Post Ownership

This is why I got a solicitor to do this for me when I started the site... just got it right from the start, so all registered members check the box to accept the legal terms and conditions, stating they have agreed to have read and accept them. I also discovered from the solicitor, that I had to enforce 18+ on my site, as its subject is medical based, and COPPA has no application to such sites. So anyone I know or suspect is under the age of 18, I MUST ban and restrict their account until the age of 18. Damn laws...

I think anyone who doesn't have a local lawyer look over legal policies nowadays for a forum is cutting themselves short. All of a few hundred $$$ at the least to get a legal yes or no on what you have in your policy, at the least, pointing you in the right direction with things, if you can't afford more for them to write your policy.
 
For us, we don't make users agree that we "own" the posts, but the user *does* grant us publishing rights to content they create on our site (posts, etc).

From our registration agreement...
By agreeing to these rules, you grant Digital Point Forums non-exclusive rights to publish content (posts, visitor messages, etc.) you create here.

It's like a book author who publishes a book. They can't later demand the publisher somehow revoke all the books that were sold/created... but at the same time, the author still is the legal owner of the content itself... they just granted publishing rights, not ownership rights.
 
For us, we don't make users agree that we "own" the posts, but the user *does* grant us publishing rights to content they create on our site (posts, etc).

From our registration agreement...


It's like a book author who publishes a book. They can't later demand the publisher somehow revoke all the books that were sold/created... but at the same time, the author still is the legal owner of the content itself... they just granted publishing rights, not ownership rights.

Interesting solution....

By agreeing to these rules, you grant Digital Point Forums non-exclusive rights to publish content (posts, visitor messages, etc.) you create here.

I guess my "devil's advocate" question would be, is the right irrevocable? What happens if the person later disclaims agreement to the rules, and in tandem claims copyright remedies? Or, going deeper, is there a "severability" or "integration" clause to the rules (i.e., if part of the rules are deemed invalid, does the entire agreement fail- and then void the rights to publish?).

All really academic- I doubt there would be any serious issues that arise out of such rules. Just thinking (or writing) out loud.
 
Interesting solution....

I guess my "devil's advocate" question would be, is the right irrevocable? What happens if the person later disclaims agreement to the rules, and in tandem claims copyright remedies? Or, going deeper, is there a "severability" or "integration" clause to the rules (i.e., if part of the rules are deemed invalid, does the entire agreement fail- and then void the rights to publish?).

All really academic- I doubt there would be any serious issues that arise out of such rules. Just thinking (or writing) out loud.
If the person later tried to say they didn't agree to the rules, then we would see it out in court if they really wanted to go that route. We could prove in court that it's actually impossible for someone to register for our site without agreeing to the rules.

We are somewhat unique in that we *would* see it out legally if a user wanted to go that route simply to set a precedent either way.

We outline all our policies clearly so everyone knows exactly what they are. http://forums.digitalpoint.com/faq.php?faq=policies
 
Here's the distinction or issue: Does agreeing to the rules create an enforceable contract to grant the license or is it just a "naked promise" (meaning the agreement is without consideration, and therefore unenforceable under contract law theory). I could see the argument being made on both sides and how it would resolve is unclear to me. But, as written, it appears that they are undertaking an action unilaterally (posting the content) without a promise or consideration on your side, which would tend to make me think that this is a contract that fails for want of consideration.

A way to address that would be to state that clearly: "In exchange for our publishing your post, you agree that...." Now, this is not to say that this is the preferred or ideal solution, because then you have undertaken a promise to post. However, I don't think this would be especially problematic if you stated that you reserve the right to reject, edit, and remove any posts in your sole discretion. Having such a clause might be theoretically problematic from a contract point of view, but I tend to think that once something is posted, then many of the problematic issues disappear (i.e., the concrete action of posting takes some of the uncertainty out of the analysis).

Even more problematic though, is the coupling with the DMCA notice in your rules. What happens if a poster asserts the DCMA procedures and asks to have content removed? I could see arguing that the DMCA notice means that you hold out that a poster could ask to have his own ostensibly copyright protected work removed. I am not saying this means you lose, just that it injects uncertainty into the analysis (and you might lose).

