Here's a new one!

[BlondiePB]

The general rule for an ISP is that they are immune from liability for vicarious or contributory copyright infringement for hosting infringing materials unless they are "noticed" that they are hosting infringing materials, and then do nothing. However, simply sending them a letter or email or calling them is insufficient to provide notice -- you must follow precisely the steps in 17 USC 512(c): http://www.copyright.gov/title17/92chap5.html#512 -- if you don't, the ISP has not been legally "noticed," and they don't have to do anything. Only after they have been legally noticed do they have liability if they fail to act on the notice.

However, that said, it's not clear that you really have a case for copyright infringement anyway. As far as the videos are concerned, if the brothers took the videos, they own the copyright in the videos. It is very likely that them showing the videos is an invasion of privacy, and they could probably be sued for that, but it is not copyright infringement.

In addition, their telling of your mom's story is also not copyright infringement, as long as they stick to the "facts." If you've editorialized, or otherwise used creativity in your storytelling, then that would be protected, and you could perhaps find that they are infringing on your copyright. But if all they are doing is telling the factual story, or the factual story with THEIR creative spin, well, that's not copyright infringement. You cannot copyright facts. I don't mean to be harsh, but I could get a copy of your book, read it, and write my own bio of your mom based on what I read, and it wouldn't be infringement as long as I stuck to the facts, and put things in my own words.

And finally, them writing or posting about the book itself is also unlikely to be illegal. There are pretty high levels of protection for critical speech, and criticism of a work is almost always found to be a fair use" of the work. Unless the postings rise to the level of libel, it is unlikely that you can keep them from criticizing your book.

Now, all that said, it doesn't mean that you shouldn't try to get them shut down in any way you can -- who knows, if you are persistent enough, maybe they'll just give up -- but it doesn't sound like, from what you've written, that you have much of a cause of action under copyright law. It sounds like you might very well have a good case for invasion of privacy, and maybe even defamation, but not copyright infringement.

Different facts might change that analysis, but based on what you've posted, that's my read.

Thank you for joining in divgradcurl. Your analysis makes good sense. Can you comment now about/how the fraudulent donations that the brothers are collecting via their website could/if is a legal basis to shut down their website.

 

[nightrider]

Wow!

The general rule for an ISP is that they are immune from liability for vicarious or contributory copyright infringement for hosting infringing materials unless they are "noticed" that they are hosting infringing materials, and then do nothing. However, simply sending them a letter or email or calling them is insufficient to provide notice -- you must follow precisely the steps in 17 USC 512(c): http://www.copyright.gov/title17/92chap5.html#512 -- if you don't, the ISP has not been legally "noticed," and they don't have to do anything. Only after they have been legally noticed do they have liability if they fail to act on the notice.

However, that said, it's not clear that you really have a case for copyright infringement anyway. As far as the videos are concerned, if the brothers took the videos, they own the copyright in the videos. It is very likely that them showing the videos is an invasion of privacy, and they could probably be sued for that, but it is not copyright infringement.

In addition, their telling of your mom's story is also not copyright infringement, as long as they stick to the "facts." If you've editorialized, or otherwise used creativity in your storytelling, then that would be protected, and you could perhaps find that they are infringing on your copyright. But if all they are doing is telling the factual story, or the factual story with THEIR creative spin, well, that's not copyright infringement. You cannot copyright facts. I don't mean to be harsh, but I could get a copy of your book, read it, and write my own bio of your mom based on what I read, and it wouldn't be infringement as long as I stuck to the facts, and put things in my own words.

And finally, them writing or posting about the book itself is also unlikely to be illegal. There are pretty high levels of protection for critical speech, and criticism of a work is almost always found to be a fair use" of the work. Unless the postings rise to the level of libel, it is unlikely that you can keep them from criticizing your book.

Now, all that said, it doesn't mean that you shouldn't try to get them shut down in any way you can -- who knows, if you are persistent enough, maybe they'll just give up -- but it doesn't sound like, from what you've written, that you have much of a cause of action under copyright law. It sounds like you might very well have a good case for invasion of privacy, and maybe even defamation, but not copyright infringement.

Different facts might change that analysis, but based on what you've posted, that's my read.

Thanks Blondie, I have been searching the law on copyright infringment, yes your right there is a fine line of whats infringment and fair use are. My understanding is you can use it for criticisn, news reporting, teaching and research, so long as the value of the copyright is not diminished. A factor also is the effect of the use upon the market of the copyrighted work. They did not take the story from the book from our web-site verbatim, however paraphasing was used, sample,[ 1000's of children were taken, instead of 1000 children taken, no real biggy on that though.
However before they re-tracked it, they had on their site and another one stating, [ WHY BUY THE BOOK WHEN YOU CAN HEAR IT FOR FREE!] Big mistake! It is already inplemented rather they took it off are not, so I heard.We have a copy of that before they took that part out.Then causing confusion by using the common law trademark that I have had since 1983 in print, using the name of the book as their URL, lets not forget, hacking into our site re-directing our visiters to their site when you hit the [ home] button. We have 7 wittnesses and signed affidavit's.
I take photographs for a living, even though I took them and own the copyright of that print, that does not mean I can abuse the fair use act when someone is in that photo. Only newspaper can get away with out having a model release, I have to get permission from the persons in photo to sell,publish, or enter a contest, even a landscape with an old barn, that person can say I had no right to publish that picture with his barn in it. So I'm thinking the same should be with those video's, wouldn't you think? Were far from ready on this one, you all have been so helpful, however the privacy thing could be a good one you think? Thanks.........

