does posting to a forum grant an implied irrevocable license to use the content

[interweb]

Premise:
Consider an Internet discussion forum such as this one.
Also consider that unlike here there is no User Agreement or Terms of Service that stipulates which rights the poster grants to the operator of the forum upon forum account creation. The operator could be an individual or a corporation.

Question:
Does a user of an Internet discussion forum implicitly grant an irrevocable license to the forum operator for the content that the user generated on the forum. Specifically, in the absence of any agreement, does the user have the right to demand that the operator removes post the user made.

EDIT: Let me rephrase that last question, obviously the user can demand whatever, the question is whether the operator is required to comply?

 

[mightymoose]

Sounds like a homework question.
In short, posting to such a forum does in fact give the owner of that forum or anyone else who views the content to do what they wish with it. The information is in public domain. Upon making such a post you have absolutely no control of what happens with that information. You give up control by being in the public domain.

To answer your question directly- yes, the user making the post most certainly may demand that the content be removed from the forum, but the owner of the forum has no obligation whatsoever to comply.

 

[interweb]

Wasn't a homework question, there's a lively discussion about it going on at TheAdminZone.com, search for "Banned members say remove my post" since I can't post links here yet.

Interesting reply though, I was under the impression that unless the creator of content specifically states that such content is transferred into public domain no such transfer actually happens. One would think that just because something is exposed to the public doesn't automatically make it public domain.

Your answer seems to imply that anything posted online is automagically transferred into the public domain and how does that relate to copyright being assigned on creation of content whether it is noted as such or not?

 

[mightymoose]

There are plenty of things on the Internet that are in public domain but have copyright protection. User posts in a discussion forum have no such protection. The user gives up control of the information the moment the information is posted.

If the person writing the message did not want to lose control of the information, the author should not have put it in public domain. The author could instead use a forum that belongs to himself which would allow him to control the information, or the author could use a forum which allows the user to remove information.

Again, the owner of the forum has no obligation whatsoever to comply with the request to remove the information, but would be wise to do so if there were legitimate copyright issues.

 

[mightymoose]

I just read over the terms a user must agree to when registering on that site- it seems quite clear that users give up any rights to the information they post.

"Although this Discussion Forum does not and cannot review the messages posted and is not responsible for the content of any of these messages, we at the Admin Zone reserve the right to delete any message for any or no reason whatsoever. You remain solely responsible for the content of your messages, and you agree to indemnify and hold harmless the Admin Zone, Jelsoft Enterprises Limited (the makers of the bulletin board software), and their agents with respect to any claim based upon transmission of your message(s). We at this discussion forum also reserve the right to reveal your identity (or whatever information we know about you) in the event of a complaint or legal action arising from any message posted by you.

Use of the site is at the discretion of the Administration of the Admin Zone, and that any use may be terminated by the Administration at any time.......

The user agrees as a condition of registering at the Admin Zone to be truthful in regard to all information given during the registration process, to use the site as per the instructions, not to disclose his password to others for use, and that the site has a license (permission) for use of anything the user submits or posts to the site."

 

[interweb]

I just read over the terms a user must agree to when registering on that site- it seems quite clear that users give up any rights to the information they post.

Sorry I wasn't completely clear about this. Forum admins are discussing the issue @ TheAdminZone.com but the topic as such does not relate to TheAdminZone since they do have a TOS. The question is what happens on a forum that doesn't have an explicit TOS.

 

[mightymoose]

I was under the impression that unless the creator of content specifically states that such content is transferred into public domain no such transfer actually happens.

That would be very unrealistic. As a user in the forum pointed out, people who call in to radio broadcasts or those who write to the editor of the newspaper, etc. need not make such a statement, and need not receive a warning. They are operating in public domain and have the choice to make their statement or keep quiet. The fact that you engaged in the public contact is all the consent anyone needs. Otherwise, enjoy the privacy.

[

One would think that just because something is exposed to the public doesn't automatically make it public domain.

One should not think that. Making statements in public relieves you of any expectation of privacy. Yes, there could be copyright issues, but the matter being discussed in the forum is not copyright related.