Further uncertainty reigns because of a lack of choice of law/choice of jurisdiction clause (something like, "The terms of this agreement are governed by the laws of the State of MadeUp-Landia and the users of this site agree that any disputes will be adjudicated in the courts of MadeUp-Landia"). Absent this, someone could claim that their home jurisdiction (where they agreed to the terms) rule. Scary permutations ensue.

Maybe all of this is covered somewhere else in your TOS. I just didn't see it, so maybe I am missing facts.

Again, just playing Devil's Advocate and exercising the possibilities for the sake of discussion. Of course, none of this is legal advice, just me spit balling.
 
Oh, yeah, and practical considerations rule. Most posts and posters would not have enough "skin in the game" to fight a real mounted challenge to your position. If you wanted to outspend, you likely could. Unless Bill Gates was posting under a pseudonym.
 
I did see this, though:

A copyright owner cannot file a DMCA takedown notice if the infringing material was posted by them (when you register for this site, you grant us non-exclusive rights to publish content you post here).

Interesting issue- but, I think it begs the question. One could argue that these terms make it clear that, by contract, DMCA does not apply to original posters. However, this would still resolve on the contract issue, reverting back to the questions of whether there was consideration for the grant of the license. I can see the argument, just not sure, without words of consideration as described in my post up above, that a valid contract exists. If not, then I am not sure the statement is enough to defeat straightforward copyright analysis. Though, as I said earlier, without a copyright registration of a post (which I would bet has NEVER happened) what damages would follow from any alleged infringement? Probably none.

Okay, enough of the spit balling for the moment. I should do some real work.
 
Yeah... who knows if it would or wouldn't hold up in court. It certainly would be interesting to find out.

As far as someone issuing a DMCA to take down something *they* posted, we don't allow users to file a DMCA complaint against themselves (ultimately the DMCA complaint is against the poster)...
DMCA Policy Notes said:
A copyright owner cannot file a DMCA takedown notice if the infringing material was posted by them (when you register for this site, you grant us non-exclusive rights to publish content you post here).

Also, someone can file a DMCA for *anything*, you aren't legally obligated to remove it simply because they filed a DMCA... Rather you are just taking on some liability of copyright infringement of the offending content if you do not remove whatever it is. There's also Section 230 of the Communications Decency Act that more or less states the users are legally responsible for things like copyright infringement within posts they make (not the site owner).

In the end, we get people just about daily demanding removal of something they don't like (other user's post who wrote about a bad experience with their company for example is pretty common). We've probably been threatened with 400-500 lawsuits over the years for things like defamation because we didn't delete a post where a user said something they didn't like.

A recent one was pretty comical... a law firm wrote us a letter letting us know their client was prepared to accept the sum of $10,000 for damages that a post (which BTW we didn't even know about before the letter) did to their image, in addition to removal of the post (which we did not remove btw).

To date, the actual number of lawsuits filed: 0
 
Yeah, there is a cottage industry of sucky lawyers who hope to make a dime (or a few dimes) on coercing/threatening suits. California law has been famously hospitable to a lot of suits like this, but recently (I can't put my finger on it now, I will see if I can find it) a lawyer and his firm got slapped pretty hard for trying to essentially extort settlements. IIRC, he got hit with massive fines for this.

As for the DMCA issue, not sure if you saw my follow up post, I did see your language about this. In a theoretical way, it could be problematic. But, like you and I both essentially said, the practical considerations rule and if I were to take a guess, I would say that your exposure is nil/none. Most of what I wrote dealt with theoretical arguments. Unless there was big money at stake, and deep pockets on the complainers side, you should probably worry more about a meteor hitting you twice on the same day.
 
Does agreeing to the rules create an enforceable contract to grant the license or is it just a "naked promise" (meaning the agreement is without consideration, and therefore unenforceable under contract law theory).
The beauty of Australian law, is that its not based on precedence... and law here says contracts are legal whether signed in person or digitally, they become an electronic signature of acknowledgement.

