Home » Copyright/Intellectual Property » A Response to Kboard User

A Response to Kboard User

20 September 2018

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.

Copyright/Intellectual Property

12 Comments to “A Response to Kboard User”

  1. Thanks for this PG, much appreciated.

    I checked my responses at Kboards and found over 30 pages. I’m debating what to do with them. Sifting through them is a trip down memory lane. Erasing my tracks there would be bitter-sweet, but I have yet to read anything positive about the new owners.

    Hate to quote a bad movie, but “All things end badly, or else they wouldn’t end.”

  2. This is not legal advice. As PG says, the way to get legal advice is to engage a lawyer. I was a lawyer in Australia (not in the US or in Canada) but no longer practice law. This is not legal advice and is not to be relied upon. For what its worth:

    This is a link to the KBoards Registration Agreement retrieved from the Wayback Machine 1 July 2017 snapshot, which seems to be the latest available for this page, though it is linked to from a 28 August 2018 snapshot:

    https://web.archive.org/web/20170701054543/http://www.kboards.com:80/show-reg-agreement.php

    You agree to the terms by using the forum. It is not a legally complex document and is fairly typical of many community forums.

    This is a short excerpt which seems to indicate that you retain the copyrights in your posts.

    “Content such as text and images that you post in this forum remain the property of the copyright owner(s), but while that content is posted on the forum it may be fairly used by the forum owner in other media settings; for example, in our blog or in guides or other promotional publications that the site may assemble and distribute from time to time.”

    My cursory opinion, which you cannot of course rely upon, is:

    The terms clearly contemplate that you may remove your posts, in which case any right for the owner to “fairly use” it ceases. If you were to delete your posts and the new owner was to restore them, I would think the restoration would amount to a breach of your copyright.

    The new owner may well seek to argue that their new terms operate to transfer the copyright to them, but quite apart from the other problems they would face the language they use seems apt only to catch new posts after the new terms became operative.

    I don’t know if the new terms purport to stop you deleting your old posts. So far as newer ones go they claim to own the copyright once you post them, so presumably they would take the view that they can legally prevent their deletion and repost them if necessary.

    The GDPR is probably of little comfort unless the new owner happens to have assets in Europe.

    Some interesting and not necessarily serious left-field thoughts. If you were to write as the copyright holder revoking any permission to use your posts on their site and demanding their removal, could you then follow-up with DMCA removal requests? Could you claim Statutory Damages if you registered your copyright and they re-posted after you removed them (and after registration)? Is the site susceptible at all to US jurisdiction?

    • Excellent additional information, Darryl.

      I was thinking about DMCA takedown notices myself this afternoon.

      • Curiously, even though VerticaScope is in Canada, is a Canadian company, and refers to a Canadian address for their DMCA takedown instructions, Canada has a slightly different “DMCA”. They call it “Notice and Notice”

        https://ic.gc.ca/eic/site/oca-bc.nsf/eng/ca02920.html

        The Canadian Notice and Notice requires:

        [QUOTE]What kind of information is included in a notice to consumers?
        The Copyright Act lists the specific information that must be included in a notice for it to comply with the Notice and Notice regime. Notices must:

        state the claimant’s name and address;
        identify the copyright material that is alleged to have been infringed and the claimant’s interest or right with respect to that material;
        specify the location data (e.g. the web address or Internet address associated with the alleged infringement);
        specify the infringement that is alleged; and
        specify the date and time of the alleged infringement.[/QUOTE]

        VerticalScope requires:

        [QUOTE]
        In accordance with the Digital Millennium Copyright Act of 1998 (“DMCA”), the text of which can be found on the U.S. Copyright Office website at: http://www.copyright.gov/legislation/dmca.pdf, we will respond to notices of alleged copyright infringement that comply with applicable law, are committed using our sites and services and are properly reported to our Copyright Agent identified below.

        A DMCA request can be sent to us via the contact information below:

        VerticalScope Inc.
        111 Peter Street, Suite 901
        Toronto, Ontario M5V 2H1
        Attention: Copyright Agent
        416-341- 8950
        Email: copyright@verticalscope.com

        In accordance with the DMCA, the written notice (the “DMCA Notice”) must include the following:

        A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
        Identification of the copyrighted work you believe to have been infringed or, if the claim involves multiple works on a Website, a representative list of such works.
        The URL or Internet location of the materials claimed to be infringing or to be the subject of infringing activity, or information reasonably sufficient to permit us to locate the material.
        Your name, address, telephone number and email address.
        A statement that you have a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
        A statement that the information in the written notice is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

        If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your DMCA Notice may not be effective.

        Please be aware that if you knowingly materially misrepresent that material or activity on a Website is infringing your copyright, you may be held liable for damages (including costs and attorneys’ fees) under Section 512(f) of the DMCA. You may want to consult an attorney before taking any action pursuant to the DMCA.
        [/QUOTE]

        https://www.verticalscope.com/copyright.html?site=skyscrapercity.com

        I am not a lawyer. Just putting this up here for ease of reference.

  3. While it would require pages and pages of sifting to get the quotes, essentially, the new owners have said that they’re required only to “anonymize” any data under GDPR.

    In effect, those who demanded to be deleted under GDPR are not going to be deleted. They have conveyed, in a public post, that they will remove PII from posts and that’s it.

    They have further doubled down on the ownership question by stating that they do, in fact, own entirely all content, to include images and can do with it whatever they want. Because…reasons.

    That said, the person who came on and said all that was an idiot. Poor spelling, poor grammar, off the cuff…everything a DCM shouldn’t be. I honestly don’t think they know the difference between a car parts or gun forum and one with writers. No offense to anyone, but the demographic is 180 and the content is not a picture of someone’s car, but a book cover. They even claim the corporate logos used by vendors!

    Many people have posts in excess of 10,000, and to manually delete each one would be a task so daunting it can’t logically be done. Some have mentioned hiring a Fiverr gig to do the repetitive work of deletion.

    I went ahead and powered through, and am about to fall below 1000 at last. Some I’m deleting, some I’m overwriting. Choosing which to overwrite and which to delete is based on search engine value.

    Some of the huge research posts which blew the KU Scammers thing wide open, the second Scammer round, the two lawsuits, and BookBub offerings research project (months of detailed work), I’m overwriting instead of deleting so that they are overwritten in the bin. Since they get a lot of google searches, the click will bring them to a post which states that the content is removed due to non-agreement with changes in TOS (and a byline that reveals what VS is doing). Hopefully, it will cause people to click backward in fear for their data.

    • Ann, this is excellent, as was your post on the thread. I’m still seeing some that think Kboards will be fine, your post spells out very well why that is wishful thinking.

      I’m working through my list still and just overwriting everything. Some of it was valuable info when it was written, but most has become dated.

      Still, its like deleting history.

  4. “RWood said: All things end badly, or else they wouldn’t end.”

    Thank you for that quote. I did not know that one.

    That seems to be the flip side of:

    “All’s Well That Ends Well”

    That’s two sides of the same coin with high value.

    When I look at coins like that, I always remember the edge of the coin, and try to figure out what that represents.

    Question: What would be an “ending” that fits between “All’s well” and “end badly”.

    One variation is:

    This is the way the world ends
    Not with a bang but a whimper.

    Please list any other possible “middle ending”.

    Thanks…

  5. “When I look at coins like that, I always remember the edge of the coin, and try to figure out what that represents.”

    Abstention? 🙂

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