Somewhat OT: copyright question
JARiley at dstsystems.com
JARiley at dstsystems.com
Wed Jun 15 10:16:25 CDT 2005
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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