Forum Moderators: LifeinAsia
My question is:
The board's owner (despite being a moderated board) claims that as the publisher, they are not in any way responsible for what people post and that responsibility (should legal action be taken) lies solely with the poster. They have noted this in the terms of service.
However, it has been my understanding of the Digital Milennium Copyright Act that both parties (the poster and the publisher) are mutually responsible if the owner decides to take legal action.
Which is correct?
If someone files a notice of infringement with the hosting company, the board owner may find some or all of his forum shut down. Then, he'll either have to agree to remove the material, or file a counter notification and go to court to prove his "fair use" claim.
Is there anywhere on the internet where I may find a synopsis of the "fair use" clause?
The language used by Congress in Section 107 specifically lists criticism, comment, news reporting, teaching, scholarship, and research as examples of uses that might be protected under fair use.
This question appears on the Chilling Effects site and is as close as I could come to what I am looking for.
Question:
Can an operator of a computer Bulletin Board Service (BBS) assert fair use as a defense to allowing a third party to use the service to post infringing copies of works to the BBS, creating a temporary copy of the work on the operator's server?
The answer is not at all what I had thought I would find as copyright ownership seems to take a back seat when it comes to BBS services. However, the last sentence is of interest:
Finally, the court found there was a qustion of fact as to whether the use affected the potential market for the work.
I have a situation where a poster has copied and pasted my material to a travel forum. (Not the first time)
A few days after the post showed up in the travel forum, I performed the same search on Google which allowed the poster to find the information they were looking for ... the page which came up first in Google was the travel forum page and my page had disappeared from the serps, presumably because of duplicate content.
I wrote to Google in an effort to set things straight. I don't know if they took any action or not. But my site is back at the top of the SERPS for that search and the travel forum listing is gone. It may be that the forum page simply aged out and is now gone from the server. However, my page now has the dreaded messsage:
"Your search - link:XMaKTkm89c8J:www.mysite.com/specific_page.html - did not match any documents." ... when I checked the links. Prior to that, it was doing just fine.
In all honesty, the particular information which was copied is of no consequence to my site and will not affect my income, but it has affected that page and does give rise to the question about what one should do if this happens at some time in the future and does cause loss of income
To send a cease and desist notice, file a DMCA complaint, and then sue the anonymous poster with no e:mail address ... is of course ludicrous!
But, would I have the option to register a complaint against the travel forum and sue them? It is afterall a moderated forum and they should be able to identify what is copied and pasted from another web site without too much trouble. In this particular instance, the poster named my site, although they spelled it incorrectly and put the first word last.
The thing is that since it has caused some sort of penalty for my page ... this could theoretically be yet another way for competitors to harm your web site. If Google can't figure out who owns what, I could see plenty of idiots rushing out to do this sort of thing to their competition just for the hell of it!
Finally, the court found there was a qustion of fact as to whether the use affected the potential market for the work.
few days after the post showed up in the travel forum, I performed the same search on Google which allowed the poster to find the information they were looking for ... the page which came up first in Google was the travel forum page and my page had disappeared from the serps, presumably because of duplicate content.
I would send an email referencing a letter to follow (with letter referencing prior email) to the forum administrator noting that as their page with your content has replaced your page with your content in the SERPs and therefor you have lost (leave undefined) visitors, page views, and subsequent income on (list occassions) noted occurrences you are giving notice of DMCA and loss of earnings/damages for subsequent abuse. And follow through on any and all action promises.
It may accomplish nothing except lay the groundwork for a future copyright abuse claim. Such groundwork often makes a big difference by showing a pattern of behaviour. Always copy your original pages/serps/traffic, the forum postings/dates, and the subsequent changes to your serps/traffic/etc.
Also note the way that your material is used - is it appropriately commented upon, are you properly credited (consider a misspelling or broken link as deliberate falsification), is it appropriate in the context of the thread, etc.
There is a very different (stricter) threshold for moderated sites than unmoderated. And complaining before it costs you much is better than waiting until it does.
I like to request the name and address of their lawyer for referral to mine - some people find this too confrontational - I like to confront thieves and fences.
copyright ownership seems to take a back seat when it comes to BBS services
Do a search for the Free Republic case. They got hammered by some newspapers because their users were posting whole articles. They tried to use the "fair use" provisions and failed (they tried to use 1st amendment defenses, too, and also failed). They still post whole articles, which is against the law, but, not from the sources that sued them. They seem to love litigation.
I usually send an email message to the registrant and a copy to their host informing them that they're in violation of the DMCA and ask that they sustantially modify or remove the content.
On a few occasion we've had to fax a notice to the host and the page(s) were removed within a few days. In most cases the content was removed an we received an apology from the site owner.
I've found the info at KEYTLaw to be pretty informative and very useful. You might want to take a look there.
As far as the option of suing the travel forum I'd consult a lawyer.
I have sent the URL for a specific page to the owner of the forum in the hopes they will get the idea. Oddly enough, the owner is a lawyer and was under the mistaken belief that she was somehow exempt simply because she has a warning about copy and paste practices in their TOS. According to Keytlaw, that simply isn't so!
That site is a great resource for anyone trying to convine hard headed folks out there about what is and what isn't acceptable! Finally!