Your answer seems to imply that anything posted online is automagically transferred into the public domain...

Pretty much, yes... though it would depend on the nature of the website and any agreements made between the parties regarding privacy and control of the information. No agreement means no expectation of privacy, and no expectation to retain control.

 

[mightymoose]

Sorry I wasn't completely clear about this. Forum admins are discussing the issue @ TheAdminZone.com but the topic as such does not relate to TheAdminZone since they do have a TOS. The question is what happens on a forum that doesn't have an explicit TOS.

The statements are not necessary in a TOS, nor is a TOS even required as it is still public domain regardless. The statements in a TOS just make it a lot cleaner and easier to defend should some crazy come along and threaten legal action. The TOS makes it clear that the user gives up control, but absent a TOS the user would still have to show that some special consideration was made or was implied. These public forums are pretty well recognized as public domain and are not any different than a bulletin board at the grocery store or elsewhere. A user can certainly whine and complain about messages not being removed, but absent a copyright issue they would not likely have any success even without a TOS.

 

[interweb]

Thanks for taking the time to explain it.

 

[Michael Wechsler]

Wasn't a homework question, there's a lively discussion about it going on at TheAdminZone.com, search for "Banned members say remove my post" since I can't post links here yet.

Interesting reply though, I was under the impression that unless the creator of content specifically states that such content is transferred into public domain no such transfer actually happens. One would think that just because something is exposed to the public doesn't automatically make it public domain.

Your answer seems to imply that anything posted online is automagically transferred into the public domain and how does that relate to copyright being assigned on creation of content whether it is noted as such or not?

I'm a member of that site, lol. Tell them I said hello. Do they really not have a terms of use there?

The post does not become a part of the public domain. What it does do is give a right and license of the website owner to publish that content. The public domain means that anyone can copy and use that post - which is not the case.

Instead of taking a legal approach, why not taking a rational approach? If there is an issue, you can contact me and perhaps I can help broker some arrangement, which I doubt is necessary since those guys are usually quite reasonable IMHO.

 

[interweb]

I'm a member of that site, lol. Tell them I said hello. Do they really not have a terms of use there?

Not sure how it is that the both of you think there is an issue with TheAdminZone (TAZ). I am pretty sure I said that we are discussing this issue over at TAZ just because that's where a bunch of admins .... well ... discuss forum issues. TAZ has a TOS, the issue we were discussing pertains to a different forum where they don't have a TOS.

The only reason I even brought TAZ up is to demonstrate that this wasn't a homework problem but an actual real world discussion that has implications for forum operators.

If everyone were to take a rational approach lawyers would be out of business.
The question was really to get to the bottom of the legal framework that covers posts to a forum in the absence of an explicit agreement.

The post does not become a part of the public domain. What it does do is give a right and license of the website owner to publish that content.

Everyone is in agreement that the forum operator has the right and license to publish. The matter debated is whether that right and license is implied to be irrevocable in the absence of an agreement that explicitly states that it is irrevocable.

I am actually a bit surprised that mightymoose and you disagree as to whether it is public domain. I am sure the crowd at TAZ will be watching this space closely to see how this will turn out in the end.

 

[army judge]

Interweb, I defer to The Professor.

He's a respected, noted, and revered expert in copyright, patent, and Internet law; among other things.

He has written many scholarly articles on these topics.

I defer to his wisdom, knowledge, expertise, and insight on these topics.

Not sure how it is that the both of you think there is an issue with TheAdminZone (TAZ). I am pretty sure I said that we are discussing this issue over at TAZ just because that's where a bunch of admins .... well ... discuss forum issues. TAZ has a TOS, the issue we were discussing pertains to a different forum where they don't have a TOS.

The only reason I even brought TAZ up is to demonstrate that this wasn't a homework problem but an actual real world discussion that has implications for forum operators.

If everyone were to take a rational approach lawyers would be out of business.
The question was really to get to the bottom of the legal framework that covers posts to a forum in the absence of an explicit agreement.



Everyone is in agreement that the forum operator has the right and license to publish. The matter debated is whether that right and license is implied to be irrevocable in the absence of an agreement that explicitly states that it is irrevocable.

