Content theft - need some advice

[Darigaz]

I am going to lay out a scenario that is taking place in the hope that people can give me some insight.

A partner and I founded our forum 8 years ago on an older version of vBulletin. My partner had ftp access and gave ftp to one of our web masters. Said web master gave ftp to one of our community admins who said he wanted to do some clean up on the server (he made a mistake by not consulting with my partner and i), but instead the community member just stole the content and relocated to a new domain.

Another community member donated our vb4 license, but happens to be friends with the offending community member, and therefore switched the license over to the offending website. We have no problems buying a new license, thats not the issue.

The issue is...
1- They are using our custom design which we had designed for us. I can have the designer vouch for me as the original purchaser of the design
2- They are using our community name
3- They are using a duplicate of our website with all of our posts / threads that have cumulated over 8 years. Our content is our primary concern here.

My partner and I are the original owners of this content and we founded the community. The offending members were previously in the community playing admin roles and are actively attempting to steal members from our boards along with our content. We do not own an LLC under the community name, but we have the following proof of our ownership...
1-webarchive that shows we founded the community in 2004 and we can show dated posts and other archives that demonstrate we are the original founders/owners of the community. We are also listed as userID1 and userID2. We have plenty of content to prove that we were the original owners.
2- testimonies from our web designer who made the skin and from our custom coder (the offending parties are planning on changing the design/site name but keeping all of our content on their board)
3- testimonies from our current community members and past members who can vouch for us being the original owners, but the offending party also has some people who would vouch for them because they are a part of the faction as well.

Because it is a forum board, copyright laws seem to be slightly convoluted. What I am wondering is this...
- Do my partner and I have copyright to the content on our forum? In this sense, can we claim that the offending party is breaking copyright by stealing our content even though the content consists of peoples threads/posts?
- Do we have legal grounds to sue?
- What measures can we take before having to take a legal route, we would prefer not to spend money. But we have put nearly ten years into this project and would be willing to take this to court if we have a case.

I hope someone can bring insight into this situation. Also you can PM me and I can give you my skype information so we can talk about this further. Thanks

[Lynne]

Have you tried contacting their host and explaining the situation?

[Darigaz]

Yes we have tried that, they can just move their host though. We are continuing to pursue contacting the host but are also looking into our other options. Thanks for your reply. At any rate the offender has our content on his hard drive and can just put it up on a new host/domain if he chooses to do so, which is unsettling.

[Simon Lloyd]

If the content was yours first under your domain then they'll have trouble getting ranked and they'll not be able to have adsense...etc, this may help you http://www.ecreativeim.com/blog/2011/12/report-stolen-content-to-google/

[In Omnibus]

Forum content is the property of the individual who posted the content. If it wasn't forum owners would be liable for the content posted by their membership, including but not limited to warez, child pornography, and content which violates 17USC107 Fair Use clause of the Copyright Act. Where you may have them on legal grounds is regarding infringement of intellectual property. The theme itself and any proprietary content would be subject to de facto copyright under creative commons or other similar licensing. Unfortunately, the only person qualified to give you legal advice is a duly licensed and retained attorney at law. While I can speak in generalities the rights, limitations and exclusions vary greatly from state to state, and there is no overriding law which pertains to the internet at large.

My best advice is to consult qualified legal counsel as to your specific available remedies.

[Darigaz]

thanks for the advice so far people.

[Max Taxable]

Forum content is the property of the individual who posted the content. Actually, it becomes the property of the site when it is posted. Just like the accounts themselves, are property of the site..

[In Omnibus]

Actually, it becomes the property of the site when it is posted. Just like the accounts themselves, are property of the site..

My advice is based upon the following:

http://www.copyright.gov/legislation/dmca.pdf

If there is specific law which grants "the site" property rights I would like to see it. Link?

[Max Taxable]

My advice is based upon the following:

http://www.copyright.gov/legislation/dmca.pdf

If there is specific law which grants "the site" property rights I would like to see it. Link?You give me a massive bunch of text to read through without citing a specific part of it. Therefore the "specifics" part is on you, since you originally claimed it.

But of course, you're not thinking. Let me help.

When you create a account on a forum, you do not own the account. The site does. They can ban you, moderate you, erase you. Anything they want. Because it is theirs.

When you use that account to post on the site, the post is the site's property as a matter of physical fact. They can edit it, moderate it, delete it. Anything they want. Because it is theirs. AND, it is recognized as the site's property under the DCMA as posted earlier in the thread:

http://www.ecreativeim.com/blog/2011/12/report-stolen-content-to-google/

Your account and posts are NOT yours, they belong to the site you post them on for them to do with as they wish and also for them to protect as they wish.

[In Omnibus]

You give me a massive bunch of text to read through without citing a specific part of it. Therefore the "specifics" part is on you, since you originally claimed it.

But of course, you're not thinking. Let me help.

When you create a account on a forum, you do not own the account. The site does. They can ban you, moderate you, erase you. Anything they want. Because it is theirs.

