Inadvertently breaching copyright

[rmssetc]

This is precisely why we only respond to Original Copyright Owners. We do not actively attempt to enforce copyright, but we'll gladly remove any material when approached by the original owners of the copyright.

Sure, that's the basic requirement of the DMCA, no question there.

I'm curious about whether the active moderation moves SB out of the protection of the safe harbor provisions.

For example, imagine a moderator is actively following a thread on say, a film maker who died while diving using a rebreather, and the moderator is moving postings to different threads, editing some posts, and deleting others. Those actions take place with the approval of Scubaboard (the company) by virtue of the fact that the moderator has been given those special powers. The moderation actions also take place in the absence of specific user complaints -- posts are moved/edited/removed at the moderator's discretion, not in response to a request. In the course of reading postings, the moderator sees images that were uploaded to SB in violation of copyright and does not moderate (ie., remove) those copyrighted images. Does this expose SB to liability because it is no longer simply a passive conduit of user-provided content (an OSP), but has taken on a role of curating the content?

I sincerely hope you've had this discussion with actual IP lawyers, rather than random people posting on some internet message board.

 

[RyanT]

Max, you probably know this already, but register your images with the Library of Congress. Doing so gives you the option to sue for additional damages beyond just loss of use for that particular infringement.

 

[Lorenzoid]

@rmssetc , the effect, if any, of "active moderation" is an interesting question. Like for a lot of questions, there's probably no clear answer in the law because the issue hasn't been litigated. Creative theory, though--you should be a law professor!

 

[The Chairman]

It's a matter of consistency. If a user agrees to a ToS that we say we are going to, and do enforce, then we are good as long as we stay within our published guidelines. The law states, and has recently been upheld in court, that we have no duty to verify the uniqueness of content unless there is a specific request to do so, as long as we don't establish a policy either published or by precedent where we agree to proactively verify the uniqueness of said content. This applies to images, to verbiage and anything else that can be considered "content". We had this issue back in 2005 (thereabouts) where mods wanted to play whack-a-mole with obviously copyrighted material such as logos. For the most part, manufacturers want their logos posted as many times as they can. That doesn't impinge on their copyrights. We've had at least one company (MAKO Spearguns, if I recall) ask that we remove their logo from a specific user's signature line that was no longer a dealer. We've had a few, albeit very few, requests for an image to be removed and one that asked that all of their images be removed. The former is easy, but we put the onus on the latter by making them give us links to the offending images. There were two and we were within our rights to make them do this.

If the US government were to require that we vet all images and/or content for uniqueness prior to publishing, then the interwebs would shrink overnight and many websites, including this one, would be pushed overseas. Bottom line, the reason why we rely on reported posts and push that over and over is for the same reason. It's also the reason why I would rather a post get reported by someone other than staff as it reduces our exposure to be uber consistent.

 

[Clark Fletcher]

Just because something is copyrighted does NOT automatically mean that every time copyrighted material is used it's an infringement of copyright. A lot of it goes to intent, how the material is used, the type of material, and the extent of the material used. From the images I've seen posted here (i.e., how images are used and how they are presented) in my opinion, they would fall under the fair use of copyrighted material and would not constitute an infringement of copyright. At the very least, the owner of the copyrighted material would have a difficult time proving infringement (at least the images I've seen here).

That being said, if the owner of the copyrighted material brings it to your attention that you've used their copyrighted material, asks you to remove it, and you don't - then they have a legitimate case to prove infringement.

 

[MaxBottomtime]

Here's a great article about Fair Use.
Copyright Fair Use and How it Works for Online Images

 

[Storker]

Just because something is copyrighted does NOT automatically mean that every time copyrighted material is used it's an infringement of copyright.

"Using" and "publishing" aren't necessarily the same thing.

Besides, there's always "fair use". So yes, in principle you're right. But republishing another person's IP is a breach of copyright unless you have a good case for claiming fair use.

And while I don't know the intricacies of US copyright law, in my neck of the woods, you don't have to claim copyright to have copyright. The second you finish a piece of IP, you own the copyright. Registering the copyright may make it easier to go after violators, but registration isn't required to have and keep your copyright. In the absence of registered copyright, proper documentation that you are the originator of the IP is good enough for a court.

 

[Clark Fletcher]

"Using" and "publishing" aren't necessarily the same thing.
And while I don't know the intricacies of US copyright law, in my neck of the woods, you don't have to claim copyright to have copyright. The second you finish a piece of IP, you own the copyright. Registering the copyright may make it easier to go after violators, but registration isn't required to have and keep your copyright. In the absence of registered copyright, proper documentation that you are the originator of the IP is good enough for a court.

I agree with you 100%. But, I'm not disputing whether something is or is not copyrighted. As you pointed out, as soon as something is created, it does by default have copyright protection (even if it isn't designated as such). My point is, you can use material that you know up front is copyrighted (even if it has a copyright stamp on it) and NOT be guilty of copyright infringement if the way it is used falls under the rules of fair use.

 

[Storker]

My point is, you can use material that you know up front is copyrighted (even if it has a copyright stamp on it) and NOT be guilty of copyright infringement if the way it is used falls under the rules of fair use.

Which is a whole 'nother can of worms. There are rather narrow limits to "fair use"

 

[Clark Fletcher]

Which is a whole 'nother can of worms. There are rather narrow limits to "fair use"

Actually, much broader than what most people realize. And, images posted on forums for comment or the benefit of informing or educating the general public clearly fall under the rules of fair use.

I'll give you another example based on my own personal experience. This is well outside the realm of images posted on this forum. But, I offer it as an example of just how far fair use can extend. I have, for over 20 years run a web site that has a series of repair procedures for a particular model of car. Some of the repair procedures therein contain copyrighted material from factory service manuals. However, I have never been approached by the owner of that copyrighted material (the manufacturer of the car) about removing it from my web site. There are several reasons for that. First and foremost, I do not profit in any way from offering that material to the folks who use the web site. Second, even though the material is clearly copyrighted, the information contained in that material falls under FOIA (Freedom Of Information Act for those of you not from the USA). As such, if an individual wants a copy of the same service manuals that are available to the shop technicians, the dealership is required by US law to sell them a copy of the manuals (at basically the cost of publishing the manuals). And, since all of the procedures presented on my web site are for educating individuals on how to fix their cars, the presentation of the copyrighted material falls under fair use. And, don't believe for one second that the car manufacturer doesn't know it's out there. They do. At one time, the name of the web site and the domain name contained the name of the company and model of the car. The company ordered me to change the name of the web site and the domain name under threat of legal action(even though technically domain names don't fall under copyright protection).