Forum Moderators: martinibuster
You must carefully vet user-posted content before it goes up to stay on the right side of the rules.
The fact that many people don't, and don't care, is unfortunate.
I do not allow direct posting to any of my sites so that I can check copyright, etc, so it can be done.
A clear TOS, and after-the-fact deletion of violations is a reasonable second-best I think, but you are still taking risks.
I have been very careful with my sites, but have still had the odd unsettling call from government lawyers suggesting that I will rot in hell unless I do their bidding NOW...
Rgds
Damon
[edited by: DamonHD at 10:05 am (utc) on Aug. 22, 2006]
A clear TOS, and after-the-fact deletion of violations is a reasonable second-best I think, but you are still taking risks.
In the same way that short quotations are generally considered fair use, also in many cases small thumbnail images, because they usually do not diminish the commercial value of the original high resolution image. For example, thumbnails in Google Image Search have a size limit of 150x150 pixels, I think. It's a little bit more in Yahoo Image Search.
However, size (or amount and substantiality) is only one of the four fair use factors in the US Copyright Act. Therefore, in case of doubt we should delete, naturally.
You must carefully vet user-posted content before it goes up to stay on the right side of the rules.
Including every forum post? If there is actually legislation that spells this out, it truely is poorly drafted. But then again I assume you are not a lawyer. Care to cite a source to back up this statement?
For Americans, you can do your own research into the DMCA [copyright.gov] (PDF), which is the law of the land on this issue. A key section is here:
A service provider shall not be liable for monetary relief, or, except as provided in subsection ( j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider
(A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;
(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or
(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material;
(B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and
(C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity.
(2) DESIGNATED AGENT.The limitations on liability established in this subsection apply to a service provider only if the service provider has designated an agent to receive notifications of claimed infringement described in paragraph (3), by making available through its service, including on its website in a location accessible to the public, and by providing to the Copyright Office, substantially the following information:
(A) the name, address, phone number, and electronic mail address of the agent.
(B) other contact information which the Register of Copyrights may deem appropriate.
The only sticky issue I see there is how this is interpretted: "does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity." If there is legal precedent as to how a judge interprets a CPC ad placed near user-submitted copyrighted content that the web site owner did not know was copyrighted, I would love to see a link.
The form to register your copyright agent with the US Copyright Office is here [copyright.gov] (PDF).
Maybe you don't have to vet all the words that a user writes (if the text size is small enough to be unlikely to be a cut-n-paste of a copyright work that the user does not hold rights for as suggested above, for example).
But uploads of files should be subject to scrutiny/control IMHO.
IANAL, but I was one of the very first UK ISPs and had to deal with this issue (and lawyers) fairly often one way or another.
The general principles as I understand them are roughly that:
1) If you (ISP, Web site/host owner, etc) fail to exercise any care at all, eg run a warez site, by just having r/w FTP for example, then you are likely to be liable for all sorts of things simply from negligence and complicity at the very least.
2) If you edit/filter contributions at all then anything that you *don't* remove can be construed as having your approval. There are cases dating back to Prestel (BT's BB pre-Internet) for example.
These apply in the UK and US equally so far as I can tell, probably because of a large shared base of common law, social history, and and the principle of "comity".
But IANAL.
Rgds
Damon
[edited by: DamonHD at 4:03 pm (utc) on Aug. 22, 2006]
no, because forum posts are usually text that was created by the forum poster, so they own the copyright to it, and are subject to the tos of the forum, because that's what they agreed to when they signed up for the forum... the vetting part comes in when posters put up pictures or text that belongs to someone else.
afaik, posting pics that don't belong to you is different from quoting portions of text, with the proper attributes to the author... the latter is generally accepted fair use, but posting pics is all or nothing... you can't post part of a pic, because it would require altering the original, which is a copyright violation.
OMG! We seem to be in almost total agreement for once. I'll be leaving for a drink and a lie-down soon! (Well, a pint of beer anyway.) B^>
But, I think that the example above of showing a thumbnail is a pretty good analogue of quoting a small piece of text in that it probably does not hurt the value of the original IMHO.
Rgds
Damon
If you edit/filter contributions at all then anything that you *don't* remove can be construed as having your approval.
I'm not so sure that's the case. Clearly for the US the DMCA specifies a procedure by which site owners can be made aware of and remove copyrighted material on a case-by-case basis: "does not have actual knowledge that the material ... is infringing ... upon obtaining such knowledge, acts expeditiously to remove, or disable access to, the material."
There is a very interesting parallel between user-submitted copyright violations and user-submitted indecency, by the way. If we're trying to get inside the minds of the legislators on where liability for user-submitted content lies, we might want to consider the Communications Decency Act of 1996, which included a "good samaritan clause [www4.law.cornell.edu]" that explicitly addressed the concern you raise. The gist is that you can filter content in good faith without giving up your liability protection.
But to be sure, neither of us are lawyers and thus not experts on this topic.
good point... some recent u.s. court rulings on thumbnails in books and search engine results have sided against the copyright holder, largely on the basis that only the minimum was taken from the original work... thumbnails create something that is substantially different from the original picture.
however, from earlier this year: "The type of search with which Perfect 10 took issue is Google's "Image Search" function, which returns a page with tiny images -- known as thumbnails -- that fit the searcher's query.
The image search function also allows searchers to view the image as it appears on the page.
The judge ruled that because Google receives advertising money from offering search functions, it is not entitled to the same level of free use of the images as other entities would be."
[breitbart.com...]
so does adsense on a forum page change the fair use parameters of pic useage? google is not putting adsense up with it's image search results.
There is legally copyrighted work - that is - work registered with the US Copyright Office. And then there is everything else - work that you or someone else did but did not register with the US Copyright Office.
In terms of what the owner of the image can do about unauthozied use of an image somewhere else, it makes a huge difference if work has been copyrighted with the US copyright office. With non-registered work, about the best you can do is to file a DMCA complaint and then hope you can prove actual economic damages if you want to seek any sort of a monetary award. For this reason, I suspect very few lawsuits are ever filed over work that has never been registered with the copyright office - especially if the violation is nothing more than a few picture postings in a forum somewhere.
This changes if the work images that are being used have been registered with the US copyright office. Once registered, damages to not have to be proven. It's enough that you copied the content - period. There is also no "proof" requirements about who owns the work - as whoever got the copyright first wins that argument (unless of course their is a dispute about the copyright, but thats another issue).
Why do you think the music industry has been so successful in getting people to "cough up" money? All songs have been registered with the US copyright office. All the music industry had to do is find out the people who copied the work, file a lawsuit, and cha-ching - money in their pocket. They don't have to prove damages. The simple act of copying their music was enough.
I'm not a lawyer, but I believe that EACH reproduction of legally registered copyright work can result in $3000 worth of damages - and the plaintiff does NOT have to prove economic damages.
Thus, before allowing people to upload images to your website, be darn careful about what kind of images they plan on uploading - and NEVER think the original owner of the image can't do anything about it. This is especially true if you then plan on making $$$ from the use of their images - such as attempting to sell them, run Adsense all over the place, etc....Such unauthorized use of images can really put the original owner in a very bad frame of mind right off the bat - leading to no DMCA complaint, no warning - just a lawsuit ASAP seeking damages for unauthorized use of legally registered copyrighted work.
Jim
