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User-generated content

I own a website where...
I own a website where all content on the website is created by users via discussion forums and other means. All content is text. The terms of use on my website (as with most websites) states the following: 

"By uploading content to or submitting any materials for use on our Website, you grant (or warrant that the owner of such rights has expressly granted) Hosting Provider a worldwide, perpetual, royalty-free, irrevocable, transferable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, delete in its entirety, create derivative works from and/or sell and/or and distribute such materials or incorporate such materials into any form, medium, or technology now known or later developed throughout the universe without your consent and without compensation to you."


This means I do not own copyright on user-generated content on my site. If I find another website where user-generated content from my site has been copied and published by the owner of that website, and the website exists for commercial reasons, what legal action can I take against the owner of that website, when I own only a non-exclusive right to the content, not the copyright?
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Answered in 27 minutes by:
6/1/2012
socrateaser
socrateaser, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 39,372
Experience: Retired (mostly)
Verified
Difficult question. Since you don't own the copyright, you can't claim that anyone has infringed on your copyright, unless you have created a derivative or transformative work with sufficient creative changes to justify a separate copyright. You could include text in your grant that provides you with agency authority to enforce the owner's copyright on the owner's behalf. But, without that language, you cannot stop others from using the creative content posted by others on your website.

Note: I particularly like your use of the term "universe" in your legal text. Quite forward thinking, though likely unnecessary.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. Your positive feedback to the website is appreciated. If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

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Customer reply replied 5 years ago
Is it advisable to change the terms of use on my website to mention that the Website Owner owns all copyright to content posted by users? From then on, I will own copyright on user-generated content on my site, and I can take action for copyright infringement of my user-generated content.

Q - What are the implications of the above change? Does it increase my liability unnecessarily?

Q - I suppose I can only take action on infringement I found "after" I made the above change to my terms of use?
Is it advisable to change the terms of use on my website to mention that the Website Owner owns all copyright to content posted by users? From then on, I will own copyright on user-generated content on my site, and I can take action for copyright infringement of my user-generated content.

Q - What are the implications of the above change? Does it increase my liability unnecessarily?

A: If you are the owner, then depending upon the character of the relationship between yourself and the users, they may be your "employees." A "work made for hire" under the U.S. Copyright Act requires that either the copyright owner must be the employer of the creator, or that the work was "specially ordered or commissioned," by the copyright owner from the creator. It would be difficult to claim that you specially ordered/commissioned the work on your website, which leaves the employment relationship as the only other possibility. This circumstance devolves into one where you re clearly not the employer, and that means that your attempt to assert ownership over the creative work is not legally enforceable.

Q - I suppose I can only take action on infringement I found "after" I made the above change to my terms of use?

A: That would be the legally-reasonable conclusion.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. Your positive feedback to the website is appreciated. If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

socrateaser
socrateaser, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 39,372
Experience: Retired (mostly)
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Customer reply replied 5 years ago
On a different note, I read about protection against copyright infringement under DMCA, so I have some protection if a user posts content on my website that infringes another's copyright.

However, I also read that the protection from copyright liability applies only to content posted by third-party users and only if I do not exercise "editorial control" over the posting of the content.

What is covered under editorial control?

For example:

If I do not edit any user's posts, but only delete offensive posts, is that editorial control?

If my discussion forum is self-moderated, where my website users moderate the discussion forums themselves without any input from my side, is that editorial control?

Does "no editorial control" mean I have to let any user post anything on my website's discussion forum, even spam, profanity, threats, religiously offensive material, etc?
In Gucci, America, Inc. v. Hall and Associates, 135 F.Supp.2d 409 (NY SD 3/14/2001), the Federal District Court for the Southern District of NY held that "[defamation] lawsuits seeking to hold a service provider liable for the exercise of a publisher's traditional editorial functions, such as deciding whether to publish, withdraw, postpone or alter content -- are barred." However, lawsuits for copyright and/or trademark infringement are allowed.

