Second Life Forums Archive - Copyright / deals than people don't keep

Kidd Krasner

Registered User

Join date: 1 Jan 2007

Posts: 1,938

10-29-2009 06:18

From: Innula Zenovka

(and certainly in the UK you can have verbal contracts).

We have verbal contracts in the US as well. However, certain types of contracts or contract issues are only valid if they're in writing. That happens to be the case for many copyright issues, and usually works in favor of the copyright owner.

From: someone

Whichever way you look at it, it seems more like contract than copyright. I can't see any huge difference between, on the one hand, the painter and decorator who's fitted up someone's new store complaining he hasn't been paid, and, on the other, the signwriter who made the sign to hang outside it making the same complaint.

The signwriter who makes the sign usually isn't the same person who designed the store logo, and thus wouldn't have any copyrights in the sign.

From: someone

And in RL you would expect both the guy who painted the storefront and the guy who painted the sign to pursue claims for breach of contract in the small claims court.

But the logo designer might choose to file in Federal court, and could, if they've done things correctly, sue for statutory damages (although the logo designer could well be better off suing for actual damages).

From: someone

What happens in the US if, an artist complains to the DMCA people that someone's using, on a website, a picture he made and the owner of the website says, "yes, but I've got every right to use it, because I paid the artist an agreed fee for this right?"

Do the DMCA people attempt themselves to resolve the question of whether the fee has, in fact, been paid or whether it was the full fee agreed on, or do they tell you to ask a court to resolve that question and then come back to them either with a decision from the court about that? And if they tell you to ask a court to sort it out, presumably it's the court who -- should it be so minded -- issues temporary injunctions against the website and its hosts, telling them not to use the image until the matter has been decided, isn't it?

First, there are no "DMCA people" in this sense. When DMCA comes up in this context, it's about a safe harbor provision to protect service providers who host third-part content. If the content was posted by the website operator, then a) they're not entitled to the safe harbor provision because it's content under their direct control; and b) the copyright owner would have to sue in court to force the matter. DMCA won't enter into the picture at all.

But if we change your example to match DMCA circumstances, if the alleged offender sends a proper reply back to LL, then LL has a certain time frame in which to restore the deleted content. They don't need to decide any issues of law or fact, other than whether or not the reply they received meets the requirements. After that, LL is essentially out of the picture. The copyright owner would have to sue, and a court would decide whether or not an infringement took place. (LL could still be in the picture in terms of contributory infringement, as with the current Stroker suit, but that's a different ball of wax.)

madman626 Fall

Registered User

Join date: 24 May 2008

Posts: 60

hmmm

10-29-2009 06:26

From: NewspaperGuy Popstar

But i am talking about textures and those need to have perm for people to sell their products, how come can Linden be out of the process if u have logs of all

In RL if u do a work and don't get payed like u agreed on you have the right to getyour work back

this is not rl this sl big different they do has they plz, (LL, and other players ) but sorry for your loss never give out work less you are pay in full. just a tip

Kidd Krasner

Registered User

Join date: 1 Jan 2007

Posts: 1,938

10-29-2009 06:34

From: Chosen Few

Were this in fact a copyright matter, then they'd be legally obligated as a service provider to remove the disputed content, once you've filed a proper takedown notice.

Let me add, as an aside, that this is a common misconception about DMCA.

They have absolutely no legal obligation to remove the disputed content based on a proper DMCA take down notice. All that happens if they don't is that they lose the safe harbor protections of the DMCA. Granted, consciously abandoning those protections would be gross incompetence, but that's not the same as saying that they've broken the law by refusing to honor a DMCA take down notice.

If they don't follow DMCA procedures, then they significantly increase their risks in a suit for contributory copyright infringement. Conceivably, they could even be found to have committed direct copyright infringement (since they own and operate the systems that produce the allegedly infringing material), but I'm not sure about that.

But there's no law that says you must have a DMCA process. A tiny service provider, say a one-person shop just getting started, might find it more cost-effective to handle complaints less formally until they can afford the staff to do DMCA complaints properly. But ask an attorney first.

