I make it very clear that I only accept original work, even if they claim that the copyright holder has given their permission. I just don't want to deal with it.

I am especially strict with this as far as pictures go. Anyway, real use pictures are a lot more interesting than the PR photos from the companies.

If there is a specifc point they want to make in relation to a manufacturer claim, they may quote as much as necessary to make their point, but no more. Again, this serves the double purpose of avoiding copyright issues, and keeping them from just regurgitating manufacturer claims.

And finally, when they join up to become reviewers, they sign a document where they give us the rights to publish their reviews, and to allow manufacturers to quote from them.

This document doesn't even try to have them pass us the copyrights, but it is sufficient to at least show that they at least intended to upload to our site and give us the right to use it.

You should also be prepared to immediately deal with any claims of infringement, by taking down the information while you investigate the claims.

It probably is not enough to give us complete protection, but it does help reduce the likelyhood of any problems.

[JeremyL]

That makes me wonder where is the line crossed from an info site that provides reviews, to a review site that reviews info. One has no fair use right, while the other has at least limited use as long as sources are cited.

[BigDave]

Everyone has fair use rights. It varies by who you are, what your intention is, how much you are using, and the value of what you are using, but there are *always* fair use rights.

[Webwork]

Always, eh, BigDave?

Hypothetical: I run a subscription site. Users only have access to the content by virtue of agreeing to certain terms and paying the requisite fee. Amongst those certain terms is the following: "1) You agree that you will not copy, redistribute, or republish in any form or for any purpose any part of the content found on this site. This includes using content for what is known as "fair use" purposes."

So, does contract trump fair use, and thereby effectively defeat it?

Always? Never?

2 words that are a joy to skeptics.

[BigDave]

That sounds to me like contract law, not copyright law.

If someone violated the contract, what sort of suit would you file? I'm guessing contract.

Yes, you are able to sign an agreement that you will not use your fair use rights, but that does not mean that they do not exist.

[Webwork]

Interesting. I haven't researched this but I respectfully disagree. What rights do you have if they never inure to you? If, before you enter and read, you agree - as a condition of reading - to surrender/waive the right(?) to claim fair use rights then, in relation to the materials in question, they never exist. Ergo, no rights at the time of the encounter = not rights, in relation to document X ever. (Hmmm, is that a tree falling in the woods?) Somewhat like protective orders for trade secrets: We'll let you take a look at the formula but you agree that's the end of it. In that case it can be a court order or an agreement that says 'this isn't a publication or waiver'. Either way the trade secret remains a trade secret - with all that means - despite the fact that an outsider is now privy to 'the secret'.

Question: Can contract trump a claim of fair use if the TOS of a website make agreement to the TOS a prerequisite to entering the site and the TOS read like above? Therefore, no taking snippets without prior written approval? Enforcable by virtue of the contract of the TOS?

Somebody call the guys at Stanford and ask them to resolve this once they are done calculating the number of angels that can sit on the head of a pin ;-)

Lastly, BigDave, I apologize for the tone of my comments in 'the other thread'. It was a tough week and I was a bit cranky, condescending and out of sorts - all unmerited and unjustified. I did mean the part about you being quite bright, but at the same time I was acting the bit of the lawyer jerk. Yech! I promise ; ; that will never ; ; let that happen again ;;;;;. (Just say "Okay, Jeff you are lapsing into jerk mode. Time for a nap." Usually after a nap and a snack, or a couple of good nights sleep I can recover my sense of humor and perspective, at least according to my wife of 25+ years this is the case.)

[BigDave]

Apology accepted.

It would be a lot clearer under pre-1976 (or was it 1909?) copyright law, when the case you are suggesting would have been considered trade secret, and strictly covered by contract law until it was published, registered, etc. Copyright covered "public" works, and you had "ownership", or "natural copyright" of your private works. The creator, or his heirs were the only ones that had the right to publish, and the copyright term started when you published the work.

I really don't know if you could bring copyright claims against someone for violating that contract, if the violation would have been a very minor fair use. That contract, at the very least, would strengthen your claim.

But would that contract be strong enough so that you could not even refer to the title of the document under fair use? I just don't see a case getting that far if you were to file it as a copyright case instead of a trade secret case, if someone only referred to the title of the "secret" document.

Also, almost all those contract have wording to the effect that you no longer have to keep it secret if you find it through some publicly available source.

I would not go so far as to say that contract law trumps copyright law. I would say that they work together. The contract states how each side will use their rights.

If a copyright holder signs an exclusive publication contract without assigning the copyright, is he not still the holder of the copyright? If he buys a press and starts printing up copies on his own, wouldn't it be a contract case, because he still holds the copyright?

I honestly do not know. I don't know contract law anywhere near as well.

This is just speculation and gut feeling on this one. It seems to me that you can sign an agreement to not use your rights, but that does not mean that those rights do not exist.

While Title 17 is very specific about how you may sell your copyright, there is noting in it about how to transfer your fair use rights, so I am assuming that you are not able to. You can only agree not to use them.