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Post Ownership

Discussion in 'Off Topic' started by ibaker, Dec 21, 2011.

  1. ibaker

    ibaker Well-Known Member

    A couple of years ago we had a user who requested to have all his posts removed. This was going to cause a lot of damage to existing threads so we declined. Legal action then followed and it was proven that the ownership of posts, unless stated in the rules and policies that a user agrees to when registering, is retained by the user. We were forced by law to remove all that users posts and had 7 days to act on his requests.

    Legally the user can request to have all their posts removed at any time and you, the forum owner is required to act on any such requests from the user.

    It came down to either the user owns the posts and thus having ownership can dictate what is done by third parties, i.e. the forum owner, with those posts including having them removed OR the forum owner assumes ownership of the posts upon their submission, in which case it has to be clearly spelled out in the forum rules and policies that the user agrees to when registering. This then makes the forum owner responsible for any posts that are made that may be defamation or have any other legal ramification. A dangerous situation for a forum owner even if you have a disclaimer in your site rules and policies...as we were informed.

    So to overcome this dilemma our legal representative then had to create a complete set of new rules and policies for our site to overcome these issues and all current users had to agree to them. Luckily we already had a notice that the site rules and policies could change at any time and that any changes would be published in our "Announcements Forum" so we were able to put the onus back on to the users instead of having to get them to acknowledge the rules and policies again before they posted.

    How our solicitor overcome the court's decision was to have two statements in our rules and policies:

    - Legal rights of the content added to this site by its members or visitors belongs to Site administration when they are submitted to the site unless it is clearly mentioned otherwise in the content that is submitted. Site visitors/members can not ask the submitted content to be removed or unpublished from the site later nor can they ask for the content ownership to be changed once the content has been submitted.

    - User agrees to indemnify and hold Aircraft Pilots and its servants harmless from any loss, liability, claims, damages and expenses, including legal fees, arising from or related to the content, use, or deletion of User's Files, messages or use of any other feature or service in this site. This expressly includes:
    • User's responsibility for any and all liability arising from the violation or infringement of proprietary rights or copyrights.
    • Any defamatory or unlawful material contained within User's messages, private messages, emails, attachments, images and files.
    • Content submitted to the site by the user
    • Other content in the site
    • Communication with site administration
    A side benefit that came out of this was that with the ownership of the content being with the forum owner, copyright laws of that content were strengthened.

    We often think that we are covered in one way or another but until it is tested in a court of law you can only guess that you are covered.

    If you are interested in seeing our complete and somewhat long winded but learnt from experience, rules and policies, they are at:

    Hope this helps other site owners in keeping themselves covered...we had to find out the hard way

    NOTE: Previously whatever I posted was copied by a competing site. So I post this in the hope that it does help others but on the condition that anything that I post is not allowed to be used by Glenn Inwood of Cowra NSW Australia or anyone associated with him.
  2. AdamD

    AdamD Well-Known Member

    Interesting to know anyways, thanks for that
  3. Anthony Parsons

    Anthony Parsons Well-Known Member

    Exactly. My solicitor did this years ago when I had mine done, by making all posted content copyright the site, its owners, etc... they lost the legal right to their posted content, as they agreed legally to assign copyright of their material to the site.

    It turns legal rights for posting content around and into copyright law, which overrides if you agree "electronically or otherwise" to assign your contents rights to the site owner.

    Copyright law does come with its own issue though, being you must enforce copyright if such violations are discovered or brought to your attention, otherwise you literally dilute your entire copyright and open it up to be dismissed.
  4. ibaker

    ibaker Well-Known Member

    Yes Anthony and as we found out though, it must be stipulated and agreed to by the user at the time of registration that the user loses all rights of ownership of posted content. If it is not specifically stated then the user retains all ownership rights of all their content and therefore can state who can have it published and who can't thus allowing the user to be able to remove all their content from a site at any time...and the forum owner has to do so as they are using your content once you revoke all permission to that content.

    The main issue to this is then by clearly stating that ownership rights are transferred to the forum owner, the forum owner is then open to ALL legal implications of having that content. Being an Australian mate you would remember the Gutnick (Australian) case against Dow Jones (USA) http://www.findlaw.com.au/articles/1586/internet---the-gutnick-decision-and-its-implicatio.aspx and if that was for example a forum then anything that a user places on a forum could result in the forum owner, if they have taken ownership and copyright of the content, in a situation where they can lose everything and for years to come.