Novis Dyrssen

Girl Geek

Join date: 6 May 2007

Posts: 1,452

10-29-2009 06:41

From: NewspaperGuy Popstar

You agree that your creation of Content is not in any way based upon any expectation of compensation from Linden Lab.

That last sentence you quoted, my dear, is exactly enforced to full extend...

_____________________

~~ immortal words of Rob Thomas ~~
Hey-yeah, welcome to the Real World
Nobody told you it was gonna be hard

Lindal Kidd

Dances With Noobs

Join date: 26 Jun 2007

Posts: 8,371

10-29-2009 07:34

From: Chosen Few

Whether or not you uploaded the image file(s) in no way correlates with whether or not you own the IP. People upload images they don't own all the time.

Once again, your beef here is theft of services, not theft of IP. What the client stole from you was your labor, not your property. The client owns the property; there is no question of that. One cannot steal what one already owns....If you wanted to arrange it so you would own the IP in the event of the client's failure to pay, you should have specified that in a contract. But you didn't. And that's that.

I'm not sure it's that black and white, Chosen. The OP says he has chat and IM logs. If they show that the agreement included that the OP would retain the rights to his textures, he may indeed have a basis for a DMCA takedown notice.

If the record is silent on the issue of who retains the rights, then you are correct, it was a work for hire and the client owns the rights.

_____________________

It's still My World and My Imagination! So there.
Lindal Kidd

Kidd Krasner

Registered User

Join date: 1 Jan 2007

Posts: 1,938

10-29-2009 08:45

From: Lindal Kidd

I'm not sure it's that black and white, Chosen. The OP says he has chat and IM logs. If they show that the agreement included that the OP would retain the rights to his textures, he may indeed have a basis for a DMCA takedown notice.

If the record is silent on the issue of who retains the rights, then you are correct, it was a work for hire and the client owns the rights.

Please check again, and see the Copyright Office's Circular 9, linked in a previous note.

Innula Zenovka

Registered User

Join date: 20 Jun 2007

Posts: 1,825

10-29-2009 09:24

From: Kidd Krasner

But if we change your example to match DMCA circumstances, if the alleged offender sends a proper reply back to LL, then LL has a certain time frame in which to restore the deleted content. They don't need to decide any issues of law or fact, other than whether or not the reply they received meets the requirements. After that, LL is essentially out of the picture. The copyright owner would have to sue, and a court would decide whether or not an infringement took place. (LL could still be in the picture in terms of contributory infringement, as with the current Stroker suit, but that's a different ball of wax.)

So, the long and the short of it is that if the customer disagrees with NewspaperGuy about what they'd agreed and contends that she or he is acting in good faith, then the customer needs to make a proper reply to LL, the content gets replaced, and NewspaperGuy and the customer will have to ask an appropriate RL court to sort things out for them.

Amaranthim Talon

Voyager, Seeker, Curious

Join date: 14 Nov 2006

Posts: 12,032

10-29-2009 11:20

Legalese aside, may I suggest next time, put stuff in a box and set it for sale- if the customer wants it - they pay- if not...

_____________________

"Yield to temptation. It may not pass your way again. "
Robert A. Heinlein

http://talonfaire.blogspot.com/

Visit Talon Faire Main:
http://slurl.com/secondlife/Misto%20Presto/216/21/155- Main Store

XStreets: http://tinyurl.com/6r7ayn

Chokolate Latte

Registered User

Join date: 22 Dec 2007

Posts: 145

10-29-2009 11:53

From: Amaranthim Talon

Legalese aside, may I suggest next time, put stuff in a box and set it for sale- if the customer wants it - they pay- if not...

That's the best suggestion. That way neither side has to worry about trust. To recieve the customer has to pay, if they aren't happy with the work they don't have to go through with it and be accused of not paying.

_____________________

Kidd Krasner

Registered User

Join date: 1 Jan 2007

Posts: 1,938

10-29-2009 13:38

From: Innula Zenovka

So, the long and the short of it is that if the customer disagrees with NewspaperGuy about what they'd agreed and contends that she or he is acting in good faith, then the customer needs to make a proper reply to LL, the content gets replaced, and NewspaperGuy and the customer will have to ask an appropriate RL court to sort things out for them.

Exactly.

