Posting Emails to Website - Sender claiming Copyright Infringement, need advice.

[Kaskade]

Hello,

I've been working with a hosting provider for about two years and recently we had an affiliate that was committing affiliate fraud (which is a whole different issue, I'll go into detail if you desire).

The point is that the owner of the company terminated the affiliate's account for violating the Affiliate Terms of Service and refused to pay out any affiliate commissions based upon the violations of the Affiliate Terms of Service.

The affiliate posted some defamatory information on their website about the company I'm working for and as such the owner posted on his personal blog a lengthy post about the affiliate (by his name), the company the affiliate works for (the site that was being used to commit the fraud), and then the emails between the affiliate and the company.

The emails were actually between the individual and our support helpdesk and as such numerous individuals on our end were able to read the conversation and respond as necessary. Due to the individual's actions and threats in those emails the owner of the company felt it was important to make the contents of those emails public to inform others about his actions and lack of ethics to hopefully help prevent him from committing affiliate fraud with other hosting providers.

The said individual has served the owner with a DMCA notification stating that the emails are copyrighted and as such the owner had no choice but to bring down the emails for the mandatory 10 to 14 days and the individual is threatening legal action. They actually went so far as to put on their site that the review on our company has been removed "Pending current litigation with (our company)."

The owner believes that posting of the emails to be fair-use and the emails do not contain any notices about confidentiality or copyright although the owner does realize that copyright doesn't have to be expressed to apply.

The feeling that the owner as well as myself get is that fair use does indeed apply to this particular instance and that the individual is simply doing their best to get anything negative about themselves pulled off of the internet (even though it's factual and is not defamation) and is using Copyright as a guise to do so.

What I am worried about is that the owner may be mislead about copyright and fair use and I really would hate to see him/the company sued which could lead to the end of my position at the company.

I'll provide any more information as needed but due to the legal threats and the inherent internet basis of these issues I'm not going to reveal specific names of individuals or companies in an attempt to keep this out of any court proceedings should that come to pass.

I really do appreciate any all time that you take to read over this post and give me any advice that I can pass to the owner of the company.

 

[army judge]

Counsel has been retained to represent the company.

Too many cooks spoil the broth.

You'd be wise to follow the advice of current counsel.

If you no longer have faith in your counsel, dismiss him/her and retain another one.

Sent from my iPhone using Tapatalk

 

[Kaskade]

Ummm what? Perhaps you didn't read the entire post as no counsel has been retained hence why I'm asking advice here... Trying to get a grasp on some of the more basic nuances of this issue.

 

[FlaRiptide]

I'm not an attorney, yet I can see that the legal threats are nothing than blowing smoke. The emails are not copyrighted, that is ridiculous. If the individual wanted to keep his words private, he should not have used email!! Email is not a secured means of transmitting information. As long as everything within the email posting said by YOUR company is true and factual, it is not defamation, slander, or anything else.

Post freely and don't correspond with this jerk of an individual. If he wants to hire an attorney, let him. It will be wasted money for him.

 

[Kaskade]

Yeah, really looking for some feedback from an attorney who has dealt with this sort of thing or that would be interested in just giving some very basic advice. Really it comes down to whether the owner should obtain counsel or if the threats are baseless.

 

[FlaRiptide]

Though I too was perplexed by Army's post, his replies are nearly spot on 100% of the time and he is indeed the real McCoy. Perhaps he will see this and re-post.

Though I myself am 99.9% confident that the threat has no merit. Why even worry until you are contacted by an attorney? No need to get all uptight and hire counsel until necessary.

I can pretty much assure you now that it won't be necessary.

 

[FlaRiptide]

I did a little research and found the following, and thus common sense here does not outweigh the law!!

Emails are subject to copyright. There is no specific copyright category for emails. Like webpages, the copyright in an email is determined by its content. For example the text in an email would be treated as a literary work, images as artistic works, sounds as sound recordings and animations as films etc. Email attachments are also subject to copyright, which may be different and separate to the copyright in the body or text of the email. The Copyright Act considers sending emails as an "act of communication".

The issue with emails is that they are easy to copy and forward to many people. This reproduction and/or distribution is normally an exclusive right of the copyright owner and to do either without the permission of the copyright owner would be a breach of copyright. However, given the widespread use of email as a form of communication, it would be impractical to require a person to have the copyright owner's permission every time they wished to forward an email.

Printing, copying or forwarding emails is generally not considered to be a breach of copyright. However, you should carefully consider the nature of the content of email and whether it is appropriate to forward it, as other legal issues, such as privacy & confidentiality, also apply. The very nature of emails makes them easy to circulate and you will have no control over where your email may ultimately end up and who might see it!

Thus, it would appear to be in the best interest of your employer to remove the emails from the company website.