I am actually a bit surprised that mightymoose and you disagree as to whether it is public domain. I am sure the crowd at TAZ will be watching this space closely to see how this will turn out in the end.

 

[mightymoose]

For the record, I use the phrase "public domain" rather loosely- I am sure it legal terms it is specifically defined one way or another.

My only intent was to state that with a TOS or not, once a user makes the post to the website they pretty much relieve themselves of any control of the posted information without some kind of explicit recognition by the website owner that the user retains control (which is probably quite rare).

The TOS serves to clarify all these issues, but there is not any requirement that I am aware of that a TOS even exist. It is certianly smarter to have one, but not required.

 

[auraslip]

Hey guys. I'm new, but I represent a very concerned electric vehicle forum (endless sphere).The owner (who took no part in the day to day runnings of the forum) recently sold the forum toa large company (social knowledge) that buys forums and "monetizes" them.

Basically, us users are revolting against this attempt to use our posts to turn a profit. We are very ideological in the belief of our efforts being an open source movement to help the electric vehicle revolution. We've also seen the other forums they've purchased destroyed, and we don't want that happening to us.

We are currently trying to convince the new owners to sell the site back to the members. And this is where the subject of deleting our posts and copyright comes up. In other forums they've taken over, they've locked members from deleting their posts. Which would put us in a bad place to negotiate.

BUT, the current TOS agreement says nothing about irrevocable license to use our content. So, what we'd like to find is a legal way to force them to completely remove all of our posts. This would essentially destroy all value in the forum, and knowing that we could do this would put us in a powerful position to bargain for our community.

By accessing "Endless-sphere" (hereinafter "we", "us", "our", "Endless-sphere.com", "endless-sphere"), you agree to be legally bound by the following terms. If you do not agree to be legally bound by all of the following terms then please do not access and/or use "Endless-sphere.com". We may change these at any time and we'll do our utmost in informing you, though it would be prudent to review this regularly yourself as your continued usage of "Endless-sphere" after changes mean you agree to be legally bound by these terms as they are updated and/or amended.

Our forums are powered by phpBB (hereinafter "they", "them", "their", "phpBB software", "phpbb", "phpBB Group", "phpBB Teams") which is a bulletin board solution released under the "General Public License" (hereinafter "GPL") and can be downloaded from phpbb. The phpBB software only facilitates internet based discussions, the phpBB Group are not responsible for what we allow and/or disallow as permissible content and/or conduct. For further information about phpBB, please see: phpbb

You agree not to post any abusive, obscene, vulgar, slanderous, hateful, threatening, sexually-orientated or any other material that may violate any laws be it of your country, the country where "Endless-sphere.com" is hosted or International Law. Doing so may lead to you being immediately and permanently banned, with notification of your Internet Service Provider if deemed required by us. The IP address of all posts are recorded to aid in enforcing these conditions. You agree that "Endless-sphere.com" have the right to remove, edit, move or close any topic at any time should we see fit. As a user you agree to any information you have entered to being stored in a database. While this information will not be disclosed to any third party without your consent, neither "Endless-sphere.com" nor phpBB shall be held responsible for any hacking attempt that may lead to the data being compromised.

I had to strip all URLs from this TOS

Any thoughts would be much appreciated!

 

[Michael Wechsler]

Probably best to start your own thread but here are my questions to you that I think you should answer even before the copyright question - and sorry to hear about the troubles you're having.

(1) How is anyone supposed to sell anything to "the members" or "the community?" Is there a corporation or non-profit organization that represents the whole? Without it, this is all conceptual and nothing can be done practically.

(2) Is there an immediate problem and what exactly is your goal?

I don't know what an "open source movement" is with regard to a live forum. As opposed to code which sits there and costs nothing, a forum - especially a large one - has costs. Someone has to bear the costs and time required to run it (let me tell you, far more time consuming when the community grows.) Let's say you mean that you want revenues above expenses to remain in the community - is anyone making a profit now or for the foreseeable future? If not and if you have a dialogue, then discuss it before destroying it. Replacing posts after you get what you think you wanted is not as easy as putting glasses back into the cupboard - trust me. And regarding the "community" running it - you'll have to create a non-profit organization and figure out who will be able to do what (e.g. be on the board, run the show, etc.) Hopefully you'll be able to figure that out without too much infighting.

