PG responded to a question from Kboard User about the validity of the assignment of copyrights for the comments and contributions of Kboards participants to the new owner of Kboards, Verticalscope, Inc., via a new Terms of Service Verticalscope recently inserted on Kboards.
While his original response was in the comments to a prior post PG decided to also post a copy of his response as a new post.
Kboard User – You are correct that this is not legal advice or a legal opinion.
I’ll also note that the new TOS designates Canadian law as governing legal disputes arising under the TOS. My comments are definitely not legal advice about Canadian law.
Most TOS documents are designed to limit the liability of the person or entity which owns/controls the online property – “Don’t sue us if you follow advice that somebody has posted here and a disaster occurs.”
A typical TOS will include a statement that it’s OK for the site owner to do what it has the technical capability to do, kick a troublemaker off the site and delete their nasty comments.
As far as transferring copyright ownership of posts, comments, etc., to VerticalScope via a modified TOS, I have some substantial doubts that most US courts would recognize such a transfer as binding on both parties.
I have even further doubts that if the TOS in place when a post or comment was made did not purport to transfer copyright ownership that a future modification of the TOS could retroactively effect a binding transfer.
While there are numerous exceptions, under US law, a contract is typically formed when two parties come to a meeting of the minds and agree to enter into an agreement for some purpose.
Again with exceptions, in order for a US court to enforce a contract between two parties, the contract should be in writing and signed by both parties. A party’s signature is a well-established indication that the party is agreeing to be bound by a contract. If you want to learn a bit more about this topic, you can go to Wikipedia and read the entry on Statute of Frauds – https://en.wikipedia.org/wiki/Statute_of_frauds.
A typical TOS that just sits somewhere on a website will often have a provision that says something like, “By using this site, you agree to be bound by this TOS.”
From the standpoint of contract law, this approach can be criticized on a couple of bases:
1. It’s not signed by the user, indicating the user agrees to be bound by the TOS. This may be a problem under the Statute of Frauds.
2. There is no indication that there was any sort of meeting of minds or intent to enter into that specific TOS/agreement by the user. If this is the case, a contract binding the user may not have come into existence.
In some cases, in order to register for access to a website or post comments, the owner of the site may require some action on the part of the user – “Click here to indicate you agree to be bound by the Terms of Service” or “By typing your initials into this box, you are entering into the following agreement.”
This approach is designed to avoid the arguments that a contract was not formed and that the user didn’t sign the contract.
In the world of paper contracts, if a party could not write his/her name, they could execute a contract by physically making a mark with a pen, pencil to indicate their agreement to be bound by the contract. (X was commonly used)
This same general principle applies to illegible signatures (like PG’s) on contracts.
The argument is that hitting the Enter key or typing a user’s initials is equivalent to a valid signature or a digital signature.
Circular 1 “Copyright Basics” published by the U.S. Copyright Office is a general summary about various aspects of U.S. Copyright Law. It is not the law itself but is a reasonable statement about the law from a reputable source.
Here’s what Circular 1 says about the transfer of ownership of a copyright:
“Any or all of the copyright owner’s exclusive rights, or parts of those rights, can be transferred. The transfer, however, generally must be made in writing and signed by the owner of the rights conveyed or the owner’s authorized agent. Transferring a right on a nonexclusive basis does not require a written agreement.”
Here’s a link to a PDF of Circular 1 – https://www.copyright.gov/circs/circ01.pdf
The U.S. Copyright Office has also issued Circular 12 – Recordation of Transfers and Other Documents
Here is part of what Circular 12 says about transfers of copyrights:
“Recording a transfer of copyright ownership or other document pertaining to a copyright with the Copyright Office under section 205 is voluntary. However, to encourage document recordation, the law confers certain legal advantages, including priority between conflicting transfers and “constructive notice” of the facts stated in the recorded document to the public if certain requirements are met.”
. . . .
“A ‘transfer of copyright ownership’ is an assignment, mortgage, grant of an exclusive license, transfer by will or intestate succession, or any other conveyance, alienation, or hypothecation of any or all of the exclusive rights in a copyright, whether or not it is limited in time or place of effect. It does not include a nonexclusive license. See 17 U.S.C. § 101 (definition of “transfer of copyright ownership”).
A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance (for example, contract, bond, or deed) or a note or memorandum of the transfer is in writing and is signed by the owner of the rights conveyed or the owner’s duly authorized agent. See 17 U.S.C. § 204(a).”
Here’s a link to a PDF of Circular 12 – https://www.copyright.gov/circs/circ12.pdf
Finally, here is the text of 17 U.S.C. § 204(a) (The Circulars described above are essentially the opinion of the Copyright Office about what the law is. The following is actually the statutory language)
“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.”
Again, this is US copyright law, not the copyright law of Canada or another nation.
PG has not reviewed the contents of the KBoards TOS prior to the sale to its new owners to see if there was any sort of signature process that could be construed to be a grant of the member’s copyright in and to his/her comments, posts, etc.
On its face, the US statute cited above appears to require some sort of written instrument signed by the owner of the copyright in order transfer the copyright to someone else.
Again, this comment is not a legal opinion or legal advice. You obtain legal advice by retaining an attorney to provide such advice to you.