    It is extremely hard to "have your cake and eat it too" and too bigger a risk to even try

    So, as we found out, to have the option of agreeing to or denying a user from deleting all their posts, the forum owner MUST take ownership of all their site content and it MUST be clearly stated that they do have ownership at the time the user registers or prior to any content being published. At the same time the forum owner MUST then take the necessary steps to protect themselves from any claims that a person can have against the forum owner for what some user may have posted on their forums. What also makes it hard is say a forum owner in the UK and someone in Australia says that "John Smith of X is a Richard Cranium", how does the UK owner know anything about John Smith in Australia to make a call on the whether to let the post go or not.

    You either own the content by first advising the user BEFORE they post content and accept the risks of ownership, or you don't own the content and must adhere to the content owner's wishes in terms of displaying that content or not.
    Hyperion likes this.
  5. DeltaHF

    DeltaHF Well-Known Member

    Thanks for sharing your experience with this.

    What made you both decide to claim ownership of the material? Why do you consider the potential inconvenience of removing a user's posts greater than dealing with the potential risks assumed when claiming such responsibility for posted content?
    kyrgyz likes this.
  6. Anthony Parsons

    Anthony Parsons Well-Known Member

    Owning copyright has nothing to do with owning defamation. They are not the same thing in law. Copyright is possession, defamation is ownership only by the person defaming, not a third party who may own copyright. A court of law decides that though, not a website owner... and as long as you obide by a court order, then all is well when owning copyright of content.

    Taking ownership of copyright ensures the integrity of site content. I have has a few cases now which all got shut down before they made it to court, as the law is not cut and dry on anything Internet, especially across countries.

    I had one member post offensive words to another. The other wanted to sue me as copyright owner. They quickly found that they had no right to do that, as ownership of copyright does not equate to that owner defaming a person. So they had to chase the person who stated such. They asked me for the posted persons details. I refused... as I will only release such information by court order. Person tried to get a court order in the US... failed, as the US courts have zero jurisdiction over me. They had to apply through an Australian court to get the court to order me to release the members details.

    If they continued, let alone the cost, they had to fight two battles. One with the member, the second with a foreign court and law system, to order me to do anything, ie. remove the content. I spoke with a solicitor about it, and as they said... do nothing, as I have no obligation to do a thing until a court orders me to do such. As long as I comply, as the owner of the site, with any Australian court orders, then i was fine and well.

    Internet + cross borders = massive headaches to achieve something legal.
  7. ibaker

    ibaker Well-Known Member

    Location of server also comes into it
    Anthony Parsons likes this.
  8. dieketzer

    dieketzer Well-Known Member

    terms and rules
    so is it ok if i selectively copy and paste all that into my terms and conditions (assuming i am not glenn inwood nor involved with him)?
  9. ibaker

    ibaker Well-Known Member

    Assuming that you are not him, I suppose you can dieketzer however I don't give any warranties of any kind that it suits your needs
    dieketzer likes this.
  10. Morgain

    Morgain Well-Known Member

    I have something like this with our teachers. When teachers create educational materials while being paid to do so - like programmers - the materials belong to the person paying.
    However what we do is state that copyright, but we also say that we will normally waive the copyright on request providing that if we do so it would not in our judgement cause harm to our business.
    I think this could be used here.
  11. Daniel Thomann

    Daniel Thomann Active Member

    may I copy this, too (as well assuming I'm not glenn inwood nor involved with him)?
  12. SchmitzIT

    SchmitzIT Well-Known Member

    I'd also like permission to copy the rules for my own use. Could that be arranged?
  13. rexxxy

    rexxxy Active Member

    Wassup mark b I havent seen you on vb.com in a long long time
  14. Deebs

    Deebs Well-Known Member

    He is doing his drama queen act :p
  15. jadmperry

    jadmperry Well-Known Member

    Good topic and it is true that people may have issues with TOS, Copyright, and other legal issues. However, I point out that there is likely no "one-size fits all" solution and the choice of law/choice of jurisdiction issues will make a big difference to the resolution of any issue.

    Don't confuse Trademark dilution with Copyright. Not the case that you have to pursue every copyright violation or lose copyright protection (at least in the US). Trademarks must be defended, copyright does not have that requirement.