When you use that account to post on the site, the post is the site's property as a matter of physical fact. They can edit it, moderate it, delete it. Anything they want. Because it is theirs. AND, it is recognized as the site's property under the DCMA as posted earlier in the thread:

http://www.ecreativeim.com/blog/2011/12/report-stolen-content-to-google/

Your account and posts are NOT yours, they belong to the site you post them on for them to do with as they wish and also for them to protect as they wish.

Content isn't copyrighted just because you have a website. I think you're misinterpreting the DMCA. You have to hold a legal copyright of the material. How many websites actually file legal copyright of their material? How many originate 100% of their material? One can only copyright material one originated. You can't copyright the written, recorded or graphic work of someone just because they post it on your website.

[Max Taxable]

Content isn't copyrighted just because you have a website. I think you're misinterpreting the DMCA. You have to hold a legal copyright of the material. How many websites actually file legal copyright of their material? How many originate 100% of their material? One can only copyright material one originated. You can't copyright the written, recorded or graphic work of someone just because they post it on your website.Did I say anything about copyright? I am talking about physical ownership of property. Accounts, posts, all content is owned by the site, not the person posting it.

It is also subject to protection under the DMCA, as such.

[In Omnibus]

Did I say anything about copyright? I am talking about physical ownership of property. Accounts, posts, all content is owned by the site, not the person posting it.

It is also subject to protection under the DMCA, as such.

Digital Millenium Copyright Act

To reiterate, the member should consult qualified legal counsel.

[Max Taxable]

Digital Millenium Copyright Act

To reiterate, the member should consult qualified legal counsel.There's still no disputing that your original statement which I first quoted is false. Forum property is NOT the property of the person who posted the content. Neither is the account used to post with. It is ALL property of the site. You don't own your account or your posts.

[In Omnibus]

There's still no disputing that your original statement which I first quoted is false. Forum property is NOT the property of the person who posted the content. Neither is the account used to post with. It is ALL property of the site. You don't own your account or your posts.


What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section "What Works Are Protected."

How is a copyright different from a patent or a trademark?
Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section ?Copyright Registration.?

Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section ?Copyright Registration? and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works.


Source: http://www.copyright.gov/help/faq/faq-general.html#mywork

Let's stop with the "forum property law." It isn't helping the customer.

[Max Taxable]

Source: http://www.copyright.gov/help/faq/faq-general.html#mywork

Let's stop with the "forum property law." It isn't helping the customer.It is simply a fact, possession being 9/10s of the law in any circumstance.

When you submit data to a site you have no control over it, they do. They physically own it, you do not. They can edit it, delete it, whatever they want to do and you have NO say.

Copying it however, content scraping for example - is where the copyright stuff comes in. It's a nebulous area where protecting content is concerned and it's a case by case basis. But there is NO question, the site owner owns all accounts, all posts, and all content in the database. It's just a fact of online life.

If for example, you decided to sue vB dot org for the rights to your posts, your username, etc how far do you think you would get?

[Lynne]

OK guys, that's enough. The OP has enough information now to figure out what he should do. We don't need the two of you to argue here.

[Darigaz]

Um well the thing is... you guys are arguing about whether or not I own the content, and thats exactly what I'm trying to figure out ; )

So do I or do I not legally own the content. Just as some of you are arguing, the offenders are arguing that I dont have rights to the content because the content, "Belongs to the person who posted it"

Thanks

[snakes1100]

The content is yours, not the end users.

[In Omnibus]

Um well the thing is... you guys are arguing about whether or not I own the content, and thats exactly what I'm trying to figure out ; )

So do I or do I not legally own the content. Just as some of you are arguing, the offenders are arguing that I dont have rights to the content because the content, "Belongs to the person who posted it"

Thanks

You only own original content you have posted. You most likely would have needed to hold a formally filed copyright to any other "proprietary information." Because laws differ greatly from state to state and from venue to venue, and because stricter law always takes precedence, you need to consult a licensed attorney in your jurisdiction. My best professional opinion is that you would have a very difficult time making a case for damages according to the legal proof standard. You have no tangible substantive proof of damages, no written contracts.

To whom is the domain registered?

[snakes1100]

That is incorrect, any content posted on his site is solely the property of the owner.

Unless your using copyrighted material you have copied from another site.

[In Omnibus]

That is incorrect, any content posted on his site is solely the property of the owner.

Unless your using copyrighted material you have copied from another site.

ALL material is copyrighted. We've already had that discussion. The specific law has also been cited. Evidence to the contrary notwithstanding.

[snakes1100]

Forum content is the property of the individual who posted the content. If it wasn't forum owners would be liable for the content posted by their membership, including but not limited to warez, child pornography, and content which violates 17USC107 Fair Use clause of the Copyright Act.

That is incorrect, the owner is responsible.

You have no idea what your talking about.

[In Omnibus]

Everyone trying to be a lawyer isn't helping the member. I, therefore, respectfully bow out of the conversation. I do hope the member will consult qualified legal counsel.

