Is user generated content owned by the webmaster or the creator of the content?
October 12, 2010 11:00 AM Subscribe
Is user generated content (ie meta filter discussion) owned by the webmaster or the creator of the content?
Here's an example: I was looking at a site like wireddeals.com which aggregates the best deals from 2 other websites: slickdeals and fatwallet (both user community sites). Wired deals scrapes their feeds and ranks the hottness of the deals across the sites. Is wireddeals legally allowed to use the "hottness" of other forums discussion to profit by presenting the data in a new way?
What I think the question boils down to is whether the content creator (user of the site) owns the content they create or if they are (in some way maybe through TOU) licensing the use of their comments and postings to a site like slickdeals.
And if you want to blame anyone for the boring question, it was sparked by reading http://www.niemanlab.org/2010/09/whats-the-law-around-aggregating-news-online-a-harvard-law-report-on-the-risks-and-the-best-practices/
Here's an example: I was looking at a site like wireddeals.com which aggregates the best deals from 2 other websites: slickdeals and fatwallet (both user community sites). Wired deals scrapes their feeds and ranks the hottness of the deals across the sites. Is wireddeals legally allowed to use the "hottness" of other forums discussion to profit by presenting the data in a new way?
What I think the question boils down to is whether the content creator (user of the site) owns the content they create or if they are (in some way maybe through TOU) licensing the use of their comments and postings to a site like slickdeals.
And if you want to blame anyone for the boring question, it was sparked by reading http://www.niemanlab.org/2010/09/whats-the-law-around-aggregating-news-online-a-harvard-law-report-on-the-risks-and-the-best-practices/
It's variable, depending on the agreement in place on each site (Terms and Conditions, usually). As web 3.0 value is usually predicated on user-based content, a lot of (big) sites will claim ownership of user-generated content on that site for marketing, resale, what-have-you.
posted by L'Estrange Fruit at 11:11 AM on October 12, 2010
posted by L'Estrange Fruit at 11:11 AM on October 12, 2010
Best answer: My understanding is that copyright always belongs to the content creator and that many user agreements license the content permanently so they site can do what they want, i.e., use your content on promotional materials.
The thing you're describing sounds iffy because it's not an aggregation of an aggregation but 'borrowing' the content, and I think then it gets into whether the 'borrowing' is transformative or not, meaning whether it turns it into something new and adding new value.
That's what I think I understood from our last three-hour Powerpoint from legal, anyway.
/clunk
posted by A Terrible Llama at 11:15 AM on October 12, 2010 [3 favorites]
The thing you're describing sounds iffy because it's not an aggregation of an aggregation but 'borrowing' the content, and I think then it gets into whether the 'borrowing' is transformative or not, meaning whether it turns it into something new and adding new value.
That's what I think I understood from our last three-hour Powerpoint from legal, anyway.
/clunk
posted by A Terrible Llama at 11:15 AM on October 12, 2010 [3 favorites]
Best answer: It's variable, depending on the agreement in place on each site (Terms and Conditions, usually)
And the laws in whatever jurisdiction the civil legal dispute would be settled in. In the US for instance, I believe a minor cannot legally enter into a business contract or other agreement to assign the copyright of their works to someone else unless their parents sign onto the agreement. So even if the fine print says that any user of the site agrees to certain conditions, there is no guarantee that those conditions will actually be legally enforceable when the case ends up in court.
posted by burnmp3s at 11:27 AM on October 12, 2010 [1 favorite]
And the laws in whatever jurisdiction the civil legal dispute would be settled in. In the US for instance, I believe a minor cannot legally enter into a business contract or other agreement to assign the copyright of their works to someone else unless their parents sign onto the agreement. So even if the fine print says that any user of the site agrees to certain conditions, there is no guarantee that those conditions will actually be legally enforceable when the case ends up in court.
posted by burnmp3s at 11:27 AM on October 12, 2010 [1 favorite]
The terms of service vary. For example Facebook basically takes the stance "all your words r belong to us". But Tumblr says you own everything.
Naturally sites must acquire some right to actually publish what you write, but they vary in what rights they give themselves. e.g. Whether they have a right to do that forever regardless of you changing your mind, and whether they can do anything with your content other than just show it as-is.
posted by philipy at 11:57 AM on October 12, 2010 [1 favorite]
Naturally sites must acquire some right to actually publish what you write, but they vary in what rights they give themselves. e.g. Whether they have a right to do that forever regardless of you changing your mind, and whether they can do anything with your content other than just show it as-is.
posted by philipy at 11:57 AM on October 12, 2010 [1 favorite]
Response by poster: Thanks for the answers. How does metafilter feel about the content thats created on these sites? Are they "licensing" user's content to themselves (by making a new user agree to their TOU)?
posted by msoffab at 12:18 PM on October 12, 2010
posted by msoffab at 12:18 PM on October 12, 2010
Someone said it above -
"© 1999-2010 MetaFilter Network Inc.
