Cshel Chicago SEO, PR and Web Development

You should actually read the Terms Of Service Agreement

Posted on 10. Jan, 2008 by Carolyn Shelby.

Someone using the nick “light” popped into the WMR chatroom the other day and asked if he could sue a forum owner for violating his copyright by refusing to remove a post containing his work. After playing a game of 50 questions to ascertain exactly what the issue is and is not, the answer to light’s question is a pretty firm “No”.

The Sitch…

Light voluntarily joined a forum and, by doing so, agreed to the Terms of Service of that site. Then he voluntarily wrote a post and put it up on the forum. Now for some reason, that post is causing him some level of grief (for reasons he refused to share), and he wants the post removed from the forum. He contacted the forum owner and requested to have the post deleted and the forum owner declined. Light then drafted his own Cease and Desist letter and emailed it to the forum owner. The forum owner then banned him. So now, Light is planning to sue the forum owner for copyright infringement.

The Analysis…

There is no copyright infringement here. Read the Terms of Service or Terms of Use on most forums or services where users contribute content and you’ll see that the forum owners tend to like to have the right to re-use, edit, re-purpose, etc. things that gets posted to their site. “But I have automatic copyright protection!” Yes, but only until you agree to give up some of your rights by clicking on the “I have read and agree to the terms….” button. This is why it’s important to READ things before agreeing to them or signing anything.

Example Terms Of Service from a Forum

From WebProWorld’s Legal Notice…
User Submissions Not Privileged
Any material, information or other communication you transmit or post to this website (“Submissions”) will be considered non-confidential and non proprietary. iEntry shall have no obligations with respect to your Submissions. iEntry and its designees will be free to copy, disclose, distribute, incorporate and otherwise use your Submissions and all data, images, sounds, text and other things embodied therein for any and all commercial or non-commercial purposes. You are prohibited from posting or transmitting to or from this website any unlawful, threatening, libelous, defamatory, obscene, pornographic or other material that would violate any applicable law.

I suspect the homemade Cease & Desist Demand didn’t win Light any points with the forum owner either. In general, you don’t email C&D letters. Additionally, (unless you are a lawyer or you’re using a professionally written boilerplate) you don’t write your own C&D letters. A poorly written C&D may as well be scrawled in cheap wax crayon on the back of a sheet torn from a spiral notebook and signed, “Rabid, Litigation-Happy Nut Who Is Too Cheap To Pay An Attorney”.

Remember, C&Ds generally don’t have any teeth anyway. Unless they look and feel like they came from a large, serious company with the means and desire to actually follow through with threats of legal action, Cease & Desist letters aren’t worth the paper upon which they are written. If they’re sent solely electronically they are worth even less.

Finally, Light’s situation should serve as a reminder to everyone to not post things online that they might regret later. On the Internets, things have a way of not ever going away.

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Does RSS equal implicit permission to reprint?

Posted on 26. Mar, 2007 by Carolyn Shelby.

There’s a fun debate happening right this very second on WebmasterRadio.fm chat where people are arguing over whether or not the existence of an RSS feed is the same as implicitly granting permission to anyone and everyone to republish your work.

Personally, I’m on the fence on the morality of the issue. It’s wrong and bad to scrape, but I don’t see how you can prevent scrapers from taking your content and running it. You may as well acknowledge that the practice occurs and use it to your advantage by seeding your feed with some back links to your site(s). You can also limit your feed to just snippets of the full articles or even just headlines to make your content less desirable to scrapers.

To try to DMCA every site you catch reprinting your work is an exercise in futility, and you’d have a really tough time suing anyone over it unless:

1. Your content is being reprinted/republished by a legitimate/large, money making website, they are claiming they wrote it, and you can prove monetary damages.
2. You’re a bored attorney and have lots of time to kill.
3. You have a relative who is a bored attorney and has lots of time to kill.
4. You’ve got deep enough pockets and a deep enough hatred for a single, particular violator and want to go to war on principle, and you don’t care that you won’t actually win any money (because you can’t squeeze blood from a rock).

Really, unless situation #1 is applicable, it’s pointless to pursue.

Ultimately, I think your best bet is to put all the appropriate copyright claims and notices and restrictions on your site and in your TOS, and then take the proactive measure of sprinkling some back links into your content. Also, not providing the full articles in the feeds, but limiting the feed to just snippets or headlines might help, too.

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Changing the WHOIS Service isn’t necessary

Posted on 23. Mar, 2007 by Carolyn Shelby.

The Generic Names Supporting Organization’s final Whois Task Force report (something like 2 years in the making) recommends that ICANN restrict the amount of contact information publicly available via the whois service, and completely do away with technical and administrative contacts in favor of an “Operational Point of Contact”, or OPoC, in an effort to minimize domain related scams like phishing, identity theft, fraudulent renewal scams, etc.

“Protecting the identity of the registrant…” 

While the intent is noble, I have to wonder exactly what this is going to accomplish that private domain registrations don’t already cover? Aside from sort of ruining the private registration business in general. If a registrant is truly concerned about protecting their identity and their contact information, private domain registrations are a perfectly good way to do it, are already available, and are administered by private companies (rather than some pseudo-governmental agency).

If you’re not doing anything illegal, immoral or fattening with your domains, then you probably don’t have to worry about anyone using your whois data to track you down and sue you.

If you *are*, then you ought to have a private registration. Period. I don’t recommend using bogus whois data because I secretly hope ICANN (or someone) starts enforcing the existing rules about that being a bad-bad-bad offense and revokes registrations from people who are caught doing it.

Also, whether this new recommendation is enacted or not, the people who want to sue you will still be able to get their hands on your registration data, they just might have to pay their lawyers for a couple more hours of work (and then turn around and take it out of your ass when they finally get a hold of you).

Eliminating the Technical and Administrative Contacts

Switching from Admin and Tech contacts to an OPoC is all fine and good, but really, it’s not going to alleviate the issue of fake whois data because no one enforces the rules about NOT using fake whois data. I checked in my usual domaining haunts and no one had any concrete evidence anyone has ever lost a domain for using fake data. There were two third hand accounts of someone knowing someone who knew someone who had their domain revoked, but nothing that could be substantiated.

What it will possibly accomplish is clarify the purpose of the contact and hopefully businesses/individuals who are not well versed in the terminology will better understand the role the OPoC plays in their domain registration and will use better judgement in selecting the responsible party.

Also, the recommendation doesn’t really address how the registrar is going to verify that the designated OPoC *knows* he’s been named. If correspondence is no longer being sent to the registrant and is only sent to the OPoC (as recommended), you’re really putting a LOT of trust into this contact person. Even assuming the OPoC info is real and not completely fake, the system still breaks just as badly as before if that contact can’t be gotten in touch with, or forgets to renew their P.O. box, etc.

So… what’s to be done?

Ultimately, I think we already have mechanisms in place to protect our privacy if we choose to utilize them, and the means to address the bogus whois data also already exists, but needs to be enforced. Serious, legitimate registrants will either opt for privacy protection or just stop using fake info if they care about not losing their domains.

The system is just a little broken, not in need of an overhaul. Just enforce the rules and let the private registration companies do their thing.

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