[Lynne]

Um well the thing is... you guys are arguing about whether or not I own the content, and thats exactly what I'm trying to figure out ; )

So do I or do I not legally own the content. Just as some of you are arguing, the offenders are arguing that I dont have rights to the content because the content, "Belongs to the person who posted it"

Thanks
And I believe the best answer was that you should seek legal counsel as none of us are attorneys. :)

[snakes1100]

Thats correct Lynne, in the OP's original post & his related issue to his site being copied, his best bet is an attorney.

The issue related to a sites content & what the end user posts on a site, is totally incorrect by the poster who states that the owner is NOT responsible, as its a simple point, if i post a thread/post with a warez link to a file, vbulletin will get the dmca threat, not me, it is the owners responsibility to remove it & if its not, the owner gets sued, not the end user who posted it.

Thats why this statement is incorrect:

Forum content is the property of the individual who posted the content. If it wasn't forum owners would be liable for the content posted by their membership, including but not limited to warez, child pornography, and content which violates 17USC107 Fair Use clause of the Copyright Act.

[In Omnibus]

And I believe the best answer was that you should seek legal counsel as none of us are attorneys. :)

Well, actually ... but I digress. This isn't helping the member.

[kh99]

Well, actually ... but I digress. This isn't helping the member.

Are you a lawyer? I notice you implied it but didn't actually say so.

[In Omnibus]

Are you a lawyer? I notice you implied it but didn't actually say so.

Indeed I am.

--------------- Added 1350769636 at 1350769636 ---------------

Thats correct Lynne, in the OP's original post & his related issue to his site being copied, his best bet is an attorney.

The issue related to a sites content & what the end user posts on a site, is totally incorrect by the poster who states that the owner is NOT responsible, as its a simple point, if i post a thread/post with a warez link to a file, vbulletin will get the dmca threat, not me, it is the owners responsibility to remove it & if its not, the owner gets sued, not the end user who posted it.

Thats why this statement is incorrect:

You may wish to familiarize yourself with the following, Title II Of The DMCA:

TITLE II: ONLINE COPYRIGHT INFRINGEMENT LIABILITY LIMITATION
Title II of the DMCA adds a new section 512 to the Copyright Act3 to create
four new limitations on liability for copyright infringement by online service providers.

The limitations are based on the following four categories of conduct by a service
provider:
1. Transitory communications;
2. System caching;
3. Storage of information on systems or networks at direction of users;
and
4. Information location tools.

New section 512 also includes special rules concerning the application of these
limitations to nonprofit educational institutions.

The failure of a service provider to qualify for any of the limitations in section
512 does not necessarily make it liable for copyright infringement. The copyright
owner must still demonstrate that the provider has infringed, and the provider may still
avail itself of any of the defenses, such as fair use, that are available to copyright
defendants generally. (Section 512(l)).

Limitation for Information Residing on Systems or Networks at the
Direction of Users
Section 512(c) limits the liability of service providers for infringing material on
websites (or other information repositories) hosted on their systems. It applies to
storage at the direction of a user. In order to be eligible for the limitation, the
following conditions must be met:
! The provider must not have the requisite level of knowledge of the
infringing activity, as described below.
! If the provider has the right and ability to control the infringing activity,
it must not receive a financial benefit directly attributable to the
infringing activity.
! Upon receiving proper notification of claimed infringement, the
provider must expeditiously take down or block access to the material.

[kh99]

Indeed I am.

(Lots of legal stuff removed).


lol, it's OK, I believe you. I was just curious because you didn't quite say that in the previous post.

[Max Taxable]

Indeed I am.Well, you're full of malarkey and you didn't answer my earlier challenge:If for example, you decided to sue vB dot org for the rights to your posts, your username, etc how far do you think you would get?
You would get NO WHERE because you have NO rights to what you post on someone else's PRIVATE PROPERTY.

Let's say you painted a mural on the side of my house, then tried to claim copyright? C'mon now. The Mural is MINE the same way the wall itself is MINE.

You have NO RIGHTS regarding what you post on someone else's site!

How would you like, PROVE it was you who posted the content in question? Just for starters.

--------------- Added 1350774641 at 1350774641 ---------------

To the OP:

I have this statement in my terms of service and have had for 11 years, you may or may not wish to add it or something very much like it as well:

All data submitted to (your site) including but not limited to accounts, usernames, signatures, posts, custom user titles and etc become the property of (your site) immediately upon submission. (Your site) owns all content in its database and files, without exception.

[snakes1100]

3. Storage of information on systems or networks at direction of users;


That refers to the site owner.

The only person that will get a dmca notice about illegal content is the site owner, not the end user who posted it.

[In Omnibus]

That refers to the site owner.

The only person that will get a dmca notice about illegal content is the site owner, not the end user who posted it.

Out of context.

--------------- Added 1350828090 at 1350828090 ---------------


To the OP:

I have this statement in my terms of service and have had for 11 years, you may or may not wish to add it or something very much like it as well:

Asking members to agree to a statement which is contrary to existing law doesn't make it legal.