 

[nightrider]

Thanks Guy

Do we contact the web-host who they have their site through? Which we did, heard nothing, is the ISP the internet service they are using to get on the net? And how do you find that out? Thanks

Yes, you want to contact the company hosting their web site. Since they have chosen to not respond to you, I would suggest a formal letter on the stationary of a local law firm indicating to them that they, by their inaction after notification, are participating this illegal activity and copyright infringement. If they continue to host the site they will be added as defendants in the civil suits against the brothers.

I'm working on another letter via e-mail one more time, I hope this works, if they would just rid of the site, we would be happy and let things rest and go on with our lives, No one really wins with a lawsuit anyway, it would give grounds to remove another also if they so desire to re-build one, then we may have to continue a suit. Thanks Some Random Guy

 

[BlondiePB]

Thanks Blondie, I have been searching the law on copyright infringment, yes your right there is a fine line of whats infringment and fair use are. My understanding is you can use it for criticisn, news reporting, teaching and research, so long as the value of the copyright is not diminished. A factor also is the effect of the use upon the market of the copyrighted work. They did not take the story from the book from our web-site verbatim, however paraphasing was used, sample,[ 1000's of children were taken, instead of 1000 children taken, no real biggy on that though.
However before they re-tracked it, they had on their site and another one stating, [ WHY BUY THE BOOK WHEN YOU CAN HEAR IT FOR FREE!] Big mistake! It is already inplemented rather they took it off are not, so I heard.We have a copy of that before they took that part out.Then causing confusion by using the common law trademark that I have had since 1983 in print, using the name of the book as their URL, lets not forget, hacking into our site re-directing our visiters to their site when you hit the [ home] button. We have 7 wittnesses and signed affidavit's.
I take photographs for a living, even though I took them and own the copyright of that print, that does not mean I can abuse the fair use act when someone is in that photo. Only newspaper can get away with out having a model release, I have to get permission from the persons in photo to sell,publish, or enter a contest, even a landscape with an old barn, that person can say I had no right to publish that picture with his barn in it. So I'm thinking the same should be with those video's, wouldn't you think? Were far from ready on this one, you all have been so helpful, however the privacy thing could be a good one you think? Thanks.........

nightrider, I asked divgradcurl to take a look at this thread and for her imput. I'm still wondering about the fraudulent donations being able to shut those .......... (you fill it in) website down.

 

[divgradcurl]

My understanding is you can use it for criticisn, news reporting, teaching and research, so long as the value of the copyright is not diminished.

There are other fair uses as well, and diminishment of the value of the copyright (or impact on the market for the copyright) is only 1 of the 4 fair use factors to be considered, although caselaw suggests it is the most important factor (see, e.g., Campbell v. Acuff-Rose Music).

I take photographs for a living, even though I took them and own the copyright of that print, that does not mean I can abuse the fair use act when someone is in that photo. Only newspaper can get away with out having a model release, I have to get permission from the persons in photo to sell,publish, or enter a contest, even a landscape with an old barn, that person can say I had no right to publish that picture with his barn in it.

Actually, this is not true, and has nothing to do with copyright law. If you take a picture -- of anything or anyone -- you own the copyright to the picture, period.

Now, whether you can sell that picture will depend may depend on what you took the picture of. If you take a picture of a person in a public location, then you don't need a model release to sell or publish the picture, as long as it is sold or published in such a way that the person's likeness is not used to "sell" the picture.

You do have to get permission to use a person's likeness for a commercial purpose (although simply selling a picture of a person is not necessarily a commercial purpose as the term is used here), and you do have to get a person's permission if the picture is taken in a place where the person has an "expectation of privacy."

But, in general, if you take a picture of a person in a public location you can sell or publish that picture without permission, because a person has no expectation of privacy when in a public place. And again, these are rpivacy laws, not copyright laws.

So I'm thinking the same should be with those video's, wouldn't you think?

As I noted in my previous post, this would most likely be a privacy issue -- you would sue the brothers for the tort of invasion of privacy. This is not a copyright issue.

