Hello,
Does anyone know if you are running a forum and someone posts copyrighted material if you can be held responsible for that content? Thanks, Josh
On Saturday 04 June 2005 12:50 pm, Josh Charles wrote:
Does anyone know if you are running a forum and someone posts copyrighted material if you can be held responsible for that content?
I believe current practice is that if notified, you must delete the materiel if possible. Other than that, you're not liable. (IANL, consult one or go to jail.)
Also IANAL.
Short answer: Only if: a) you refuse to remove it when asked and/or, b) knowingly encouraged it and/or, c) knowingly allowed it to happen and/or, d) are the one who posted it.
Longer answer:
I've been following events along this topic for years and so have some knowledge/understanding of the issues. It is almost impossible to prevent someone from posting copyrighted material. The only way to prevent it is to not allow anyone to post anything. The legal precedents for posted copyrighted material is that the host is required to remove the material when he/she/they become aware of it. Save yourself some headaches and add to your usage guidelines that any copyrighted material posted by anyone other than the owner of the copyright will be removed and that repeat offenders will be banned. This serves to PYA from knowingly encouraging copyright offences. Secondly, if you know of any copyrighted material posted on a forum you run, delete it. Don't wait for the copyright owner to contact you. Generally, your IP provider or possibly you and the IP provider will get a takedown letter from some lawyer acting on behalf of the copyright owner demanding you remove the content. Also, the reprinting of small sections of copyright material are generally protected from prosecution under "fair use" rules. However, if you are reproducing copyrighted material on a site that might generate income you may fall outside that "fair use" category. Whenever in doubt get written permission from the copyright holder (not necesarily the same as the author) BEFORE posting copyrighted material. If the copyright holder cannot be found the safest approach is to err on the side of caution and not post it. Lastly, you usage policy should also state that anything they post they are giving you explicit copyright or free perpetual usage rights to such material, so that they can't come back at some later time and blackmail you for continued use of content.
Brian D.
--- Jonathan Hutchins hutchins@tarcanfel.org wrote:
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This case established two things. First, courts can find against a defendant in an intellectual property dispute whether or not the defendant is aware of such activity. Second, intellectual property protection extends to all copies of a given work regardless of how they are made or the media on which they are presented.
good read: http://www.worldofspectrum.org/EmuFAQ2000/AppendixB.htm
Bunch of court case stuff.
Please tell us which case of the hundreds in this FAQ is the one you are referring to. It's hard to argue the validity of your argument that unintentional copyright infringement is prosecutable without knowing the basis of your argument. While it is true that you can unintentionally infringe on copyright, there is also a "safe harbor" provision in the US Copyright act
that holds people harmless under certain conditions.
Please refer to the following site for information about why and how content providers are or are not liable for copyright infringement.
http://www.libertolaw.com/2-99.html
And yes this person is a lawyer as opposed to the EmuFAQ writer. Although the EmuFAQ writer makes a valid point that one must be careful in creating code, to use a clean-room setting and be able to prove it. Something very important to any work in FOSS. There how's that for bringing the subject on-topic?
Brian D.
--- djgoku wrote:
http://www.worldofspectrum.org/EmuFAQ2000/AppendixB.htm
Bunch of court case stuff.
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On 6/12/05, Jack quiet_celt@yahoo.com wrote:
Please tell us which case of the hundreds in this FAQ is the one you are referring to.
Search Function is your friend. =)
Playboy Enterprises, Inc. v. George Frena. 839 F.Supp. 1552 (M.D. Fla., 1993).
George Frena, the sysop of the Techs Warehouse BBS, had 170 digitized images from both Playboy and Playgirl magazine posted to his computerized bulletin board system. The two magazines were commercial adult publications protected under copyright law. Playboy Enterprises, owner and publisher of both magazines, sued Frena for copyright infringement. The Federal District Court acknowledged Frena's claims that the uploading had been done by his users without his approval; however, it still found him liable for intellectual property violation. It ruled that Frena's users had illegaly copied the pictures by digitizing them; furthermore, Frena had infringed on exclusive vendor distribution rights by making the pictures available for download by his users. It also found Frena in violation of trademark law, since the infringing material contained registered trademarks belonging to Playboy Enterprises (the Playboy and Playgirl logos).
This case established two things. First, courts can find against a defendant in an intellectual property dispute whether or not the defendant is aware of such activity. Second, intellectual property protection extends to all copies of a given work regardless of how they are made or the media on which they are presented.
all information taken from: http://www.worldofspectrum.org/EmuFAQ2000/AppendixB.htm
--- djgoku djgoku@gmail.com wrote:
Yes it is, but in order to search for something, one must know "what" one is searching for.
Playboy Enterprises, Inc. v. George Frena. 839 F.Supp. 1552 (M.D. Fla., 1993).
Ah, ok. Yes, it is not a precedent decision, and has not been used since, because of it's controversy, and additionally predates the DMCA provision that protects ISPs and content providers from this highly questionable practice. If you research this case, you will find that when Mr. Felos was made aware of the issue he immediately took down the offending files and monitored more closely afterwards (although I don't know how one can really do that. If I were to digitize a Playboy picture and strip out any Playboy information how would an average person know it was a Playboy picture. Were I to copy a a chapter out of Riker's History of New Harlem and publish it, who would have the breadth of knowledge to know?
So now 12 years later we need not worry about someone doing this to us as there is now a DMCA "Safe Harbor" loophole to protect us, should some user post copyright material to our BBS/website without our knowledge. Of course should Playboy come after you for such an offense I would strongly recommend you retain an actual attorney to defend you. ;')
Brian D.
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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.
Sorry, just lurking in this discussion, and I know this was just a typo (since "liable" is spelled correctly plenty of times in the post), but I thought its placement in the post was particularly funny:
On 6/14/05, Jonathan Hutchins hutchins@tarcanfel.org wrote: <snip>
.... established, in large part through suits against AOL, that the
Operators were not labile, provided they ...
<snip>
.... since I knew quite a few BBS operators "back in the day" and all of them most certainly WERE "labile"http://www.cogsci.princeton.edu/cgi-bin/webwn2.1?s=labile....
;^)
JOE
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@tarcanfel.org Sent by: kclug-bounces@kclug.org 06/14/2005 10:32 PM
To kclug@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. _______________________________________________ Kclug mailing list Kclug@kclug.org http://kclug.org/mailman/listinfo/kclug
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