--------------- Added 1350828718 at 1350828718 ---------------

My final comment on this thread: Unless infringement is intentional and can be proven to have caused actual financial damages, the most a site owner would ever receive is a Cease And Desist Order with a notice specifying the material which is being infringed upon and a request to remove the material.

[Max Taxable]

And you again, avoided my scenarios. Because you know you cannot answer them.

[Alfa1]

My partner had ftp access and gave ftp to one of our web masters. Said web master gave ftp to one of our community admins who said he wanted to do some clean up on the server (he made a mistake by not consulting with my partner and i), but instead the community member just stole the content and relocated to a new domain.
Do you have proof that this person accessed the server without your permission? Check your server logs.
It would be worth asking your lawyer whether this access to your server is illegal or not.

I think you should distinguish between stealing the content and stealing your files and database. There is a lot of difference.
As I see it, this is what happened:

1. The person gained (possibly unlawful) access your server through manipulation and lies. Such malicious access to your server could be seen as social engineering depending on the details. It could be seen as hacking and fall under relevant laws.

2. Then he stole your assets. The stolen property includes:
- your database
- your files
- your design
Think about any other assets that may have been stolen by this person. What else represents value to you.

Your assets represent value. Consider what that value is. Spending 10 years on a project seems like a very significant value to me. Ask your lawyer, consider what similar sites cost and also get a good valuation of your site / assets.

The design may be the intellectual property of your designer, so it may be unlicensed use of the design. Ask your lawyer what statements you need from the designer to be able to include this in your case.

3. Then he made use of your assets by using those to create his own website.
Has he used this to generate income in any way? If so, then he is making money from stolen assets.
If he is contacting your members then he is actively damaging your website. Your website represents a value, and that value is being damaged.

4. If your website content is copyrighted by your ToS, then your copyright is violated as well.

5. Your user data is private data. This person stealing the user data and using that data could be a breach of Data Protection laws, depending on where you are located and what laws are applicable. Again: check with your solicitor.

Based upon the above you have a number of possible illegal actions that you need to address through legal action. At the very least go to a lawyer specialized in online intellectual property and similar cases and ask for their opinion.

- Do my partner and I have copyright to the content on our forum? In this sense, can we claim that the offending party is breaking copyright by stealing our content even though the content consists of peoples threads/posts?
This depends upon your ToS. But as said, it may not be the copyright breach thats the main issue. It may well be the illegal access to your server, stealing your assets, data protection laws, generating income that you are entitled to and damaging your property.

- Do we have legal grounds to sue?
I think you should really get advise from a lawyer, as it seems very likely that you have good ground to sue.
Mind that I am no lawyer and am completely unaware of your location or applicable laws in your location.

- What measures can we take before having to take a legal route, we would prefer not to spend money. But we have put nearly ten years into this project and would be willing to take this to court if we have a case.
This will cost you money, time, effort and stress. I deal with court cases and lawyers frequently and there is no way around that. If you are successful, then you could be reimbursed for your damages by the perpetrator.

What you can and should do right now is carefully document everything that has happened and is happening. Server logs, screenshots, emails, chats, etc.

It is not unlikely that a good letter from your lawyer will cause the duplicate website to be shutdown and pulled from the web.
After that you need to have a good body of evidence, including backups of everything and anything to be able to sue for substantial damages.

Be careful about what you post in public. The person may read what you post.

[In Omnibus]

4. If your website content is copyrighted by your ToS, then your copyright is violated as well.

Your laws may differ, however, a T.O.S. is not a legally binding agreement in the United States. It has absolutely no effect on law, nor does it supersede law in any manner. The rest of your post, however, is excellent.

--------------- Added 1350834461 at 1350834461 ---------------

And you again, avoided my scenarios. Because you know you cannot answer them.

That might be because you're posting the most ridiculous nonsense possible. I have numerous websites where professionals from doctors in various fields to attorneys to published authors post content. That doesn't make the content mine. In fact, these fine individuals would never post anything if it meant waiving their right to their content. I know of no one who would agree to such terms, and even if they did it would hold no force and effect in law. Just because you write a TOS which says by joining your site I agree you have the right to, for example, half of my paycheck, doesn't make it so. You're simply making it up as you go along which makes it impossible to respond with any logical answer.

[Alfa1]

Your laws may differ, however, a T.O.S. is not a legally binding agreement in the United States. It has absolutely no effect on law
Thanks. I know law overrules / superseeds ToS. I was not aware that ToS is not a binding agreement in the US. Could you please expand on this?

[In Omnibus]

Thanks. I know law overrules / superseeds ToS. I was not aware that ToS is not a binding agreement in the US. Could you please expand on this?

This isn't my field of expertise but the underlying issue is that you have no way of proving in a court of law who it was on the other end of the internet that agreed to the T.O.S. It was someone at X IP address doesn't stand up to scrutiny. There are exceptions to this, however, they are usually found on secure sites which require credit card or other verification and personally identifying information. The average vBulletin forum does not request nor require any such personally identifying information and therefore would never be able to prove who it was that agreed to the terms of service.

[Max Taxable]

That might be because you're posting the most ridiculous nonsense possible..Right, but you can't seem to answer even one of the scenarios. Because you know you're full of beans.

