Forum Moderators: not2easy
You said you "never claimed to have owned whatever people write"--did you say anything about copyright? About your right to delete (or NOT to delete) content?
You could argue that if you didn't explicitly say that you would delete a member's posts at their request, that you aren't obliged to do so, but it doesn't sound like a clearcut case.
If I were you, I'd delete the posts and walk away. You said there would be "many broken topics," but think about that a minute. How many of those threads are active, or even being read? The impact of removing his posts may not be as great as you think, since id your board is at all typical, any thread that's more than a week old has vanished into the past.
And then work on more comprehensive stated policies so that you've got yourself covered in the future.
He does own the copyright to whatever he posted however the stock AUP's for registering on forum will have some language in it similar to what purplecape posted. I'd also venture to guess that simply hitting the submit button constitutes granting you a "soft license" to display whatever he submitted.
I've read a few articles concerning this, there was a quite lengthy one posted on phpbb.com. The consensus of all of them was the poster doesn't have legal leg to stnd on and I haven't come across one yet that mentioned anyone being successful in a suit where sued a forum. If you're really concerned check with a lawyer.
I tend to disagree purplecape's suggestion of deleting them. Nothing worse than looking for information only to find the critical piece or half of it is missing.
I guess it depends. How critically important those old posts are to your site vs. the nuisance factor....
No he doesn't. Not so much as a word.
- Upon becoming a member, you agree that any information that you have entered will be stored in a database, and that SITE may use that information for any purpose that it deems appropriate. Further more any information that you submit to SITE,you hereby grant SITE a worldwide,non-exclusive,royalty-free,sub-licensable and transferable license to use,reproduce,distribute,prepare derivative works of,display and perform the members submitted information in connection with the SITE website and SITE (and its successor's) business, including without limitation for promoting and redistributing part or all of the SITE website (and derivative works thereof) in any website formats and through any website channels.
- Upon becoming a member, and by voluntarily uploading text and images to this website,you hereby grant SITE a fully paid up,non-exclusive,non-revocable,royalty-free license and permission to publish said text and images in this or any other venue.
- By becoming a member, you agree to release and discharge the owners, providers,creators, members,staff and webhost for this site from any and all legal actions that may arise.
In particular, the word "non-revocable" directly applies to what he wants to do!
But you don't need to worry, because *you* aren't the one that caused distribution, he was. He posted on your forum with the expectation that it would be distributed. That is what is known as an "implied license". You can use that post in any way that would be reasonably expected by that user when they posted. In other words, you can't go out and publish a book about what they said, because that certainly would not be within their normal expectations.
The question about advertising is an interesting one. The threat certainly would not stop me, but I suppose if he got a really good lawyer, and you have a really bad one, there is a slim chance that you might lose. You could always set up a script to only show the ads on pages that he hasn't posted on.
The most interesting bit for you should be the "non-revocable" part of the licence he grants you. This means he can pull out of the service (or you may throw him out), but he can not revoke the licence he granted to you for the posts he voluntarily made.
I'd just tell him that he has no case. If he takes this to court, he will lose.
* By the way, your ToS are quite all-encompassing. They basically allow you to do anything with the user contributed content; with the recent case of Adobe Photoshop Express ToS, users were not so friendly and enforced a change of the respective terms on the Adobe site.
You can call it copyright, but once he posts it on your site - it is 100% your to use however you wish. Unless you have some other agreement to the contrary. No US court has ever found in favor of a poster on this issue.
> No TOS or other thing that you post can change that.
TOS is almost 100% unenforceable in issues like this. They are next to meaningless outside of small claims court. There has yet to be a precedent set. Some feel they would fall under soft license agreements, and yet others think the courts would reject that view because it is a not a product and it is free to the public. eg: until some case comes up - it is still a crap shoot.
> you can't go out and publish a book about what they said, because
> that certainly would not be within their normal expectations.
Yes you can. Publishing is publishing. Once you publish an article, it is 100% up to the website to use it how they see fit.
> but I suppose if he got a really good lawyer, and you have a really bad one
As we say, there is the bottom line. He with the best lawyer, always wins.
You can call it copyright, but once he posts it on your site - it is 100% your to use however you wish. Unless you have some other agreement to the contrary.
Brett, I'm a book author, publisher in the real world, and I'm oddly enough considering having about 1000 of my posts removed from a group that removed my access. I'm going to do that for a bunch of reasons, but...here's the deal.