(3) Implied copyright in your posts - very good question. When I last looked, there was no federal court that answered that question specifically. Does anyone want to take it to court and pay for the right to decide who is right and who isn't? I could probably surmise as to an answer but that's not really going to solve your real problem, is it?

(4) I looked up the forum and believe I have the right domain. WHOIS says it's owned by Mohave Media LLC - were they sold again? Are you sure that the forum was purchased by Social Knowledge? I'm not going to pass judgment on anyone but do you have the right facts?

So in short, I can fully sympathize where you're coming from. But I'm not sure what "leverage" any of you have since the end result right now is that all you'll do is cause the new owner to lose his investment and you guys will be out a valuable repository of information, forever destroyed.

Let me ask this -- if the founder (who got paid) had let the forum go without participating... why did all of you put all this trust in a person who you admit didn't have much of an interest? All this talk about taking back what you believe you have a right to own should have been raised with the actual owner of the forum long ago if it was important - would you not think so?

PS - I need to get a new bike which I plan to use regularly. I hope the forum remains around for a long time.

 

[auraslip]

Thank you for the well though out reply and great questions.

1) Currently a few of more well respected member are in negotiation to purchase the forum. Specifically a well liked and respected vendor, which despite his flawless reputation I still find a bit worrying. However, the plan is to have him host the forum until we can establish a joint ownership or non-profit corporations. We implicitly trust him to do the right thing, and his reputation is something I personally will stand behind.

Believe me, I do worry about the infighting creating such a organization will foster (just having completed American history up till the civil war.) However, the moderators and admin that have been active in the community have been nothing but committed to the open source ideal and I trust they will do the right thing even if it takes awhile to figure out just what that is.

2) Many people see the problem as "monetizing" the forum. They cite many examples of it being done improperly and the forum dying an undignified death. I don't so much mind ads, and have no delusions about the costs of hosting a large forum. We've had a few people offer to host it at least temporarily, so it's not an issue now. Of course the biggest issue is fear of change. Especially of a "middle manager" type who doesn't hold the same beliefs taking over a community they're not a part of. Tech people hate middle managers as it is! I run a business building and importing parts that I sell on this forum, as do many others. Imagine the day when "preferred" vendors get me bumped off, or critical reviews get removed. Many people simply don't want their posts being used to sell the low quality products they're often very critical of.

It's a very real fear of change. But fundamentally it's an ideological issue; an open source software forum would have similar issues if purchased by outside investors intent on making a quick buck.

3) That's the heart of the issue. Let me come back to that.

4) The deal was announced recently, and all relevant data provided by the new owner (Trevor). He owns both Mohave media and Social Knowledge. Sorry I can't link to the relevant threads. Believe me though, there is plenty of anger directed at the old owner, who has seemingly vanished into thin air leaving the new owner high and dry.

Again, back to the issue at hand, the "nuclear option" of users getting their posts deleted permanently by legal means. This would essential destroy the forum if just the tiny fraction of active users managed to do it. Since a minority of users are the ones posting majority of valuable information, it would bring google traffic down to nothing. And since admins have started backing up the important threads, it would be trivial to start a new forum under a new flag. This in turn would drop traffic and ad revenue to nothing. Essentially, making the endless-sphere a worthless investment. This nuclear option puts us in a great bargaining situation.

So my thoughts and questions are:

A) How are the new owners (and their ISP) required to respond to C&D and DMCA take down requests for forum posts?

B) What would be the most effective way to send them? Pool our resources to afford legal counsel to get them removed as a group, each user individually requests all of their posts to be removed using one request, or each user individually requests all of their posts to be removed using a request for each post? The latter would be a flood that they couldn't handle, but I'm not sure if it's the correct way to go about it.