--------------- Added 1350841923 at 1350841923 ---------------

This isn't my field of expertise but the underlying issue is that you have no way of proving in a court of law who it was on the other end of the internet that agreed to the T.O.S.Just like YOU have no way to prove it was YOU who posted the content on a site.

Conversely, when you agree to the ToS, then try to sue, you have identified YOURSELF as the person who agreed to the ToS!

You can't even see how circular your lame arguments are.

[CAG CheechDogg]

Here is an article that I have used to run my forums and lay out the ToS in regards to who owns what and who can do what with the content in our site and forums.

"Who owns the content of a post posted on your forum? How do you respond if someone demands “their” posts be deleted and they threaten legal action if you don’t, but removal of the posts ruins a valuable thread? Where do you as the forum Admin or owner stand?

By default in the non-forum world, authors own the copyright on their own creations. This is an automatic right of the creator of the work, so technically the creator of the post is the copyright owner. However, by posting on a forum, you would have accepted the terms and conditions when you join a forum that covers this type of publication and what it implies. In posting you are accepting that your creative content (ie your post) will be published by the forum administrator and owner, and also that they have the right to edit or do what ever they like with your post as they see fit.

But does that mean that when material is publicly posted in a forum that this implies transfer of copyright ownership? The copyright lawyers can not even agree on this. The reality of the matter seems to be that there is no clear legal precedent yet made on this matter, and therefore until there is, then the issue will remain vague and uncertain. It has never been tested in court, let alone the issue of legal jurisdiction as to country of the Administrator, the country of the servers the forum is hosted in, etc.

What appears to be important is the terms that members agree to when they joined and whether they can withdraw the material they posted if they want to (eg when they leave a forum). To cover yourself, add into the forum rules something to the effect that ‘copyright to forum posts and other information become the property of the forum‘. In my forum rules I have strictly pointed out that all posts become owned by the forum. This gets politely pointed out to those making threats. I never hear from them again."

The article can be found here: http://www.forumdr.com/who-owns-forum-posts/67/

This article is over 2 years old and at the time of this article note the following; "The copyright lawyers can not even agree on this. The reality of the matter seems to be that there is no clear legal precedent yet made on this matter, and therefore until there is, then the issue will remain vague and uncertain. It has never been tested in court, let alone the issue of legal jurisdiction as to country of the Administrator, the country of the servers the forum is hosted in, etc."

I still have not heard of anyone going to court regarding copyright material on their forums and winning a case about who owns the content.

The way I see it a carefully written ToS is only an agreement between the site/forum owner and the member(s) who create an account to have the "right" to use and post on the owner's site or forums.

If the member(s) break any of the rules of the ToS the site owner has the right to ban or deny access to the member(s) and the site owner is not obligated to remove the content that was posted by any member or the information submitted when they first registered on the site or forums.

In the OP's case he is trying to determine if "they" own the content that was posted on their forums to determine what course of action they can take.

This is going to be difficult for you to prove that the content was even yours to begin with, even if you do have the archives with dates and what not, they will have exactly the same information as you do since they did take your database. Remember everything is on that database.

Only thing that you will probably be able to do is get as many of your forum members to vouch for you and your partner if you are planning going with legal action. I don't see you winning such a case though buddy, sucks but if this goes to court the judge will probably question your ability to a. properly secure your site/forums, b. your partners intentions when giving the web master access to your files via ftp and c. who actually owns the content, your and your partner or the other party.

Most of these cases can be resolved by having an attorney or lawyer write a letter to the other party stating that legal action will be taken if they do not stop using your content. Something like this might cost you a couple hundred dollars but you might be able to get someone to write you one really for free after seeking legal advice.

I had a similar issue resolved by having my cousin who works at a law firm write and send a letter stating that legal action would be used if they did not remove content that was defaming my reputation and character. Although this is slightly different from you situation this is going to probably be the only way to go about this.

Hope this helps you out buddy, good luck!

[In Omnibus]

The above post is solid in that a member expresses consent to the site when they agree to the TOS, however, that is also not a carte blanche. That does not grant the site the right to reproduce, retransmit or otherwise disseminate the content. And, if the content is found to be copyright of someone other than the member who posts it there is strong possibility of a legal notice to remove the content. As has been stated several times now, the underlying issue is proving damages, which is extremely difficult to do.

I can tell you ESPN has gone to court regarding the infringement of their ESPN Insider articles by certain websites and has been awarded damages. In their case, obviously the content is a paid subscription and they can prove financial losses.

This particular issue is not the same.

[CAG CheechDogg]

@ ProSportsForums

Are you saying that "I" am saying a ToS gives the site owner the right to "carte blanche"?

