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john39

Member
While I am doing this,JLM,are you saying that if the requirement of "in writing and signed" is overridden by that act (electronic signature act) the owner’s exclusive rights may be transferred? Or not?

As much as I understood it was said those exclusive rights can not be transferred absent "in writing and signed".I think

I think it was also said,as I understand,that with giving exclusive license (which is different than 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 and the licensee does not take ownership of the copyright itself.

But then I think it was said,as I understand,again,I might not understood correctly,that the exclusive license to rights in a copyright must also be in writing and signed by the copyright holder to be valid.

(sorry if I misunderstood)

What I didn't get is,when any transfer of copyright "right" is deemed valid,absent the requirement "in writing and signed" form ?

I think it was said that If, therefore, you publish works on web site and the TOS says that whatever is posted on the site becomes the property of the site ownerr, you have effectively given away some rights of said work, to the site, but you have not given away any exclusive rights or transferred the ownership of the work ....so ,as much as I can understand,in essence one is granting a license web site to use said work ,and then I think it was said,- "under the terms outlined in the terms and conditions of the site" :confused: here I was confused because....we were talking about TOS that states...in summary...every copyright you post here we own it....

So ,how can we say,on one hand that one is granting a license web site to use said work , "under the terms outlined in the terms and conditions of the site",whenthe TOS of the site states....you post it we own it....and also ,in the same time ,say,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 ?:confused:

So,how did poster agree with the tos?on thoseterms/conditions?

Did he? Or didn't he agree on thoseTOS?

What are the "some rights"?

( sorry ..my brain will explode :)....:D
too much for me to understand...I think I reached a wall or something :eek:)
 
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john39

Member
I mean when the web site TOS says...you post it we own it...(summarised like the OP put bluntly) and the poster clicked the button "agree"

Did he agree,to the TOS,little bit?:( but not quite all the way?

Like:

A)"you click this button fella you state intent that you agree with TOS.TOS says...what copyright you post we own it.Click if you want and agree,or don't click and be gone..."

B) "Ok,I click,here,I click the agree button,but I agree little bit and not all the way.I agree you may have "some rights" but I don't agree you may have ownership of the copyright.There click,I agree little bit.

I am confused is the electronic signature valid?Or isn't valid?

Or,is it valid little bit?
 
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justalayman

Senior Member
john39;2858883]While I am doing this,JLM,are you saying that if the requirement of "in writing and signed" is overridden by that act (electronic signature act) the owner’s exclusive rights may be transferred? Or not?

Quincy said those exclusive rights can not be transferred absent "in writing and signed".I think he was clear about that.
I referred it to Quincy because I don't know. Although Q is quite the guy, even he will admit to making a mistake occasionally and that is why I posted what I did hoping he would review it and state whether he was aware of the act and it is not applicable or he had not considered the possibility of the act and then whether it is or isn't applicable.



But then he says,as I understand,again,I might not understood correctly,that the exclusive license to rights in a copyright must also be in writing and signed by the copyright holder to be valid.
he posted this:
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.
that would mean that does not apply to a limited license.

An exclusive license, while it is in effect, is darn near ownership. Think of it as a time limited ownership. An exclusive license excludes the actual owner from exercising rights of ownership. For the duration of the license, they essentially hold title to the work.

as to the TOS; unless the e-signature question I have applies, it matters not what they put in the TOS as it would not be enforceable. As to what rights you did license, that would be in question. It may be determined that since you did not transfer he copyright itself or an exclusive license, unless there was other verbiage that allowed for a limited license as well, there were no actual rights transferred.

as an analogy:

say you had a car and I said by parking it in my driveway, it became mine regardless of the fact you have not signed the title transferring it to me. Since that is not enforceable, do I actually have any rights to the vehicle. If there is no lesser level of license to use the car in some way agreed to, I would argue that no, I have transferred no rights to you at all.

that is what I see as a probability with the claim of a transfer of copyright ownership that is not enforceable and no lesser level of licensing included in the TOS.







