Content theft - need some advice
 

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

Have you tried contacting their host and explaining the situation?

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.

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...ent-to-google/

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.

thanks for the advice so far people.

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?

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...ent-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.

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.

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.

Source: http://www.copyright.gov/help/faq/fa...al.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?

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.

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

The content is yours, not the end users.

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?

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.

That is incorrect, the owner is responsible.

You have no idea what your talking about.

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.

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

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:

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.

Indeed I am.

--------------- Added [DATE]1350769636[/DATE] at [TIME]1350769636[/TIME] ---------------

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.

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

Well, you're full of malarkey and you didn't answer my earlier challenge: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 [DATE]1350774641[/DATE] at [TIME]1350774641[/TIME] ---------------

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:

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 [DATE]1350828090[/DATE] at [TIME]1350828090[/TIME] ---------------

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

--------------- Added [DATE]1350828718[/DATE] at [TIME]1350828718[/TIME] ---------------

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.

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

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.

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.

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.

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.

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 [DATE]1350834461[/DATE] at [TIME]1350834461[/TIME] ---------------

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.

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.

Right, but you can't seem to answer even one of the scenarios. Because you know you're full of beans.

--------------- Added [DATE]1350841923[/DATE] at [TIME]1350841923[/TIME] ---------------

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.

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!

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.