In the end, we get people just about daily demanding removal of something they don't like (other user's post who wrote about a bad experience with their company for example is pretty common). We've probably been threatened with 400-500 lawsuits over the years for things like defamation because we didn't delete a post where a user said something they didn't like.
Yer, I've had around 10 in the last 6 years... a few going as far as legal notices and such for scare tactics, but followed up with zip.

With SOPA in the US... having copyright agreement as part of registration, can only bolster my sites stance for copyright ownership due to legal acceptances made for use of the site, when someone decides to try that avenue now present.
 
Yeah, it got me thinking how interesting a combination of the DMCA with Section 230 could be... The copyright owner posts something they own the copyright to. Then they later file a DMCA takedown against themselves claiming that they want it removed because THEY violated their own copyright by posting it... lol

Then if you didn't remove it (since it was the copyright owner who posted it), you could defer to Section 230 in court and then the copyright owner would have to sue themselves for violating their own copyright.

If nothing else, it would be an entertaining case to follow. :)
 
The beauty of Australian law, is that its not based on precedence... and law here says contracts are legal whether signed in person or digitally, they become an electronic signature of acknowledgement.

First, the caveat: I know nothing about Australian law. That said, the issue of "consideration" is a fairly universal contract law concept that has nothing to do with common law or civil law distinctions and do not turn on what formality is used to agree to something. The idea of consideration means there has to be a mutual undertaking (either performance of something of value or a promise to perform something that has value). Just a hypothetical, if I say to you, I will give you a million dollars, you can't sue to enforce that promise. It's not a contract, its a promise. If I say, I will give you a million dollars if you paint my house and you agree to paint my house, then you can sue on it. The only formalities required are having a contract for more than $500 or to be performed in greater than a year, is to have a writing (this is called "Statute of Frauds"- again, I am not sure about Australian law, but the general principles seem to be universal, and as much of US law and, presumably Australian law, grew out of UK legal traditions, I would guess there is an analog in AU. The principle is that a writing is required to deal with issues of proof. An oral contract is hard to prove, but with a writing, the court has something to look at). It matters not whether this writing is in paper copy, online, etc. (There is a whole separate issue with "contracts of adhesion" and what some have called the "tyranny of forms"...a discussion that would take longer to get to the bottom of, but still might be somewhat relevant to the discussion in this thread).


With SOPA in the US... having copyright agreement as part of registration, can only bolster my sites stance for copyright ownership due to legal acceptances made for use of the site, when someone decides to try that avenue now present.

SOPA has not passed yet, but a vote should be soon. Here is an brief article with some links:

http://volokh.com/2011/12/19/dont-break-the-internet-contd/
 
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.

This most likely would not hold up in a United States court, and is why you'll find that most sites based in the U.S. require that you grant them a non-exclusive license for content you post and don't try to claim ownership. According to U.S. copyright law (I'll try and find a link to the actual law when I get home), the only valid way to execute a transfer of copyright ownership, other than by operation of law, is by an instrument of conveyance, or a note or memorandum of the transfer, in writing and signed by the owner of the rights conveyed (or their authorized agent). In most cases, a certificate is issued too as evidence of this execution (which is issued by someone who can administer oaths in the U.S.), which can be filed with the U.S. Copyright Office (for a fee, of course).
 
This most likely would not hold up in a United States court, and is why you'll find that most sites based in the U.S. require that you grant them a non-exclusive license for content you post and don't try to claim ownership. According to U.S. copyright law (I'll try and find a link to the actual law when I get home), the only valid way to execute a transfer of copyright ownership, other than by operation of law, is by an instrument of conveyance, or a note or memorandum of the transfer, in writing and signed by the owner of the rights conveyed (or their authorized agent). In most cases, a certificate is issued too as evidence of this execution (which is issued by someone who can administer oaths in the U.S.), which can be filed with the U.S. Copyright Office (for a fee, of course).