 

[divgradcurl]

I'm working on another letter via e-mail one more time, I hope this works, if they would just rid of the site, we would be happy and let things rest and go on with our lives, No one really wins with a lawsuit anyway, it would give grounds to remove another also if they so desire to re-build one, then we may have to continue a suit. Thanks Some Random Guy

If you don't follow the instructions I gave you above (17 USC 512(c)), the ISP is under no obligation to respond or do anything. Follow the link I gave you above, read the admittedly complicated 6 or 7 step procedure under section (c), and then the ISP will be obligated to do something in response to your letter.

And forget email -- it has to be a letter, and you'll want to send it certified return receipt requested in order to have proof in case you need it later on.

 

[divgradcurl]

nightrider, I asked divgradcurl to take a look at this thread and for her imput. I'm still wondering about the fraudulent donations being able to shut those .......... (you fill it in) website down.

Just to point out, I'm a he, not a she -- not that it matters in an online environment anyway!

As far as the fraudulent donations are concerned, the ISP isn't liable for stuff like this that happens on websites they are hosting, so it won't do any good to contact the ISP about this. However, if they are accepting donations without tax-exempt status and they are not claiming those donations as earned income on their tax filings, then the IRS might be very interested in what they are doing -- you might want to contact your local IRS office to see if they are interested in folowing up...

 

[BlondiePB]

Just to point out, I'm a he, not a she -- not that it matters in an online environment anyway!

As far as the fraudulent donations are concerned, the ISP isn't liable for stuff like this that happens on websites they are hosting, so it won't do any good to contact the ISP about this. However, if they are accepting donations without tax-exempt status and they are not claiming those donations as earned income on their tax filings, then the IRS might be very interested in what they are doing -- you might want to contact your local IRS office to see if they are interested in folowing up...

Thank you for clearing all that up, Sir divgradcurl.

 

[nightrider]

Interesting

There are other fair uses as well, and diminishment of the value of the copyright (or impact on the market for the copyright) is only 1 of the 4 fair use factors to be considered, although caselaw suggests it is the most important factor (see, e.g., Campbell v. Acuff-Rose Music).



Actually, this is not true, and has nothing to do with copyright law. If you take a picture -- of anything or anyone -- you own the copyright to the picture, period.

Now, whether you can sell that picture will depend may depend on what you took the picture of. If you take a picture of a person in a public location, then you don't need a model release to sell or publish the picture, as long as it is sold or published in such a way that the person's likeness is not used to "sell" the picture.

You do have to get permission to use a person's likeness for a commercial purpose (although simply selling a picture of a person is not necessarily a commercial purpose as the term is used here), and you do have to get a person's permission if the picture is taken in a place where the person has an "expectation of privacy."

But, in general, if you take a picture of a person in a public location you can sell or publish that picture without permission, because a person has no expectation of privacy when in a public place. And again, these are rpivacy laws, not copyright laws.



As I noted in my previous post, this would most likely be a privacy issue -- you would sue the brothers for the tort of invasion of privacy. This is not a copyright issue.

So when I get a picture published and they ask for a model release its for the privacy of said person other than my right to use it in print, because our brother asked to have his picture removed off our site when he was ten, he said it was copyright infringment even though my mother transfered all the old family photo's to me. We blurred his face Oh well this is another can of worms Thanks divgradcur, we will work on the tort of invasion of privacy, boy that sounds good! Thanks.......

 

[nightrider]

Donations

Just to point out, I'm a he, not a she -- not that it matters in an online environment anyway!

As far as the fraudulent donations are concerned, the ISP isn't liable for stuff like this that happens on websites they are hosting, so it won't do any good to contact the ISP about this. However, if they are accepting donations without tax-exempt status and they are not claiming those donations as earned income on their tax filings, then the IRS might be very interested in what they are doing -- you might want to contact your local IRS office to see if they are interested in folowing up...

We contacted the IRS that sent us to the Attorneys General office to file a consumers fraud, we did but in the wrong state, needed to be in the state where crime started, not the state my mom is in, also medicaid has the state of Missouri and Kansas on alert, because mom is on medicaid, being they said they were collecting donations for mom, the money has to go to the state, not her, unless they can raise 1800 amonth for her care. Also we have alerted the IFCC for donaction fraud, heard nothing yet. Don't forget one brother denounced his SSN and the other works for the goverment, keeps getting better dosen't.
We do have a e-mail, hehe, stating the paypal and bank account has not been set up yet in mom's name to recieve monies, we will keep you posted, Oh yeah, I called a local bank that said no way! It can not be legal without her consent and name on account, don't really no about that, but sounds fishy...........Thanks

 

[nightrider]

Sounds good

If you don't follow the instructions I gave you above (17 USC 512(c)), the ISP is under no obligation to respond or do anything. Follow the link I gave you above, read the admittedly complicated 6 or 7 step procedure under section (c), and then the ISP will be obligated to do something in response to your letter.

And forget email -- it has to be a letter, and you'll want to send it certified return receipt requested in order to have proof in case you need it later on.

Will do it, thanks so much