In my view, the injection of any editorial control (i.e., paying attention to what users post, before a third party files a DMCA complaint), is sufficient to create liability in an ISP for copyright/trademark infringment. In other words, the DMCA is intended to relieve an ISP from the substantial costs of having to patrol its website for infringing material, and leaves it to the copyright or trademark owner to do so. But, if the ISP engages in the preemptive control of user activities, then the ISP is acting in a traditional publishing role, and may be held liable for copyright/trademark infringement.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. Your positive feedback to the website is appreciated. If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!


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Customer reply replied 5 years ago
Thank you. Couple more thoughts.
1 -- If I am engaging with my users by discussing issues with them without editing or deleting their posts, but still paying attention to what they are posting, do I still have DMCA protection over the user-generated part of the forum?
2 -- What if I am moderating the forum by not deleting any discussions, but instead marking some discussions as "indecent", so they fall below the viewing threshold. Users can mark discussions as indecent, and the site admin can also mark discussions as indecent. By default, all users see only discussions that are above the viewing threshold. However, users still have the option to see discussions below the viewing threshold if they choose to do so. This means that no discussions are deleted or altered -- they are only placed in different viewing buckets. Only the "decent" content is displayed to users by default. And users have the option to see ALL discussions, even indecent ones.
1 -- If I am engaging with my users by discussing issues with them without exercising any editorial control over what they post, I assume I still have DMCA protection over the user-generated part of the forum.

A: I think that's a fair assumption. The "fair use doctrine," (17 U.S.C. 107) generally immunizes editorial commentary from copyright/trademark infringement claims.

2 -- What if I am moderating the forum by not deleting any discussions, but instead marking some discussions as "indecent", so they fall below the viewing threshold. Users can mark discussions as indecent, and the site admin can also mark discussions as indecent. By default, all users see only discussions that are above the viewing threshold. However, users still have the option to see discussions below the viewing threshold if they choose to do so. This means that no discussions are deleted or altered -- they are only placed in different viewing buckets. Only the "decent" content is displayed to users by default. And users have the option to see ALL discussions, even indecent ones.

A: Exercise of editorial controls over offensive materials is protected under the DMCA (47 U.S.C. 230(c)(2)(A)). You can do whatever you want, concerning what you characterize as "indecent" materials -- as long as it's not a sham for controlling intellectual property or other commercial activities. Example: Someone calls another user a ****sucker. You can censor the text. However, if someone describes your website as engaging in unfair/fraudulent business practices, and simultaneously calls you a ****sucker, and you censor the entire comment as indecent, then that could be used as evidence that you are actually engaged in traditional editorial controls, and so your protection against user copyright/trademark infringement may be subject to invalidation.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. Your positive feedback to the website is appreciated. If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

socrateaser
socrateaser, Lawyer
Category: Intellectual Property Law
Satisfied Customers: 39,372
Experience: Retired (mostly)
Verified
socrateaser and 87 other Intellectual Property Law Specialists are ready to help you
Ask your own question now
Customer reply replied 5 years ago
I didn't quite get the second answer.

You said "You can do whatever you want, concerning what you characterize as "indecent" materials -- as long as it's not a sham for controlling intellectual property or other commercial activities."

What will be classified as a sham for controlling intellectual property or other commercial activities? Can you give me a better example?
I thought my example was pretty clear. I don't know how to further clarify.

The point is that if you are using the "obscenity" protection of 47 U.S.C. 230(c)(2)(A) to censor clearly obscene materials, then you are okay. If you use the exception to censor other forms of objectionable user commentary, then you are engaged in editorial control, and you may be held liable for copyright infringement despite the protections of the DMCA takedown provisions.

Hope this helps.

NOTICE: My goal here is to entertain while educating the public about the law. Your positive feedback to the website is appreciated. If you need to contact me again, please put my user id at the beginning of your question ("To Socrateaser"), and the system will send me an alert. Please Click the following link for IMPORTANT LEGAL INFORMATION. Thanks and best wishes!

Ask Your Own Intellectual Property Law Question
Customer reply replied 5 years ago
Ok, now I understand. So only remove the obscene part from the comments, but do not hide the entire comment. Got it.
Okay.
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socrateaser
socrateaser
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Category: Intellectual Property Law
Satisfied Customers: 39,372
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