You are right about the formalities, under 17 U.S.C. § 204. Again, I am not claiming any particular knowledge about this area of law. However, the requirement would seem to be an effort to show proof of transfer. I am not sure if it is the case that it would be impossible to effect a valid transfer, though, with a correctly worded agreement (even if the agreement was executed as part of a website's TOS). If the requirements of proof are met, I am not sure you could not make a transfer this way. It is a really interesting question. In a VERY cursory search on this issue, this case, Zyware Inc. v. Middlegate Inc., 44 U.S.P.Q.2D (BNA) 1842 , suggests that the issues really turn on these questions of proof ("As the Konigsberg court itself noted -- as have courts in this Circuit -- section 204 "'enhances predictability and certainty of ownership -- "Congress's paramount goal" when it revised the [Copyright] Act in 1976.'" Id. at 357; accord Playboy Enters. v. Dumas, 53 F.3d 549, 558-59 (2d Cir. 1995). Predictability and certainty of ownership are not furthered if the Court must determine in each case whether a copyright transfer was adequately negotiated.") (Though, I think this case is not as clear as it could be on the distinctions between work for hire agreements and transfer of copyright...this may be because the analysis would be the same as to writing requirement, but it may be that this is an important distinction). Now, if you can have a valid contract via terms of a website, I don't see why you could not have a valid transfer- the "writing requirement" would certainly be met, in the same way that TOS and online or electronic EULA can meet the requirement of being a "writing."

These are, again, just theoretical spitballs- for practical purposes, I doubt that a transfer of copyright would be of benefit to site owners and may tend to drive people away from the site. I am thinking it may be possible to assign copyrights this way. Just not sure that it is necessary or that sites would care to do so. However, I do see where a transfer might be part of a business model- maybe a site that agrees to pay people for content posted in return for transfer of the copyrights. Though, in such a case, it might make sense to frame the transfer in context of a "work for hire" agreement vice a transfer of copyright. (The only time I could see this being problematic would be if someone posted a work that they had either created long ago, or was simultaneously posted in different places; while I have seen cases that say that the "work for hire" agreement can be entered into after creation of the work- a surprise to me- it would seem that in this situation, a transfer is more appropriate).

Interesting issues.
 
Looking around some more, I have found some references that support that an agreement in electronic format would suffice to transfer copyright interests. The statutory basis is 15 USC § 7001. As always, the only way you could know would be to have a court weigh in on the issue, which, of course means there is a dispute in the first place. But, theoretically, I am confident that a transfer could be effected by an online agreement, if drafted correctly.

http://www.law.cornell.edu/uscode/15/7001.html
 
We spent a lot of time with our lawyer on this issue when drafting our terms of service, as well, even though we had no intention on trying to claim ownership of other's works. The conclusion we came to was that a click-through ToS would not constitute a valid transfer. It's hard to prove. You also cannot transfer ownership of property that does not (yet) exist (which is essentially what copyright is). Non-exclusive grants on the other hand need not be in writing, it can simply be implied.

But let's say you came up with an online agreement that allowed you to transfer ownership. In the U.S. you would need to specify the actual works involved, which again, a click-through ToS probably would not satisfy. You'd also want to file with the U.S. Copyright Office (which would require a notarized form) to prove the transfer took place, should you later get sued.

It's extremely hard for the owner to lose copyright in the U.S.
 
I know a bit off topic but there are laws and there are laws and we can sink ourselves deeply into the high fluetent words of lawyer'ing, and al the jokes about Lawyers, but I will tell you how I beat Microsoft for $10.

Back in the days of 56k modems, MS released an update version of IE, before the days of it being integrated in Windows. You could download it which would take hours and hours or you could pay the $8 postage of a cd of the update which I chose to do. The CD arrived and I installed it but found my MS Office Toolbar disappeared some times when viewing IE in full screen.

I phoned MS Support and they were going to charge me $40 to listen and try to fix my problem and the $40 would be refunded if it was found to be an IE bug/problem. I said NO as it WAS an IE problem.

The problem for MS was that when I received the CD, the invoice with it said IE $8, Freight $0.00...an error also made by MS as I then took them to the small claims tribunal citing that I purchased a product that was faulty. This was when I was in New Zealand and NZ has very strict consumer laws like here in Australia. I had the choice of a full refund or a replacement "Non Faulty" product, which is what I wanted.