 

[Kaskade]

I've come to the same conclusion but I was looking for the advice so I could forward it on to my employer. I was wondering if it being a communication entered into a staff helpdesk had any bearing and whether the content of the emails would determine what was fair use or if it was simply a no-no off-limits copyright issue.

 

[FlaRiptide]

Again, I can't speak as an attorney and hopefully someone else will step in. Yet, I get the belief that this is a grey area. In a courtroom I compare this as seeing two sides throwing pepples at each other. Only the judge would be able to declare the victorious side.

That is why I would suggest taking down the offensive emails and be done with it. Is it so important to your employer to keep them up? If not, he may best avoid any headaches of legal recourse by simply removing the emails.

My layman's interpretation is that by the individual emailing the Help Desk, that email was essentially for the eyes of the Help Desk personnel only. By the employer posting these emails on his website he subjects himself to the possibility of being hit with privacy issues from the email originator.

One last thought. It probably depends a lot on how the email is used. If you were to copy all my posts from this website and post it elsewhere it is probably a violation of copyright. Yet if I were to sue you, it would probably be be thrown out of court. Yet if I could show somehow that you intentionally posted it to do me harm and it indeed did me harm, then I would have a much more likely chance of winning my case against you.

Now if only a real attorney would chime in and set us both straight!!

 

[Kaskade]

We've already considered the privacy policy and aspects and that's not what we're worried about currently.

 

[Michael Wechsler]

We've already considered the privacy policy and aspects and that's not what we're worried about currently.

The copyright issue will be a challenging one to deal with but the quick answer is, yes, emails can have copyright rights. For example, if I write a poem and send it to you, 24 verses, that is a work of authorship. In this context, there are questions of (a) implied rights, (b) the rights acquired by the web site owner for even support emails, and (c) fair use issues of how much of an email is used and more.

But there is one more issue - whether the affiliate's posts were defamatory and whether the court will entertain his claim of copyright infringement when the affiliate himself may have prompted that conduct. In addition to personalities not wanting to find a cause of action exists, there is also the concept of the "unclean hands" principle where a court will not entertain a claim for a problem that was caused by the plaintiff. How that might apply here is uncertain.

 

[Kaskade]

The ex-affiliate sent some really silly demand emails with some ridiculous requests and after reading them I've personally come to the opinion that he's just trying to bully us into dropping the content to allow him to continue getting away with what he's been getting away with.

We'd really like to be able to post the emails as they go a long way towards backing up the posts about him, his actions, and his fraudulent activities.

The emails were not posted purely to be damaging but to back up statements on the site. He's claiming copyright where as the emails are purely along the lines of "You'll pay me or I'll use all of my invested SEO on the site to damage your company and push your potential clients to other providers."

I think we're going to get a consultation with an attorney to see what they think when provided with all of the emails, posts, etc. What kind of attorney should we look for?

 

[Kaskade]

Thank you everybody for taking the time.

 

[Michael Wechsler]

The ex-affiliate sent some really silly demand emails with some ridiculous requests and after reading them I've personally come to the opinion that he's just trying to bully us into dropping the content to allow him to continue getting away with what he's been getting away with.

Typically, this is what occurs when it's a lot of "puffing" instead of really intending on suing. Can't be 100% certain but it's just typical.

We'd really like to be able to post the emails as they go a long way towards backing up the posts about him, his actions, and his fraudulent activities.

The emails were not posted purely to be damaging but to back up statements on the site. He's claiming copyright where as the emails are purely along the lines of "You'll pay me or I'll use all of my invested SEO on the site to damage your company and push your potential clients to other providers."

You can tell him that if he's posted comments that claim the contents of the emails, then he has made the contents of the emails public. I'm not giving you an endorsement to publicize them but I can't imagine any court, ever, entertaining copyright protection. That's in addition to his inability to use the court to sue for copyright infringement if his defamatory comments (wrongful) were the reason for the alleged infringement as rebuttal. He doesn't win either way.

I think we're going to get a consultation with an attorney to see what they think when provided with all of the emails, posts, etc. What kind of attorney should we look for?

An intellectual property / Internet attorney should be able to assist (which is what I do and how I can state with assurance I know what I'm talking about) or a general practitioner may know who has experience with defamation cases. You can also use our free case review as well. Good luck with whatever you choose to do and it sounds like you've handled the situation very well thus far.

 

[Kaskade]

We went in and sat down with an attorney and showed them everything we had and his general opinion was that the other party was simply making baseless threats in order to get us to do what he wanted. Ultimately the attorney told us that if they decided to file a suit that it could ultimately become costly for us even if we are in the right.

He said it's up to us as to whether we want to swallow our pride and simply give him what he wants to bring this to an end but he also pointed out that even if we do that he could still ultimately file suit if he wanted.

Once all is said and done I'll be more than happy to post up the specifics/details... That would be 1 year from the original issue for defamation as per the statute of limitations.

Thanks again.