All posts are © their original authors.
FAQ | Contact"
posted by Ahab at 12:28 PM on October 12, 2010
"© 1999-2010 MetaFilter Network Inc.
All posts are © their original authors.
FAQ | Contact"
posted by Ahab at 12:28 PM on October 12, 2010
How does metafilter feel about the content thats created on these sites? Are they "licensing" user's content to themselves (by making a new user agree to their TOU)?
For specific answers to that, email the mods. Or start a metatalk post (that's where questions/discussion about site policy go).
posted by rtha at 1:08 PM on October 12, 2010
For specific answers to that, email the mods. Or start a metatalk post (that's where questions/discussion about site policy go).
posted by rtha at 1:08 PM on October 12, 2010
I'm not a lawyer but I'm involved in a copyright lobbying organisation with 20k members and I do talks on copyright.
Copyright is a balance of public and private rights, they're not a conventional property right. The private rights are that copyright holders are allowed to restrict most copying. E.g. selling copies to the public. The public rights are the ability to copy things without permission because it's viewed as a public good. E.g. if those who have private copyrights could control quotation then that would restrict journalism, effective commentary, and free speech. If search engines had to individually negotiate with websites then that would make companies like Google impractical; potentially harming certain business models and the wider economy. In the US there are public rights like the First Sale Doctrine which means that if you buy a book you can sell it for whatever price you wish (the book itself can't have a license that restricts you from onselling at a price lower than that of the publisher).
Although it's possible to transfer copyright most websites don't do this and they only ask that you 1) have permission to license it and that 2) you license it (e.g. this is all that's demanded of Wikipedia, Facebook, Tumblr, and most contributions to Free Software/Open Source projects). Facebook and Tumblr definitely do not say that they become the copyright holder but users grant them a license to use it.
When a person takes an existing copyrighted work and adds to it or changes it significantly (remix/mashup/etc) then it's possible that the new work is not copyright encumbered by the legacy copyright. This is the difference between a "transformative" work which is unencumbered, and a derivative work which is encumbered. It's quite possible that significant remixes of copyrighted work could be deemed transformative and therefore be unencumbered by the copyrighted material that they've used. There are no clear rules here and this grey area between transformative and derivative is decided by the courts.
Whether the contract is valid is a matter for the courts. My general impression is that courts typically rule in favour of EULAs, saying that they are valid and enforceable.
Again, this isn't an easy question and I can imagine courts deciding either way depending on which way the wind was blowing that day.
You're right of course that the laws of the jurisdiction of the dispute will apply. It's usually better to ignore the infrastructure of the internet (which just confuses the issue) and instead to focus on where the copying occurred and whether any laws were broken in that jurisdiction.
By reading this comment you 1) agree to not sue me for legal advice because this isn't legal advice and 2) grant me an irrevocable right to use your eternal soul as a foot stool
posted by holloway at 3:47 PM on October 12, 2010 [1 favorite]
Copyright is a balance of public and private rights, they're not a conventional property right. The private rights are that copyright holders are allowed to restrict most copying. E.g. selling copies to the public. The public rights are the ability to copy things without permission because it's viewed as a public good. E.g. if those who have private copyrights could control quotation then that would restrict journalism, effective commentary, and free speech. If search engines had to individually negotiate with websites then that would make companies like Google impractical; potentially harming certain business models and the wider economy. In the US there are public rights like the First Sale Doctrine which means that if you buy a book you can sell it for whatever price you wish (the book itself can't have a license that restricts you from onselling at a price lower than that of the publisher).
Although it's possible to transfer copyright most websites don't do this and they only ask that you 1) have permission to license it and that 2) you license it (e.g. this is all that's demanded of Wikipedia, Facebook, Tumblr, and most contributions to Free Software/Open Source projects). Facebook and Tumblr definitely do not say that they become the copyright holder but users grant them a license to use it.
When a person takes an existing copyrighted work and adds to it or changes it significantly (remix/mashup/etc) then it's possible that the new work is not copyright encumbered by the legacy copyright. This is the difference between a "transformative" work which is unencumbered, and a derivative work which is encumbered. It's quite possible that significant remixes of copyrighted work could be deemed transformative and therefore be unencumbered by the copyrighted material that they've used. There are no clear rules here and this grey area between transformative and derivative is decided by the courts.
