Content theft - need some advice

[snakes1100]

Originally Posted by ProSportsForums

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]

Originally Posted by snakes1100

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.

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Originally Posted by Max Taxable

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 [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.

[Max Taxable]

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

[Alfa1]

Originally Posted by Darigaz

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.

Originally Posted by Darigaz

- 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.

Originally Posted by Darigaz

- 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.

Originally Posted by Darigaz

- 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]

Originally Posted by Alfa1

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.

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Originally Posted by Max Taxable

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]

Originally Posted by ProSportsForums

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]

Originally Posted by Alfa1

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]

Originally Posted by ProSportsForums

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

Originally Posted by ProSportsForums

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.