I have the following in my ToS:

"7. Submission of Content on this Web Site

By providing any Content to our web site such as text, tutorials, reviews, previews, written articles, images, artwork;

(a) you agree to grant to us a perpetual worldwide, royalty-free, non-exclusive right and license to use, display, reproduce, modify, publish, archive, translate, and to create derivative projects such as tournaments, competitions and compilations, in whole or in part. Such agreement to the license will apply with respect to any form, media, technology known or later developed;

(b) you warrant and represent that you have all legal, moral, and other rights that may be necessary to grant us with the license set forth in this Section 7;

(c) you acknowledge and agree that we shall have the right to remove and or block any access to any "CONTENT" you provide by uploading, or add by means of text into our forums or in articles you submit, but not obligation to remove it only at our sole discretion."

That doesn't mean I am going to reproduce the content but by registering and creating an account the registered member(s) explicitly agree to our Terms of Service.

If you and I are on the same page that doesn't mean that what happened with the OP and the other party is justified by any ToS or even copyright. The other party, if this is the OP's database has stolen their property in this case their (database) regardless of who posted what on the OP's forum or site. This "can" be resolved by what I suggested the OP do with just a simple letter to beging with.

So yes, proving damages is going to be very difficult.

[In Omnibus]

@ ProSportsForums

Are you saying that "I" am saying a ToS gives the site owner the right to "carte blanche"?

I have the following in my ToS:

"7. Submission of Content on this Web Site

By providing any Content to our web site such as text, tutorials, reviews, previews, written articles, images, artwork;

(a) you agree to grant to us a perpetual worldwide, royalty-free, non-exclusive right and license to use, display, reproduce, modify, publish, archive, translate, and to create derivative projects such as tournaments, competitions and compilations, in whole or in part. Such agreement to the license will apply with respect to any form, media, technology known or later developed;

(b) you warrant and represent that you have all legal, moral, and other rights that may be necessary to grant us with the license set forth in this Section 7;

(c) you acknowledge and agree that we shall have the right to remove and or block any access to any "CONTENT" you provide by uploading, or add by means of text into our forums or in articles you submit, but not obligation to remove it only at our sole discretion."

That doesn't mean I am going to reproduce the content but by registering and creating an account the registered member(s) explicitly agree to our Terms of Service.

If you and I are on the same page that doesn't mean that what happened with the OP and the other party is justified by any ToS or even copyright. The other party, if this is the OP's database has stolen their property in this case their (database) regardless of who posted what on the OP's forum or site. This "can" be resolved by what I suggested the OP do with just a simple letter to beging with.

So yes, proving damages is going to be very difficult.

No. I am agreeing with your post. A member consents to the site having the posted material by posting the material. That does not give the site owner legal right to post the material elsewhere nor to sell the material. That is where the ownership issue falls short for the site owner. The member who posted the material is, of course, free to post it anywhere he or she chooses. In the unlikely event a site owner did attempt to sell posted material or to reproduce it on another site the member who originally posted it would still have to prove damages.

Your TOS sets you apart from most forums in that you are specific as to the rights you are requesting in the TOS. I can tell you that I would never agree to your terms. :D

[Max Taxable]

That does not give the site owner legal right to post the material elsewhere nor to sell the material. That is where the ownership issue falls short for the site owner. The member who posted the material is, of course, free to post it anywhere he or she chooses. In the unlikely event a site owner did attempt to sell posted material or to reproduce it on another site the member who originally posted it would still have to prove damages.

Your TOS sets you apart from most forums in that you are specific as to the rights you are requesting in the TOS. I can tell you that I would never agree to your terms. :DI am glad you now agree that the site owner owns the bits and bytes of information in his database.

However you have erected a strawman, since the owner selling or posting the material elsewhere was NOT part of the original argument. You have attempted to move the goalposts away from your original statement which was:Forum content is the property of the individual who posted the content.
No, it is not.

[Simon Lloyd]

Ok guys!, here's a link to a law sit on this subject http://www.expertlaw.com/forums/showthread.php?t=98327

This may help a little too https://www.eff.org/issues/bloggers/legal/liability/overview

[In Omnibus]

Ok guys!, here's a link to a law sit on this subject http://www.expertlaw.com/forums/showthread.php?t=98327

Did you happen to read her footer disclaimer?

I'm not a lawyer, but I play a researcher on the internet!

[Max Taxable]

That makes it pretty darn clear Simon, it's humorous to read that convoluted ToS statement and the opinion of the "attorney" there.

Thanks for the post! :D

[Simon Lloyd]

Hmmm maybe not, read xenforos account, now you know they've had legal issues...read on http://xenforo.com/community/threads/post-ownership.25094/

--------------- Added 1350852665 at 1350852665 ---------------

That makes it pretty darn clear Simon, it's humorous to read that convoluted ToS statement and the opinion of the "attorney" there.

Thanks for the post! :DTypical legaleese but thats it in a nutshell :)

[In Omnibus]

Hmmm maybe not, read xenforos account, now you know they've had legal issues...read on http://xenforo.com/community/threads/post-ownership.25094/

Exactly on point. Excellent post.

[Max Taxable]

Hmmm maybe not, read xenforos account, now you know they've had legal issues...read on http://xenforo.com/community/threads/post-ownership.25094/

--------------- Added 1350852665 at 1350852665 ---------------

Typical legaleese but thats it in a nutshell :)THAT is quite interesting. Was this a US court? Would have been nice of them to post a link to the actual rulings, but I understand why they wouldn't want to do that.