Are they "licensing" user's content to themselves (by making a new user agree to their TOU)?Yes. A license is a contract and they're attempting to get a user to agree to the EULA by clicking through it.
Whether the contract is valid is a matter for the courts. My general impression is that courts typically rule in favour of EULAs, saying that they are valid and enforceable.
Is wireddeals legally allowed to use the "hottness" of other forums discussion to profit by presenting the data in a new way?That depends on who has the most lawyers. It's not an easy question.
What I think the question boils down to is whether the content creator (user of the site) owns the content they create or if they are (in some way maybe through TOU) licensing the use of their comments and postings to a site like slickdeals.A content creator holds copyright but they cannot restrict some uses of their content (e.g. the public rights). It may be the case that, like Google images, the wireddeals/slickdeals site merely aggregates certain types of content. This may be covered under public rights or it may be a question of deciding whether it's transformative or derivative.
Again, this isn't an easy question and I can imagine courts deciding either way depending on which way the wind was blowing that day.
And the laws in whatever jurisdiction the civil legal dispute would be settled in.It may be criminal or civil depending on the type of infringement (scale, commercial or not, etc.).
You're right of course that the laws of the jurisdiction of the dispute will apply. It's usually better to ignore the infrastructure of the internet (which just confuses the issue) and instead to focus on where the copying occurred and whether any laws were broken in that jurisdiction.
© 1999-2010 MetaFilter Network Inc.I haven't transfered my copyright to Metafilter so of course I'm still the copyright holder of this comment and there's no license granted to Metafilter allowing them to broadcast copies of it to readers and search engines. There's (obviously) an implicit understanding that this will happen but MeFi don't appear to be dealing with this through legal constructs so don't look to that short copyright statement for any legal reason of why MeFi is legally able to distribute contributions to the site.
All posts are © their original authors.
By reading this comment you 1) agree to not sue me for legal advice because this isn't legal advice and 2) grant me an irrevocable right to use your eternal soul as a foot stool
posted by holloway at 3:47 PM on October 12, 2010 [1 favorite]
It seems a little dubious to posit that you don't grant Metafilter a license to distribute your comments when you hit POST, holloway, given that's exactly what a comment is. It's like saying that you don't give a barber permission to cut your hair when you pay them for a haircut.
posted by Justinian at 5:37 PM on October 12, 2010
posted by Justinian at 5:37 PM on October 12, 2010
Justinian: As said in my comment there's an implicit understanding this will happen but there's no explicit legalese that grants the rights that we presume exist. The brief copyright message that people are quoting doesn't answer the question of under which legal rights Metafilter distributes comments. This is odd because most other sites make this explicit through licensing but Metafilter doesn't. If the copyright stays with the original author then Metafilter would need an explicit license (which I can't find), or some kind of public rights argument (Fair Use, Fair Dealing) but a public rights argument isn't applicable to how Metafilter uses the content. It seems much more likely that Metafilter should be a license but doesn't.
To put it back on you, if submitting comments is enough to grant licensing rights then almost every other website has it wrong (wikipedia's legal team, youtube's legal team, facebook, twitter, etc.).
Comparing legal concepts of rights with that of physical property won't get you far in copyright law. Hair isn't taken from others without their permission and cut on my behalf. People don't cut and paste together hair from multiple sources as part of good journalism. If I lived in the US I wouldn't have a First Amendment right to cut off a politicians hair and sell it without his permission. It only gets more absurd the more you compare copyright to physical property.
posted by holloway at 7:39 PM on October 12, 2010
To put it back on you, if submitting comments is enough to grant licensing rights then almost every other website has it wrong (wikipedia's legal team, youtube's legal team, facebook, twitter, etc.).
Comparing legal concepts of rights with that of physical property won't get you far in copyright law. Hair isn't taken from others without their permission and cut on my behalf. People don't cut and paste together hair from multiple sources as part of good journalism. If I lived in the US I wouldn't have a First Amendment right to cut off a politicians hair and sell it without his permission. It only gets more absurd the more you compare copyright to physical property.
posted by holloway at 7:39 PM on October 12, 2010
And again I'm answering this in the context of a legal question around copyright. I'm not actually saying that there's a problem here.
posted by holloway at 7:41 PM on October 12, 2010
posted by holloway at 7:41 PM on October 12, 2010
Folks if you want to discuss how this works on MetaFilter.com, take it to MetaTalk. We're not going to comment on site policy and etc in someone else's AskMe thread.
posted by jessamyn at 8:11 AM on October 13, 2010
posted by jessamyn at 8:11 AM on October 13, 2010
This thread is closed to new comments.
"All posts are © their original authors."
posted by chrisamiller at 11:01 AM on October 12, 2010 [1 favorite]