Somewhat OT: copyright question

[Jonathan Hutchins]

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.