C) Even if the law regarding posts themselves are on shaky ground, the forum hosts a large number of photos, which I understand are much easier to have removed. I myself probably have hundreds on the forum that I've taken myself. Just removing MY photos would take a lot of man hours. A hundred or more users though? It would be near impossible. Especially when many aren't actually hosted, but merely embedded using third party sites.

Anyways, thanks again for your response. I hope I didn't leave any vital information out, or show my ignorance of the law too much!

 

[Michael Wechsler]

Thank you for the well though out reply and great questions...However, the plan is to have him host the forum until we can establish a joint ownership or non-profit corporations. We implicitly trust him to do the right thing, and his reputation is something I personally will stand behind. Believe me, I do worry about the infighting creating such a organization will foster...

You're welcome. What's the rush? Is the forum being torn down and replaced overnight? The transaction is done. How you deal with it should be the next order of business. Why not first create the non-profit and figure out who owns it before deciding who should have any leverage in the community before answering the questions? You can create a non-profit organization very quickly and have the non-profit purchase the company.

Again, back to the issue at hand, the "nuclear option" of users getting their posts deleted permanently by legal means. This would essential destroy the forum if just the tiny fraction of active users managed to do it. Since a minority of users are the ones posting majority of valuable information, it would bring google traffic down to nothing. And since admins have started backing up the important threads, it would be trivial to start a new forum under a new flag. This in turn would drop traffic and ad revenue to nothing. Essentially, making the endless-sphere a worthless investment. This nuclear option puts us in a great bargaining situation.

What you're doing is destroying the value of his purchase and making the site unmarketable to anyone other than this good samaritan vendor (who will likely indirectly generate more sales by saving the day.) So are you guys willing to donate enough money to liberate the forum you so staunchly believe in for the same purchase price as the new owner? I don't want to sound cynical but if you want to talk about fairness, let's call it like it is. (And the only guy to make money isn't in the equation.) The "leverage" -- see my next response.

A) How are the new owners (and their ISP) required to respond to C&D and DMCA take down requests for forum posts?

C&D is nothing more than a warning that may have consequences in court but does nothing until damages are awarded. A DMCA takedown notice is sent the same way it always is (and I have examples here.) I can't tell you how the owner or anyone else will react if a reply is filed by the new owner.

So what happens if not everyone agrees with the potential new vendor owner - are you guys going to be sending takedown notices then too? You have a lot of housecleaning left to do first. As I said, be careful of what you wish for. It sounds like you guys are prematurely and hastily burning down the castle without first thinking about where you're going to live.

 

[Michael Wechsler]

I saw a deal was announced. I assume this is of no interest but if you really want to make sure the "right thing" is done, perhaps you'll consider my thoughts. If I was an arbitrator, these would be my conclusions. Note, the information I have is based upon the very limited knowledge I have of the parties and the issue. However, I do think I have an appreciation for what happened and it's not uncommon.

The deal was announced recently, and all relevant data provided by the new owner (Trevor). He owns both Mohave media and Social Knowledge.

After performing a quick search available to anyone with a web browser, I have no idea how anyone could assume that these two companies are owned by the same persons. They are located in two different states. With regard to Social Knowledge and it's reputation, what exactly is the problem - that they run communities and make a profit? When I started my aquarium I had a very good experience at one of their communities (Aquarium Advice). Unless you can point me to something "evil", I'd say that the community at your enthusiast site seems to be far more dangerous than any community I've seen at Social Knowledge, whose sites are rather well run from personal experience.

1) Currently a few of more well respected member are in negotiation to purchase the forum. Specifically a well liked and respected vendor, which despite his flawless reputation I still find a bit worrying. However, the plan is to have him host the forum until we can establish a joint ownership or non-profit corporations. We implicitly trust him to do the right thing, and his reputation is something I personally will stand behind.

I was curious to see whether the "right thing" was done at the site. Honestly, I'm very disappointed. From a distance, this sounds more like mob mentality that did something which, upon further observation, makes no sense at all and may even further deteriorate any sense of "open source trust" you once had with a "disinterested" owner. It's the rioting in the UK taking place in a virtual space leaving behind carnage. I'll explain.