Interesting also that the court seemed to rule that the ToS is more important than some might think.

--------------- Added 1350852994 at 1350852994 ---------------

Exactly on point. Excellent post.Yes, it contradicts what you said, that even if it is spelled out in the ToS who owns what, the person posting the material owns it. Clearly that isn't the case.

If it is spelled out clearly in the ToS that the site owns the content, then the site owns the content and the person posting it has no recourse.

I knew there was a reason I have had that in my ToS for these 11 years.

[In Omnibus]

THAT is quite interesting. Was this a US court? Would have been nice of them to post a link to the actual rulings, but I understand why they wouldn't want to do that.

Interesting also that the court seemed to rule that the ToS is more important than some might think.

--------------- Added 1350852994 at 1350852994 ---------------

Yes, it contradicts what you said, that even if it is spelled out in the ToS who owns what, the person posting the material owns it. Clearly that isn't the case.

If it is spelled out clearly in the ToS that the site owns the content, then the site owns the content and the person posting it has no recourse.

I knew there was a reason I have had that in my ToS for these 11 years.

Selective reading?


Jason said: ↑

The copyright argument doesn't necessarily hold weight in the U.S. (for those based here), where law requires a conveyance to transfer copyright if it's not work-for-hire. No click-through or site ToS will transfer copyright ownership in the U.S. (I doubt it would work for any property, which copyright is). What you really want is a non-exclusive license to use the content.

[Max Taxable]

I saw that, but then again that person didn't cite any actual case law. Apparently the issue with the aircraft forum being sued was in Australia, I still know of NO such case law or precedent in the United States.

Do you?

But again - earlier you agreed that the bits and bytes of data and information in the site owner's database is owned by the site owner - you merely quibble now with your goalpost-moving, strawman argument of whether that site owner can publish the material elsewhere or sell it.

Which is WAY off topic from the OP.

[Simon Lloyd]

It's wayyyy different in the US, i only skimmed but the concluding post for me was http://xenforo.com/community/threads/post-ownership.25094/page-2#post-305332 in the US you specifically have to have "transfer of copyright" and you can only transfer copyright of an already created work, when someone signs up to your forum they haven't created a work so the US will ignore that agreement that they consented to prior to posting, however it does seem that you can have a pop up with the submission button for a post indicating that they agree to "transfer of copyright.....blah!" when submitting the post, that said you couldn't do it retrospectively for all previous posts.

Here in the UK (EU) copyright laws are very different and more defined.

[In Omnibus]

earlier you agreed that the bits and bytes of data and information in the site owner's database is owned by the site owner

I never made any such statement.

[Max Taxable]

I never made any such statement.It does appear so:

https://vborg.vbsupport.ru/showthread.php?p=2374858#post2374858

And I attempted to clarify it here:

https://vborg.vbsupport.ru/showpost.php?p=2374859&postcount=43

And you might have missed that post, since the page was turning on this thread, so to speak.

You moved the goalposts and started quibbling about whether the site owner can publish the material elsewhere or sell the material, in context you are admitting that he does otherwise, OWN it.

[In Omnibus]

It does appear so:

https://vborg.vbsupport.ru/showthread.php?p=2374858#post2374858

And I attempted to clarify it here:

https://vborg.vbsupport.ru/showpost.php?p=2374859&postcount=43

And you might have missed that post, since the page was turning on this thread, so to speak.

You moved the goalposts and started quibbling about whether the site owner can publish the material elsewhere or sell the material, in context you are admitting that he does otherwise, OWN it.

Selective Reading once again:

No. I am agreeing with your post. A member consents to the site having the posted material by posting the material. That does not give the site owner legal right to post the material elsewhere nor to sell the material. That is where the ownership issue falls short for the site owner. The member who posted the material is, of course, free to post it anywhere he or she chooses. In the unlikely event a site owner did attempt to sell posted material or to reproduce it on another site the member who originally posted it would still have to prove damages.

There is no sense in arguing with you. Clearly that is all you wish to do.

[fmgrowit]

Submission of Content on this Web Site

By providing any Content to our web site such as text, tutorials, reviews, previews, written articles, images, artwork;

(a) you agree to grant to us a perpetual worldwide, royalty-free, non-exclusive right and license to use, display, reproduce, modify, publish, archive, translate, and to create derivative projects such as tournaments, competitions and compilations, in whole or in part. Such agreement to the license will apply with respect to any form, media, technology known or later developed;

(b) you warrant and represent that you have all legal, moral, and other rights that may be necessary to grant us with the license set forth in this Section 7;

(c) you acknowledge and agree that we shall have the right to remove and or block any access to any "CONTENT" you provide by uploading, or add by means of text into our forums or in articles you submit, but not obligation to remove it only at our sole discretion."


Would you mind if I stole this?...I mean "borrow" this wording for my site. ;)

Could the TOS include wording to the effect "by clicking "Post reply" you agree to transfer content ownership" or something like that?

