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Copyright VS Terms of service

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justalayman

Senior Member
that is what I say.the site can "own" the "posting on the site".

cannot change who created it.

Can not own the creation.

can have only rights on it.

those rights that were transferred.

when someone posts on a web site,the only rights one surrenders/transfers are ownership to the post he made
a creator does not necessarily have any rights as the author. (see my amended previous post)

and, depending on the TOS, the person posting can easily (and in most cases does) grant a license to the site. The terms of the license are agreed to when accepting the TOS of the site.

as to transfer of the copyrights themselves, as I said previously, I do not know if such an agreement in a TOS is adequate to transfer the rights. If it is, then yes, the rights are transferred upon posting them. If it isn't, then it can't.

I see no reason there cannot be such a transfer of ownership agreed to. I just don't know if you can have a blanket release or if it must be specific to any particular posting or some other division of the overall collection of the individual posters postings.
 


justalayman

Senior Member
john39;2858395]that is what I say.the site can "own" the "posting on the site".
cannot change who created it.
nobody said it could and is irrelevant anyway.

Can not own the creation.
not true

can have only rights on it.
not true

those rights that were transferred.
true (and never argued against)

when someone posts on a web site,the only rights one surrenders/transfers are ownership to the post he made
not true.
 

xPreatorianx

Junior Member
The premise of your argument is false.Even if one reads what you quoted,one can not reasonably conclude that the summary of TOS means ""if it's on this site no matter what we own it".

Read it again
I didn't copy and paste the entire TOS. But it pretty much does say that in legal terms.

But this thread isn't even about my personal feelings towards a TOS. It's about legality on a TOS compared to your own copyright. So please either help me with what I'm asking for or leave it to someone who can.

@Everyone else. So let me see if I can give an example hopefully to better answer my question. Say I upload a piece of art, or programming code, I own the copyright to that work. So if I join a site and post (which means agreeing to the TOS) can I decide at any time in the future if they have abused my work to send them a notice or ask for the work be taken down? All I'm worried about is whether I can still police or protect my work. Or if I'm pretty much screwed when I agreed to the TOS. Does that better explain what I mean? Basically I want to know if I still have the right to get my work taken down, and if it's denied I have legal approaches to get my work taken down.
 
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xPreatorianx

Junior Member
Alrighty then! :rolleyes::rolleyes::rolleyes:
Sorry but that reply he made seemed a bit rude to me and I was just using that TOS as an example. I didn't copy and paste the entire TOS. But my questions still remain. Maybe it was just the way I read it. I apologize if I was being rude.
 

john39

Member
I didn't copy and paste the entire TOS. But it pretty much does say that in legal terms.

But this thread isn't even about my personal feelings towards a TOS. It's about legality on a TOS compared to your own copyright. So please either help me with what I'm asking for or leave it to someone who can.

@Everyone else. So let me see if I can give an example hopefully to better answer my question. Say I upload a piece of art, or programming code, I own the copyright to that work. So if I join that site and post (which means agreeing to the TOS) can I decide at any time in the future if they have abused my work to send them a notice or ask for the work be taken down? All I'm worried about is whether I can still police or protect my work. Or if I'm pretty much screwed when I agreed to the TOS. Does that better explain what I mean? Basically I want to know if I still have the right to get my work taken down, and if it's denied I have legal approaches to get my work taken down.
you don't have right to demand that they take your post (work) down,because the post is not your property,it is theirs,you agreed it is theirs by agreeing to tos.you still own copyright to your peace of art.they own the post.you own the authorship/ownership of the "art".they don't have to take down or edit the post.It is their post.Their possession.Anyway I am sorry if you think I complicated things.here I will not post again on your thread.Wait for poster Quincy and he will know for sure brother :D
 

quincy

Senior Member
Here is another Latin quote for your collection, john39 (I'll leave it for you to translate): non in legendo sed in intelligendo legis consistunt. ;) :)

And, actually, I am not sure I have a definitive answer to the question posed. It all depends on the specific facts. It would take a personal review of any website in question and the website's particular terms and conditions to say what can and cannot be done legally about "recapturing" a copyrighted work from a site, or rescinding any rights granted the site, once the copyright holder has voluntarily submitted his copyrighted work for publication on the site.

I can tell you, xPreatorianx, that a Terms of Service alone will not and cannot transfer your ownership in a copyrighted work to the site or transfer any exclusive rights in your copyrighted work to a site.

To transfer the ownership of a copyright in a work, the transfer must be in writing, must be signed by the original copyright owner, and must be an exclusive transfer of ALL rights in the work. With an exclusive license/assignment, unlike a transfer of ownership, the person to whom the rights are transferred becomes "owner" only of the rights in the work that have been granted by the copyright owner under the license/assignment (ie, the exclusive right to distribute the work, the exclusive right to make derivatives) and does not take ownership of the copyrighted work itself. And again, both the transfer of ownership in a copyright and the exclusive license/assignment to rights in a copyrighted work must be in writing and signed by the copyright holder to be valid.