So ,how can he say,on one hand that one is granting a license web site to use said work , "under the terms outlined in the terms and conditions of the site",whenthe TOS of the site states....you post it we own it....and also ,in the same time ,says,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 ?:confused:
be careful. If you keep this up you will start spinning so fast you will be converted to pure energy. You know, the old E= MC²:D



What are the "some rights"?
rights but less than all (exclusive) rights. Without the rights being specified, I suggest there is no transfer of any rights

( sorry Quincy...my brain will explode :)....:D
too much for me to understand...I think I reached a wall or something :eek:)
you are caught in a never ending loop. Hang on for Q. He'll be back. He always comes back. I think, somewhere in the TOS of this site, you give the rights to your soul and can never leave (kind of like the Hotel California by the Eagles).
 

john39

Member
you are caught in a never ending loop. Hang on for Q. He'll be back. He always comes back. I think, somewhere in the TOS of this site, you give the rights to your soul and can never leave (kind of like the Hotel California by the Eagles).
you are cool JLM ,I like you.The friction between you and me exists because I don't reply,ever, on a thread in which I agree with the others,that is boring for me.I like a good fight :D

I agree with 99% of your posts I read
 

quincy

Senior Member
Yup. I knew I should have read the FreeAdvice terms of service agreement before signing up as a member. That fine-print, "your soul becomes the property of FA" clause came as a bit of a surprise to me. :)

First, a copyright owner is given a whole bunch of exclusive rights in his copyrighted work - the exclusive right to reproduce the work, the exclusive right to market or sell the work, the exclusive right to make derivatives of the work, the exclusive right to display or perform the work, and the exclusive right to sue anyone who infringes on these rights.

The copyright owner is given complete control over his copyrighted work - and this control allows the copyright owner to give away or sell some or even all of these rights (through licenses or transfers).

When what is given away or sold is ALL of the exclusive rights in the work, the copyright owner is no longer the copyright owner. The person to whom all rights have been transferred becomes the new copyright holder. This transfer of ALL rights in a copyrighted work (from the original copyright holder to the new) MUST be in writing and it MUST be signed by the original copyright holder.

The "must be written and must be signed" also applies to the transfer of all of any ONE of the exclusive rights of the copyright holder (ie, the exclusive right to perform the work). The holder of the exclusive rights license/assignment to perform the work becomes the owner of that right, exclusive of all others. He OWNS that right in the copyrighted work, and he is entitled to sue anyone who infringes on that one particular exclusive right (ie, he can sue for infringement anyone who performs the work without his permission).

Limited, or nonexclusive, licenses do not transfer any exclusive rights to the copyrighted work. They only grant permission to use the work. The copyright holder retains all rights in the work, even those rights to which he has granted a nonexclusive license. A holder of a limited license may be granted a right by the copyright holder to use, say, a copyrighted photograph in his book, but that does not entitle the holder of the limited license to use the photograph in any way other than what the copyright holder has allowed. The copyright holder has not given up his OWN right to use the photograph or to grant others the right to use the photograph, either. The limited license is just that - limited in scope and not an exclusive right to use the copyrighted work. These nonexclusive licenses do not have to be in writing (but most are).

to be continued...
 
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xPreatorianx

Junior Member
I mean when the web site TOS says...you post it we own it...(summarised like the OP put bluntly) and the poster clicked the button "agree"

Did he agree,to the TOS,little bit?:( but not quite all the way?

Like:

A)"you click this button fella you state intent that you agree with TOS.TOS says...what copyright you post we own it.Click if you want and agree,or don't click and be gone..."

B) "Ok,I click,here,I click the agree button,but I agree little bit and not all the way.I agree you may have "some rights" but I don't agree you may have ownership of the copyright.There click,I agree little bit.

I am confused is the electronic signature valid?Or isn't valid?

Or,is it valid little bit?

Basically what happened was everyone involved in the fiasco was unbanned and able to sign back into the forum. When we signed back in we had a thread post with the announcement of the new TOS and privacy policy for us to view. But the only way to "accept" the TOS is to either register for a new account, or I would imagine post on the forum again. I'm not sure on the second one but I know you do have to tick the "I agree" box for the TOS when you register. But as I was registered for almost a year beforehand, I didn't have to click anything. I only had to view the new TOS.

Here in about an hour or so I'll post the full TOS in it's entirety minus the names of the site, and it's owners.

Another question that kinda goes along with above, could it be that simply signing into a forum is grounds for accepting a TOS? As the TOS is just like any other forum TOS. It's down at the bottom and the only time you actually hit something that says " I agree to these terms or conditions" is during the time you first register. After that there is no other button on the forum that basically has the same words.
 
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john39

Member
Basically what happened was everyone involved in the fiasco was unbanned and able to sign back into the forum. When we signed back in we had a thread post with the announcement of the new TOS and privacy policy for us to view. But the only way to "accept" the TOS is to either register for a new account, or I would imagine post on the forum again. I'm not sure on the second one but I know you do have to tick the "I agree" box for the TOS when you register. But as I was registered for almost a year beforehand, I didn't have to click anything. I only had to view the new TOS.

Here in about an hour or so I'll post the full TOS in it's entirety minus the names of the site, and it's owners.