The new owner of the site has a built in bias as a vendor. I can appreciate the difficult position he's in between being someone who cares about the community and ostensibly about doing the right thing. I don't know him personally, etc. But here's what I saw from his remarks and those that followed:

Trevor's plan included monetizing the endless-sphere site in such a way that it could generate revenue and thus pay for upkeep and upgrades as well as pay back his investment. There was awareness that this would be offputting to some of the core membership, but he believed that with careful consideration of tasteful advertising and vendor sponsorships it could be made to work to the overall benefit of the community.

What exactly is offputting about this statement? It sounds very reasonable. The expenses of upkeep had to be paid. Is it terrible to allow him to take a small "profit" which represents the work he's done to keep this valuable resource running? What is the "community" concerned with being saved from? From what? From whom? As per the above, it looks like the community was completely wrong about the buyer.

Core members objected to the idea that their content contributed for free in the spirit of sharing ebike knowledge would be used in the context of ad generation to the benefit of unaffiliated companies. Others were upset that the content could have been sold in the first place. Many members were threatening and prepared to delete all of their posts so that their contributed IP could not be commercialized. The reaction grew in intensity, and the discovery of unrelated forums hosted by Trevor's friend did not help.

• Did any core members, such as the latest new owner/member/vendor, strongly insist that nobody should fear since the new owner seemed reasonable and amenable to talking about best steps?
• The members could swear up and down that their IP shouldn't be "commercialized" but who is paying to keep the site up and running? If there is no money coming in, the site goes down.
• So what is the problem - that "unaffiliated" companies might be able to make some money but "affiliated" companies have a free pass? I don't know what this means.

KnightMB who had received the money had disappeared.... Through a flurry of weekend activity, a compromise solution was reached in which Trevor sold the site to Justin_le at a significant loss, under terms in which Justin guarantees the content is not to be used for generating advertising revenue. This transfer has now been completed in full.

So the end result was that the "community" forced a pressure sale:

• The affiliated vendor/new owner: purchased a forum below market value
• The good faith purchaser: took a huge loss without having done anything wrong
• The seller: left the scene with the money and is forgotten

What should be done for the guy (Trevor) who seemed, after reflection, to have good intentions? The mob tore him down quickly and left him with a huge loss. Let's look at some comments to see what will happen in the aftermath.

Again thank you Justin. It really is an outstanding thing that you have done. As for reimbursement. I'm pretty sure Mr Justin's business will pick up as a result of this. Karma is one lovely lady if you treat her right, and what Justin has done most definitely scored him some points from the ol girl. I know where any of my future ebike needs will be ordered from, that's for sure.

So this was just selfless act with an unforeseen unquantified benefit? What is this member trying to say - that no advertising is needed by the new owner since the members will patronize his establishment by virtue of ownership? I'm not sure. Perhaps I'm not appreciating the issue from my limited knowledge but what great thing was done here?

IMHO, from the limited facts of which I am aware, the party to be reimbursed is the only innocent party here who suffered a significant loss. If anyone is at all concerned about "karma" and a fellow human being taking a huge loss despite best of intentions, perhaps the money generated from any commercial activity (or donations) could be used to help the truly wronged party be made somewhat whole. After all, if the community wants to buy its freedom (from Knight or Trevor) then the community should pay what it costs to do so.

Why didn't everyone wait a short time period to create a nonprofit organization as I suggested? I have no reason to believe Justin won't do the right thing but the current legal situation makes it more difficult to accomplish after he has made a quick purchase. What was the rush, exactly? Danger of being converted into a commercial site within hours? Please... In short, legally, the new owner is the sole sponsor of the forum. None of the members of the concerned community legally have the equal access and opportunity that all of you would have had if a true non-profit that had purchased the site. As a result, the representatives of the community could have governed the site from the start. Are there any plans to even create such an entity? Does anyone care? How will the "community" fund itself to pay back Justin, the new owner? There is a lot of naivete in the community. I don't know what will happen but this is now a new set of challenges for your "open source" community to deal with. Be careful of what you wish for.