[CAG CheechDogg]

Would you mind if I stole this?...I mean "borrow" this wording for my site. ;)

Could the TOS include wording to the effect "by clicking "Post reply" you agree to transfer content ownership" or something like that?

If you don't mind me taking you to court over it...;)

Your ToS can have pretty much anything you want in it. As long as the people registering agree to it you are fine. If they happen to break any of your conditions, rules or what not then you have the right to ban them or deny them access to your site or forums.

So yes, you can include that wording as well.

[In Omnibus]

Purely for comparison, here is the relevant portion of our TOS:

You are responsible for the content you post.

And our copyright statement:


Copyright and Intellectual Property Policy

X respects the intellectual property of others, and we ask our users to do the same. Material available on or through other web sites may be protected by copyright and the intellectual property laws of the United States and/or other countries. The terms of use of those web sites, and not the X Terms of Service, govern your use of that material. It is the policy of X, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who may infringe or repeatedly infringe the copyrights or other intellectual property rights of other parties.

Notice for Claims of Intellectual Property Violations and Agent for Notice

If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide X Agent with the following information: 1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; 2. a description of the copyrighted work or other intellectual property that you claim has been infringed; 3. a description of where the material that you claim is infringing is located on the site, with a link or .url to the specific page or enough other detail that we may find it on the web site; 4. your address, telephone number, and email address; 5. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and 6. a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf. X Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows: By mail: Copyright Agent Attn: Office of General Counsel (Address) By phone: (Phone#)

Please note that, due to security concerns, attachments cannot be accepted. Accordingly, any notification of infringement submitted electronically with an attachment will not be received or processed.


As you can see, we want no assumption of liability from the content posted. :D

[CAG CheechDogg]

How do you think that would help you in the OP's case ProSportsForums if your database and content was stolen like his?

--------------- Added 1350948381 at 1350948381 ---------------

This is actually a very good topic to discuss as long as we are civil about it. In the last couple of months I have seen similar cases with others especially with video game and clan forums and websites.

When these clans end up breaking up or members don't see eye to eye they begin to throw at each other a bunch of mumbo jumbo to try and get the other party to pretty much fold or throw in the towel.

Many people especially those who start up sites and forums for clans have no clue of what responsibilities and legalities they are taking on when they decide to build a website/forums.

It would be a good idea for someone to write up an article or something for those who are starting up a site/forum about what they should be aware about before they go on and build one.

I like this discussion, so lets keep it civil so we can help not only the OP but others who might come across this topic.

[In Omnibus]

How do you think that would help you in the OP's case ProSportsForums if your database and content was stolen like his?

--------------- Added 1350948381 at 1350948381 ---------------

This is actually a very good topic to discuss as long as we are civil about it. In the last couple of months I have seen similar cases with others especially with video game and clan forums and websites.

When these clans end up breaking up or members don't see eye to eye they begin to throw at each other a bunch of mumbo jumbo to try and get the other party to pretty much fold or throw in the towel.

Many people especially those who start up sites and forums for clans have no clue of what responsibilities and legalities they are taking on when they decide to build a website/forums.

It would be a good idea for someone to write up an article or something for those who are starting up a site/forum about what they should be aware about before they go on and build one.

I like this discussion, so lets keep it civil so we can help not only the OP but others who might come across this topic.

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So, did the OP change it?

[CAG CheechDogg]

I am not sure if he did or not, I changed that part on my forums and it reads a little different but I did add the ToS and Privacy Policy to it and extended the window to 400px high.

[In Omnibus]

I am not sure if he did or not, I changed that part on my forums and it reads a little different but I did add the ToS and Privacy Policy to it and extended the window to 400px high.

I changed mine as well. My TOS is a novella. I also have separate copyright statements, privacy statements, and privacy policies. But if I had to prove in a court of law that every member has agreed to those specific terms it would be a challenge.

[CAG CheechDogg]

I changed mine as well. My TOS is a novella. I also have separate copyright statements, privacy statements, and privacy policies. But if I had to prove in a court of law that every member has agreed to those specific terms it would be a challenge.


Oh yeah PSF, that is why the ToS should only be viewed as an agreement between the owner and user(s) , if the user(s) break the ToS they should immediately ban or deny them access.

In the OP's case of course this is just so different and really sucks for the OP, it will be very hard to do something if he is not willing to spend money and time I think.

[Simon Lloyd]

In the OP's case of course this is just so different and really sucks for the OP, it will be very hard to do something if he is not willing to spend money and time I think.The point though is that the OP can still run his site with the original name...etc and the serach engines will drop the indexing of the stolen content because it's been dupliacted, anyway, he's nothing to loose fro trying every avenue like a DCMA.....etc, worst they can say is no!

[Alfa1]

Its also worth noting that since recently Google takes DMCA requests into account with ranking. The more DMCA notices a site gets, the lower the ranking.
But basically the OP can get that whole site out of Google, effectively cutting off their organic search influx.
The duplicate site would still be able to email all members to get it active.