The day came for my day in court and as no lawyers are allowed to be used in the small claims tribunal I represented myself. MS had a huge load of high powered people there, all against little ole lonely me and my laptop. i believe that MS even had flown some high powered reps out from the US for the case.

The end result was I won and MS had 28 days to provide me with a full working copy of IE free from any bugs whatsoever...naturally they couldn't do that...so 28 days later we went back to court and just before entering MS made me an offer, with a "Shut Up" clause that I couldn't refuse. I will however say I enjoyed many many hours of fun playing every MS game and using some great MS products for a long time after that...all for just $10 simply because someone made a simple error on a piece of paper and which started by a person on the phone not allowing me my rights.

So you can get lawyers to jump through hoops, pay them zillions of dollars yet there may still be some simple little thing that can catch you out :)

In the words of Dibs...Always with the intent to act, I am
Ian
 
Hmm, again, all theoretical, but, I think you could, with some skill make an agreement that would work to transfer copyright via an electronic writing.


You also cannot transfer ownership of property that does not (yet) exist (which is essentially what copyright is).
In most cases, the issue would likely resolve on the situation being viewed as a work for hire. But, I suspect that it may in fact be possible to transfer future rights. My brief look at some of the cases and issues suggests that you could have an "expectancy" interest in the future work, which essentially means that if the work is never created, then the site has no right to recover. Once created though, the assignment would "spring into existence," and be valid under this theory. The cases I looked at mainly dealt with right of renewal in copyrights and their assignments, but it seems like a plausible theory. I did see one case, though, that expressly rejected this idea. It would take way too much time to do a full search and to research the case law to see what the majority/minority take on this issue is, but it looks at least plausible as a theory.

However, I don't think you would even need to go there. Don't look at the TOS as a one time event purporting that once the member agrees, all future copyright-able submissions are transferred to site. I would think a way to address this would be to say something like, "Member agrees that by hitting "Submit Thread" button, the work contained in that post and any copyright is transferred and assigned to Site in exchange for Site's publication of the work." Essentially, it would make the submission of the already created "work" (created in the editor) a term of acceptance. And there would be no doubt that the work is in fact in existence before the acceptance. It would make each click of the submit button evidence of the agreement (though, I would think that if you really wanted to make this as enforceable as possible, you would take more care in drafting and probably make the user take an affirmative step like checking a box to signify agreement with the TOS overall, at a minimum). Seems, from a theoretical point of view, valid terms of contract and under 17 U.S.C. § 204 and 15 USC § 7001 a sufficient writing to create a transfer.


In the U.S. you would need to specify the actual works involved, which again, a click-through ToS probably would not satisfy.

The above solution takes care of this, too- the scope is what the member submits. Seems that this covers any problems with "proof" of scope.

Non-exclusive grants on the other hand need not be in writing, it can simply be implied
This is quite true and probably why this solution is the one mostly taken. I am just thinking through what is possible and would be at least arguable a valid and effective way to accomplish a transfer IF someone wanted to.

You'd also want to file with the U.S. Copyright Office (which would require a notarized form) to prove the transfer took place, should you later get sued.
This goes into recordation of the transfer. This would not be required, but even if someone wanted to do this (which I would only imagine would arise if the "work" had some particular value), it would not be terribly onerous to do.

A separate issue that might bear on this whole question (and one that I have not looked at all really) would be the impact of the site or the forums on the site being construed as a "collective work." Take a look at this:

"§ 201. Ownership of copyright

(a) Initial Ownership. — Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.
(b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
(c) Contributions to Collective Works. — Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series."

Anyway, like I said, it is not necessarily the case that this is the "best solution" or one that would be recommended. The non-exclusive license approach seems easier and likely appropriate for most folks. But, if you wanted a site that did transfer copyright on submission, my instinct is that I think it can be done.
 
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
What exactly are legal rights in your rules and policies? Copyrights to material published on your forum?
 
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