Somewhat OT: copyright question

[JARiley at dstsystems.com]

thanks for reminding us all that we are not lawyers!  this is a place for 
free expression and if anyone reading the copyright responses thought 
otherwise and thereafter used the information to proceed forward in their 
online posting management of his/her site without consulting with a REAL 
lawyer, then that is because of his/her own stupidity.

this group can get real annoying sometimes with all of the know-it-all ego 
personalities.  so, chill out!

later taters!


James Riley



Jonathan Hutchins <hutchins at tarcanfel.org> 
Sent by: kclug-bounces at kclug.org
06/14/2005 10:32 PM

To
kclug at kclug.org
cc

Subject
Re: Somewhat OT: copyright question






Ok, guys, throwing case citations around is not lawyering, and has nothing 
to 
do with rendering a legal opinion such as whether you might be liable for 
something.  All you've done is prove that none of you are lawyers.

The law is a living, evolving thing.  Properly done, an argument such as 
this 
one would consist of a series of citations illustrating various 
conclusions. 
A well made argument would include citations which appeared to find 
against 
the point, with explanation of how they fail to be conclusive.

The law regarding copyright material posted on BBSs, when shutch dial-up 
beasts were common, evolved from ignorance and obscurity to lawsuit 
happiness, to reasonable and civil regulation. (Sound familiar?) 

Initially, there were rogue findings against the operators, but it was 
eventually established, in large part through suits against AOL, that the 
Operators were not labile, provided they a) took reasonable precautions 
such 
as requiring a click-through notice not to post, b) removed offending 
material when notified, and usually c) provided information assisting the 
persecution - er, prosecution - of the actual "offender", the person who 
posted the material.

Post internet cases have generally supported this trend, although things 
are 
still falling out.  The carrier or host is not generally liable, 
especially 
if he co-operates with the prosecution of the original poster.

There is an even older body of law that has yet to really be applied to 
digital work, which distinguishes between the imaginary harm of a "lost 
sale" 
caused by a copy being provided for free, and a competitive sale made by 
someone of a copy obtained through means outside the normal distribution 
channels.  The latter is the only ligitimate instance where real damage 
can 
be claimed, except in extremely unusual circumstances.  Unfortunately, a 
lot 
of people are going to either settle out of court or loose before the 
courts 
recall this basic principle.


As a former BBS operator who's done this, I suggest that you do the 
following 
if you're concerned that you may be placed in danger of being accused of 
harboring pirated property:

1) Create a policy that states a) how you will ensure that you have 
informed 
your clients or customers that you do not allow copyright infringement, b) 

what you will do with alleged infringing material) what action you will 
take 
against anyone posting such material, and d) what degree of cooperation 
you 
will provide the claimant/prosecutors. 
 
2) Hire/retain/PAY a real lawyer to review that policy, and to provide you 

with his written opinion of whether it's adequate.  Get an actual IP 
lawyer 
to do this - there are several good ones in town, besides some of the 
biggest 
names in the trade having offices here.  I believe Shook, Hardy, and Bacon 
do 
this.

If you decide you want to make a stand for what's right, rather than just 
expediently CYA, decide how you'll handle it and place the lawyer on 
retainer.

One of the tricksy bits here is what standard you require for a claim of 
infringement.  It's safest to take things down the minute you are informed 
of 
a claim, but you can end up looking pretty stupid if it turns out the 
materiel is being posted by the actual copyright holder. 
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