It is possible, therefore, for a copyright owner to transfer some of the rights in a work without transferring copyright ownership in the whole of the copyrighted work. A copyright owner can give permission for others to use the copyrighted work through either the exclusive license/assignment mentioned above (which requires it be in writing) or a nonexclusive, or limited, license (limited for a specific purpose or for a particular time, for example), which usually is but does not need to be in writing.

In fact, a copyright owner can license or transfer several different rights to several different people and still retain ownership of the copyright.

If, therefore, you publish one of your works on a site where the Terms of Service state that whatever is posted on the site becomes the property of the site owner, you have effectively given away some rights in your work to the site, but you have not given away any exclusive rights or transferred to the site ownership in your work (both of which must be in writing and signed to be valid).

What you are basically granting a site is the right to use your work - you are granting a license to use your work under the terms outlined in the terms and conditions of the site. The granting of these rights does not prevent YOU from exercising all of the rights you are entitled to as copyright owner - you are just giving the site rights in your work, as well.

Especially when you have a copyrighted work that you wish to protect, it is important to read all terms of service and all conditions of use and all disclaimers posted on any site prior to posting on the site. You do not want to inadvertantly give away rights to your work that you are not willing to give away.

You may wish to have an attorney in your area go over with you the risks you may face in posting your original work on a particular site and what, if any, legal recourse you may have against the site should a problem arise with how your work is being used (or abused). As a note: one of the exclusive rights held by a copyright owner is the right to sue for infringement over the unauthorized use of the copyrighted work, but the work must be registered prior to any infringement to get full benefit of the protections that are offered under the copyright laws.
 
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justalayman

Senior Member
a question, if I may, Q.


If the TOS clearly identifies itself as an intent to transfer ownership of the rights and it is indicated that a check mark in the box is acceptable as an electronic signature, why could a TOS not act to transfer the rights? Does not the Electronic Signature Act allow for such an action?
 

john39

Member
Here is another Latin quote for your collection, john39 (I'll leave it for you to translate): non in legendo sed in intelligendo legis consistunt. ;) :)

.
I didn't say I read any law.:D

When I do,I am even more ridiculous than when I don't.

Thanks for the Latin quotation,I see it is old....I don't put other authors work in my collection.I make them from scratch

Thank you for the explanation.You were the final arbiter as far as I am concerned.
 
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justalayman

Senior Member
I didn't say I read any law.:D

When I do,I am even more ridiculous than when I don't.
.
well Hell, there;s the problem. It's hard to give any sort of educated advice if you have not been educated either through formal or self education. While that itself is not enough, it is where you must start.
 

john39

Member
well Hell, there;s the problem. It's hard to give any sort of educated advice if you have not been educated either through formal or self education. While that itself is not enough, it is where you must start.
.....I want to achieve immortality through my posts here.the price I pay for it is the shame you expose me to :(

and by the way I have a high school diploma you know,so stop putting me down!
 
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xPreatorianx

Junior Member
Here is another Latin quote for your collection, john39 (I'll leave it for you to translate): non in legendo sed in intelligendo legis consistunt. ;) :)

And, actually, I am not sure I have a definitive answer to the question posed. It all depends on the specific facts. It would take a personal review of any website in question and the website's particular terms and conditions to say what can and cannot be done legally about "recapturing" a copyrighted work from a site, or rescinding any rights granted the site, once the copyright holder has voluntarily submitted his copyrighted work for publication on the site.

I can tell you, xPreatorianx, that a Terms of Service alone will not and cannot transfer your ownership in a copyrighted work to the site or transfer any exclusive rights in your copyrighted work to a site.

To transfer the ownership of a copyright in a work, the transfer must be in writing, must be signed by the original copyright owner, and must be an exclusive transfer of ALL rights in the work. With an exclusive license, unlike a transfer of ownership, the licensee becomes "owner" only of the rights in the work that have been granted by the copyright owner under the license (ie, the exclusive right to distribute the work, the exclusive right to make derivatives) and the licensee does not take ownership of the copyright itself. And again, both the transfer of ownership in a copyright and the exclusive license to rights in a copyrighted work must be in writing and signed by the copyright holder to be valid.

It is possible, therefore, for a copyright owner to transfer some of the rights in a work without transferring copyright ownership. A copyright owner can give permission for others to use the copyrighted work through either the exclusive license mentioned above (which requires it be in writing) or a nonexclusive, or limited, license (limited for a specific purpose or for a particular time, for example), which usually is but does not need to be in writing.

In fact, a copyright owner can license or transfer several different rights to several different people and still retain ownership of the copyright.

If, therefore, you publish one of your works on a site where the Terms of Service state that whatever is posted on the site becomes the property of the site owner, you have effectively given away some rights in your work to the site, but you have not given away any exclusive rights or transferred to the site ownership in your work (both of which must be in writing and signed to be valid).