    Haven't given much thought to this, but it seems highly unlikely that owning copyright to something would make you liable for anything arising from the content. Ownership =/= liability. The issues seem to run more towards DMCA.
    Anthony Parsons likes this.
  16. ibaker

    ibaker Well-Known Member

    Assuming that you are not him, I suppose you can Daniel Thomann and SchmitzIT however I don't give any warranties of any kind that it suits your needs
    Daniel Thomann likes this.
  17. Jason

    Jason Well-Known Member

    The copyright argument doesn't necessarily hold weight in the U.S. (for those based here), where law requires a conveyance to transfer copyright if it's not work-for-hire. No click-through or site ToS will transfer copyright ownership in the U.S. (I doubt it would work for any property, which copyright is). What you really want is a non-exclusive license to use the content.

    I doubt you could retroactively apply a ToS update to old posts, as well.
  18. Anthony Parsons

    Anthony Parsons Well-Known Member

    That has been my experience concerning Australian law, being my jurisdiction and ibakers. I don't know how well that TOS would go if you're a US, or other, citizen.

    I found the DMCA was the only aspect in relation to my hosting location... as even though I host in the US, that does not make me come under US jurisdiction, or its laws, especially now with the opening of free trade agreements between a collective of countries for services via the Internet. As my content is hosted on a US server, I must comply with US laws applicable to the hosting of content, though all other laws are based on my physical location, regardless the contents location in the world.

    This new collective free trade agreement has cut through a whole lot of nonsense in relation to services across borders via the Internet.
  19. Anthony Parsons

    Anthony Parsons Well-Known Member

    That tends to answer that it is useless for those in the US then.... as Mark B's seems to have it more accurate.
  20. jadmperry

    jadmperry Well-Known Member

    I am not a Copyright guru, but have looked at some of these issues in the (distant) past. I think you can "gift" a copyright. That is, if it is not a "work for hire," I don't think contract law principles that would defeat enforceability of a "naked gift" without consideration. My cursory look at the issue shows gifting your copyright is a valid transfer (but, I would not say this is a blanket truth- not sure how different jurisdictions would look at this problem or how it would resolve; again, I just did a cursory look at the issue).

    A few other thoughts- It may be possible to condition posting on your site of your materials on a transfer of copyright. It seems that, going back to a contract theory, you could make the publication of the materials the "consideration" that would support a contract to transfer the copyright. Note that this is a distinct issue of the above discussion- where you don't need a contract to convey the copyright to someone else. This issue would pose that a contract was created to actually transfer the copyright in return for making publicity available.

    Note that in the US, there is no requirement to register a copyright in order to have one. The "right" springs into existence upon creation of the original work. However, most of the important rights under Copyright law hinge on registration. (The most important probably being the right to statutory damages for infringement for registered Copyright owners).

    Another point- the post has to be "copyright-able." While I think most original posts would be, some would not. Also, I think you would have to look at whether your use of the post on your site would be Fair Use and thus fall outside of sanctions for otherwise infringing use of the matter.

    Finally, I did a quick look at the issue of abandonment of copyright. Without going into the technical issues, it appears that there is support for abandonment of copyright (whether it means that it was injected automatically into the public domain or whether it just means that by disclaiming copyright protection, the "owner" is estopped from asserting his rights in the work). So, the question then comes into play, can you insert a prospective disclaimer of copyright ownership or use by the site of the ostensible copyright material? My instinct is that you can, but, I would of course caution that this is not a guarantee that I am right and, of course, different jurisdictions may treat the issues differently (though, the treaties mentioned may help to give some predictability to the outcomes). I note that it has been about 8 years since I have seriously looked at the issues, so there may well be contrary authority for everything I have written.

    On a separate point, I would say that choice of jurisdiction/choice of law clauses on the site may also provide some predictability into how some issues would resolve- assuming, of course, that these clauses are effective in whatever jurisdiction (though, under general freedom of contract principles, I think I am safe to say that most jurisdictions would support a contract term that sets the law/jurisdictional issue).

    So, what to make of all of this (at least as to the issues I have described, if not as to my being correct about them)? Here's a punt: Again, the issues are complicated, there is no "one-size fits all" solution and you can't really guess how all of the permutations could play out when you start analyzing different fact under the law of different jurisdictions. The best you can do is make some educated guesses and try to prepare yourself to meet your specific needs.

    Fun, right!?!?!
    Anthony Parsons likes this.

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