This part of the DMCA was primarily intended to protect service providers. Any benefit to copyright owners is secondary.

Copyright / deals than people don't keep
Kidd Krasner Registered User Join date: 1 Jan 2007 Posts: 1,938	10-29-2009 06:18 From: Innula Zenovka (and certainly in the UK you can have verbal contracts). We have verbal contracts in the US as well. However, certain types of contracts or contract issues are only valid if they're in writing. That happens to be the case for many copyright issues, and usually works in favor of the copyright owner. From: someone Whichever way you look at it, it seems more like contract than copyright. I can't see any huge difference between, on the one hand, the painter and decorator who's fitted up someone's new store complaining he hasn't been paid, and, on the other, the signwriter who made the sign to hang outside it making the same complaint. The signwriter who makes the sign usually isn't the same person who designed the store logo, and thus wouldn't have any copyrights in the sign. From: someone And in RL you would expect both the guy who painted the storefront and the guy who painted the sign to pursue claims for breach of contract in the small claims court. But the logo designer might choose to file in Federal court, and could, if they've done things correctly, sue for statutory damages (although the logo designer could well be better off suing for actual damages). From: someone What happens in the US if, an artist complains to the DMCA people that someone's using, on a website, a picture he made and the owner of the website says, "yes, but I've got every right to use it, because I paid the artist an agreed fee for this right?" Do the DMCA people attempt themselves to resolve the question of whether the fee has, in fact, been paid or whether it was the full fee agreed on, or do they tell you to ask a court to resolve that question and then come back to them either with a decision from the court about that? And if they tell you to ask a court to sort it out, presumably it's the court who -- should it be so minded -- issues temporary injunctions against the website and its hosts, telling them not to use the image until the matter has been decided, isn't it? First, there are no "DMCA people" in this sense. When DMCA comes up in this context, it's about a safe harbor provision to protect service providers who host third-part content. If the content was posted by the website operator, then a) they're not entitled to the safe harbor provision because it's content under their direct control; and b) the copyright owner would have to sue in court to force the matter. DMCA won't enter into the picture at all. But if we change your example to match DMCA circumstances, if the alleged offender sends a proper reply back to LL, then LL has a certain time frame in which to restore the deleted content. They don't need to decide any issues of law or fact, other than whether or not the reply they received meets the requirements. After that, LL is essentially out of the picture. The copyright owner would have to sue, and a court would decide whether or not an infringement took place. (LL could still be in the picture in terms of contributory infringement, as with the current Stroker suit, but that's a different ball of wax.)
madman626 Fall Registered User Join date: 24 May 2008 Posts: 60	hmmm 10-29-2009 06:26 From: NewspaperGuy Popstar But i am talking about textures and those need to have perm for people to sell their products, how come can Linden be out of the process if u have logs of all In RL if u do a work and don't get payed like u agreed on you have the right to getyour work back this is not rl this sl big different they do has they plz, (LL, and other players ) but sorry for your loss never give out work less you are pay in full. just a tip
Kidd Krasner Registered User Join date: 1 Jan 2007 Posts: 1,938	10-29-2009 06:34 From: Chosen Few Were this in fact a copyright matter, then they'd be legally obligated as a service provider to remove the disputed content, once you've filed a proper takedown notice. Let me add, as an aside, that this is a common misconception about DMCA. They have absolutely no legal obligation to remove the disputed content based on a proper DMCA take down notice. All that happens if they don't is that they lose the safe harbor protections of the DMCA. Granted, consciously abandoning those protections would be gross incompetence, but that's not the same as saying that they've broken the law by refusing to honor a DMCA take down notice. If they don't follow DMCA procedures, then they significantly increase their risks in a suit for contributory copyright infringement. Conceivably, they could even be found to have committed direct copyright infringement (since they own and operate the systems that produce the allegedly infringing material), but I'm not sure about that. But there's no law that says you must have a DMCA process. A tiny service provider, say a one-person shop just getting started, might find it more cost-effective to handle complaints less formally until they can afford the staff to do DMCA complaints properly. But ask an attorney first.
