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.  

_______________________________________________

Kclug mailing list

Kclug@kclug.org

http://kclug.org/mailman/listinfo/kclug

_______________________________________________
Kclug mailing list
Kclug@kclug.org
http://kclug.org/mailman/listinfo/kclug