The TRANSFER of copyright cannot be implicit, EVER, and must be done explicitly and in writing by law. In the absence of transfer of copyright, the site owner could claim implicit licensing, but unless it's an explict perpetual licence in the TOS, and the court affirms it (and courts often don't), it's a nonstarter.
No US court has ever found in favor of a poster on this issue.
Doesn't matter. DMCA, over and over until the site disappears, is pulled upstream, whatever. It's not a court issue, and virtually zero copyright cases re; the net go to court. If I want my posts to go away, they'll go away one way or the other. Lots of DMCA plugs to pull out of their walls.
> No TOS or other thing that you post can change that.
> you can't go out and publish a book about what they said, because
> that certainly would not be within their normal expectations.Yes you can. Publishing is publishing. Once you publish an article, it is 100% up to the website to use it how they see fit.
Actually you MIGHT be able to, but not because of Brett's explanation. It has to do with the copyright to the COLLECTION, versus the copyright for each individual message. Here it gets complex, but Brett, you are flat wrong on this, and it's a damaging wrong,because it gives licence to steal.
As we say, there is the bottom line. He with the best lawyer, always wins.
DMCA changes the equation. It makes taking at least moderate action possible for people with shallow pockets like most of us.
You can call it copyright, but once he posts it on your site - it is 100% your to use however you wish.
From my understanding that is only half correct, you can continue to use it in the original context as a post. You couldn't use it partially or otherwise outside of the scope of the original work such as if you wanted to publish it in a book.
The second and individual creates something that is original they have the copyright to it whether they want it or not except for works for hire and a few other exceptions. The copyright laws in the U.S. heavily lean towards protecting the interests of the writer. The copyright has to be legally transferred to another entity.
Again , I'm not a lawyer and this is just my understanding as to what the law is but that was the consensus of just about everything I've read on the matter.
DMCA changes the equation. It makes taking at least moderate action possible for people with shallow pockets like most of us.
I'd be careful about using that unless you know the law is on your side, it's a double edged sword if you try and use it in manner other than what it was intended for. If you end up in court you could end up on the wrong side of a judgment.
Member comments are owned by the poster.
Besides, if I remember my copyright laws, unless you agree to give up your copyright by agreeing to the TOS, you have complete ownership of anything you create the minute the creation is completed.
I was only a programmer and photographer, what do I know about copyright? ;)
However, the forum owner more than likely owns the unique compilation so I'm not sure who wins if the creator of the post wants it removed from the compilation, considering the poster put it there voluntarily in the first place.
Wouldn't be worth the price paid to ask a lawyer IMO.
[edited by: incrediBILL at 5:42 am (utc) on May 11, 2008]
considering the poster put it there voluntarily in the first place.
Besides, if I remember my copyright laws, unless you agree to give up your copyright by agreeing to the TOS, you have complete ownership of anything you create the minute the creation is completed.
I read an interesting law opinion from a law professor about public domain works and "giving" up copyrights which I can't seem to find at the moment. There is no way to do this legally without actually going through the process, it was his opinion unless its done legally the copyright remains with the author. Simply putting "public domain" on something or saying I don't want the copyright to this material doesn't really release the ownership of the copyright.
Which has nothing to do with this discussion. Your tos is your tos. As I said, that has little to do with reality in a court in the USA. The majority of all this stuff is untested with no precendents having been set (other than soft licenses). I think some are confusing the difference between civil liability, copyright, and usage. The best thing you can do is CYA and run/seek the warm fuzzy shelter under cover of dmca safe harbor. Usage rights and copy right are a different matter. Then you have data retention laws - lets not forget Europes data privacy laws. Having spend more money on this than I embarassingly care to admit, the only valid statement the legal folks would tell me is that it is a cluster f*. So cya...
Interestingly, I was once told that any content/images etc., created in an employers premises, or using their equipment, becomes their property. I wonder how this applies to content created 'on' someone else's forum, with 'your' own equipment?
What does it take to make a contract (legally)? Doesn't it take an offer and an acceptance? In a forum setting, isn't the TOS an offer that a user has to accept and agree to in order to become a member and post agreement enough to make it a contract between the parties?
So if someone agrees to and accepts the TOS and becomes a member on January 1st, making it an agreement between the parties, and then posts for six months, and decides to back out of that agreement in June, does it make their "agreement" invalid for the prior six months, or just beginning on the date in June that they backed out?
That would be like getting married in 1990, then getting a divorce in 1999 and making the divorce retroactive back to 1990.