Novis Dyrssen Girl Geek Join date: 6 May 2007 Posts: 1,452	10-29-2009 06:41 From: NewspaperGuy Popstar You agree that your creation of Content is not in any way based upon any expectation of compensation from Linden Lab. That last sentence you quoted, my dear, is exactly enforced to full extend... _____________________ ~~ immortal words of Rob Thomas ~~ Hey-yeah, welcome to the Real World Nobody told you it was gonna be hard
Lindal Kidd Dances With Noobs Join date: 26 Jun 2007 Posts: 8,371	10-29-2009 07:34 From: Chosen Few Whether or not you uploaded the image file(s) in no way correlates with whether or not you own the IP. People upload images they don't own all the time. Once again, your beef here is theft of services, not theft of IP. What the client stole from you was your labor, not your property. The client owns the property; there is no question of that. One cannot steal what one already owns....If you wanted to arrange it so you would own the IP in the event of the client's failure to pay, you should have specified that in a contract. But you didn't. And that's that. I'm not sure it's that black and white, Chosen. The OP says he has chat and IM logs. If they show that the agreement included that the OP would retain the rights to his textures, he may indeed have a basis for a DMCA takedown notice. If the record is silent on the issue of who retains the rights, then you are correct, it was a work for hire and the client owns the rights. _____________________ It's still My World and My Imagination! So there. Lindal Kidd
Kidd Krasner Registered User Join date: 1 Jan 2007 Posts: 1,938	10-29-2009 08:45 From: Lindal Kidd I'm not sure it's that black and white, Chosen. The OP says he has chat and IM logs. If they show that the agreement included that the OP would retain the rights to his textures, he may indeed have a basis for a DMCA takedown notice. If the record is silent on the issue of who retains the rights, then you are correct, it was a work for hire and the client owns the rights. Please check again, and see the Copyright Office's Circular 9, linked in a previous note.
Innula Zenovka Registered User Join date: 20 Jun 2007 Posts: 1,825	10-29-2009 09:24 From: Kidd Krasner But if we change your example to match DMCA circumstances, if the alleged offender sends a proper reply back to LL, then LL has a certain time frame in which to restore the deleted content. They don't need to decide any issues of law or fact, other than whether or not the reply they received meets the requirements. After that, LL is essentially out of the picture. The copyright owner would have to sue, and a court would decide whether or not an infringement took place. (LL could still be in the picture in terms of contributory infringement, as with the current Stroker suit, but that's a different ball of wax.) So, the long and the short of it is that if the customer disagrees with NewspaperGuy about what they'd agreed and contends that she or he is acting in good faith, then the customer needs to make a proper reply to LL, the content gets replaced, and NewspaperGuy and the customer will have to ask an appropriate RL court to sort things out for them.
Amaranthim Talon Voyager, Seeker, Curious Join date: 14 Nov 2006 Posts: 12,032	10-29-2009 11:20 Legalese aside, may I suggest next time, put stuff in a box and set it for sale- if the customer wants it - they pay- if not... _____________________ "Yield to temptation. It may not pass your way again. " Robert A. Heinlein http://talonfaire.blogspot.com/ Visit Talon Faire Main: http://slurl.com/secondlife/Misto%20Presto/216/21/155- Main Store XStreets: http://tinyurl.com/6r7ayn
Chokolate Latte Registered User Join date: 22 Dec 2007 Posts: 145	10-29-2009 11:53 From: Amaranthim Talon Legalese aside, may I suggest next time, put stuff in a box and set it for sale- if the customer wants it - they pay- if not... That's the best suggestion. That way neither side has to worry about trust. To recieve the customer has to pay, if they aren't happy with the work they don't have to go through with it and be accused of not paying. _____________________
Kidd Krasner Registered User Join date: 1 Jan 2007 Posts: 1,938	10-29-2009 13:38 From: Innula Zenovka So, the long and the short of it is that if the customer disagrees with NewspaperGuy about what they'd agreed and contends that she or he is acting in good faith, then the customer needs to make a proper reply to LL, the content gets replaced, and NewspaperGuy and the customer will have to ask an appropriate RL court to sort things out for them. Exactly. This part of the DMCA was primarily intended to protect service providers. Any benefit to copyright owners is secondary.

Welcome to the Second Life Forums Archive

Copyright / deals than people don't keep