Another question that kinda goes along with above, could it be that simply signing into a forum is grounds for accepting a TOS? As the TOS is just like any other forum TOS. It's down at the bottom and the only time you actually hit something that says " I agree to these terms or conditions" is during the time you first register. After that there is no other button on the forum that basically has the same words.
xPreatorianx proper etiquette requires that before other posters post,we let Quincy finish.

He didn't finish - see to be continued?

Allow him to finish
 

quincy

Senior Member
Oh, geez. Never wait for me to finish. . . . sometimes I have to do actual work, and there is no telling how long I will be gone. :)

In the meantime, if anyone is interested, you can review Conwell v Graylon Outdoor Marketing Group, Inc, No. 82504-0806-CV-00309, May 19, 2009. This was an Indiana Supreme Court decision that has a discussion on copyright transfers. You can access the case at http://www.in.gov/judiciary/opinions/pdf/05190901rts.doc.pdf. Part III Did Grayloon Commit Conversion is the part you may wish to focus on - starting on page 12, but especially from page 15, Copyright Transfer.

Also, Kerr v Dillard Store Services, Inc, No. 07-2604-KHV, (D. Kans. Feb 17, 2009), accessible at http://ecf.ksd.uscourts.gov/cgi-bin/show_public_doc?2007cv2604-103.

Another case in San Francisco last year that was upheld on appeal. A suit was filed over electronic signatures on a petition, but California's election code does not allow for electronic signature on petitions. I lost the cite somewhere in my jumble of papers.

Again, I will return later.
 
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justalayman

Senior Member
Let me say that again if anyone missed it.Quincy said:



So,Quincy,which part of the law I misread then?
I have found nothing in either cited case concerning electronic signatures and copyright law. I do not see an answer to the electronic signature issue, yet.

as another thorn for you Q.

if I granted exclusive rights for all purposes to another but limited the time, would that be considered a limited license and as such, does not have to be in writing?
 

john39

Member
I have found nothing in either cited case concerning electronic signatures and copyright law. I do not see an answer to the electronic signature issue, yet.

as another thorn for you Q.

if I granted exclusive rights for all purposes to another but limited the time, would that be considered a limited license and as such, does not have to be in writing?
he edited his post as I was replying.I deleted it therefore.
 

quincy

Senior Member
I should never post when I am in a hurry or doing other things because I often return to find errors in what I wrote and, before I have a chance to edit them out, those errors have been quoted by others. :eek:

First, john, I changed the post part that you quoted but I apparently did not change it in time to prevent your immortalizing my error in your post.

I left out the "exclusive" before the "rights." Rights in a copyrighted work ARE given to a licensee when a copyright owner grants a nonexclusive or limited license - but these rights are limited to what is specifically granted by the copyright owner and the licensee is not allowed to exceed the specific rights granted.
 
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john39

Member
Limited, or nonexclusive, licenses do not transfer any exclusive rights to the copyrighted work. They only grant permission to use the work. The copyright holder retains all rights in the work, even those rights to whom he has granted a nonexclusive license.
to be continued...
What kind of right is granting permission to use the work?
Is that right for example to redistribute said work?
What I mean is,can they,after they have been granted this right,take the copyright work from the form in which was transferred to them and transfer it into another form?

Or can they only use it in the form it was transferred to them?
 

john39

Member
I should never post when I am in a hurry or doing other things because I often return to find errors in what I wrote and, before I have a chance to edit them out, those errors have been quoted by others. :eek:

First, john, I changed the post part that you quoted but I apparently did not change it in time to have you immortalize my error in your post.

I left out the "exclusive" before the "rights." Rights in a copyrighted work ARE given to a licensee when a copyright owner grants a nonexclusive or limited license - but these rights are limited to what is specifically granted by the copyright owner and the licensee is not allowed to exceed the specific rights granted.
No problem,:) so it is the exclusive rights that don't transfer,but not the Limited, or nonexclusive.They,you now with the edit say,transfer.

Ok

When did they transfer?When the tangible form in which they were embedded was transferred to the site? Was that the act/and time when they transferred? Or when poster clicked ....I agree to your TOS that says you post it we own it?
 
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john39

Member
let me see if I can be more clear in how I formulate the question.

Is that right,the limited,nonexclusive right,right to ,as you say "use the work" attached to the tangible form in which the copyright is embedded?(when transferred to them - in this instance,the form was- post online)

Can they use it in any other way than using it in the form it is embedded?

They have it in the post.They wanna use it.

If the copyright is picture or text,Can they take it out (from the post), from the form in which is embedded,and make copies of it and use the copies?
 
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