What you are basically granting a site is the right to use your work - you are granting a license to use your work under the terms outlined in the terms and conditions of the site. The granting of these rights does not prevent YOU from exercising all of the rights you are entitled to as copyright owner - you are just giving the site rights in your work, as well.

Especially when you have a copyrighted work that you wish to protect, it is important to read all terms of service and all conditions of use and all disclaimers posted on any site prior to posting on the site. You do not want to inadvertantly give away rights to your work that you are not willing to give away.

You may wish to have an attorney in your area go over with you the risks you may face in posting your original work on a particular site and what, if any, legal recourse you may have against the site should a problem arise with how your work is being used (or abused). As a note: one of the exclusive rights held by a copyright owner is the right to sue for infringement over the unauthorized use of the copyrighted work, but the work must be registered prior to any infringement to get full benefit of the protections that are offered under the copyright laws.
Thank you for the reply I greatly appreciate it! I believe I understand everything now. But I'll definitely seek legal council. (I need to anyways for my future business prospects.)

In all honesty in relation to the TOS. It was enacted today due to disputes and several members threatening a take down notice due to issues. So in a last ditch effort to get all those members back, they extended an olive branch to try and bury the hatchet. But when we returned we were greeted with this new TOS.(I guess to deter any legal action if it were to arise) But we had to sign into our accounts to view it. Which in all honesty meant that we already agreed basically.(At least I assume that's how it is.)

That's the reason why I'm posting this inquiry. The TOS was put up entirely to block any legal action against them if the need arises. So I'm wanting to see exactly what my rights are, and weigh in whether I should just stop publishing my work to the site. (in fear of not being able to protect my work.)


Would it help a bit more if I include a full copy of the TOS in it's entirety?

But again I greatly appreciate all of your help!

you don't have right to demand that they take your post (work) down,because the post is not your property,it is theirs,you agreed it is theirs by agreeing to tos.you still own copyright to your peace of art.they own the post.you own the authorship/ownership of the "art".they don't have to take down or edit the post.It is their post.Their possession.Anyway I am sorry if you think I complicated things.here I will not post again on your thread.Wait for poster Quincy and he will know for sure brother :D
No problem. Sorry if it seemed I was being rude. I'm just trying to keep things as uncomplicated as possible.(I'm no expert on law. In fact I'm pretty dumb in the grander scheme of things.)
 
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john39

Member
I read it

Copyright Law of the United States of America
and Related Laws Contained in Title 17 of the United States Code


§ 201. Ownership of copyright1

(a) Initial Ownership. — Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.

(d) Transfer of Ownership. —

(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.

§ 202. Ownership of copyright as distinct from ownership of material object

Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.


§ 204. Execution of transfers of copyright ownership

(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.
Ok,if all the website has is electronic signature from the poster agreeing to TOS,how does that constitute in writing and signed by the owner? § 204. Execution of transfers of copyright ownership

(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.
?

Does clicking and agreeing to TOS constitute in writing and signed by the owner?


Does it? Or does it not constitute writing and signed by the owner ?

I say it doesn't.

If it doesn't, then what was transferred? - only the object in which the work is embodied was transferred.

When the object in which the work is embodied is transferred ,does that also mean that the owner conveyed any rights in the copyrighted work embodied in the object ?

No.

Why?

Because of this:

§ 202. Ownership of copyright as distinct from ownership of material object

Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work embodied in the object; nor, in the absence of an agreement, does transfer of ownership of a copyright or of any exclusive rights under a copyright convey property rights in any material object.
You see the word agreement in bold?

Ok,what is the form of the agreement required to transfer ownership to the copyright?

§ 204. Execution of transfers of copyright ownership

(a) A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent.
The form is - in writing and signed by the owner

:D

Q:
So what can the website do with the TOS which is not "in writing and signed" by the owner?

A:
Make their own poem using it as an inspiration :D
 
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justalayman

Senior Member
how about you take the time to read the electronic signature act and apply what I wrote, very specifically, to the law you want to attempt to flout?

Here is an excerpt from the act:

(1) CONSENT TO ELECTRONIC RECORDS- Notwithstanding subsection (a), if a statute, regulation, or other rule of law requires that information relating to a transaction or transactions in or affecting interstate or foreign commerce be provided or made available to a consumer in writing, the use of an electronic record to provide or make available (whichever is required) such information satisfies the requirement that such information be in writing if--
 
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john39

Member
how about you take the time to read the electronic signature act and apply what I wrote, very specifically, to the law you want to attempt to flout?

Here is an excerpt from the act:
hhhmmm...that is fair game justalayman.Didn't see that coming.So now the issue is whether electronic records and electronic signatures meet those legal formalities such as the writing and signature requirements - whether an electronic signature constitutes an "original" for evidentiary purposes in respect to transfer of copyrights...

I will read the act you refer me to
 
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