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    Question Dmca

    Hey all, first off i live in australia lol that might be important since this is a legal question.

    Im making a site where people can post content - kinda like a forum. Accept i let them upload videos and pictures and embed videos from Youtube and other sites etc.

    Now there really is no way i can stop them from positing copyrighted stuff, and half the time i wont even know if it is or isnt copyrighted.

    So i saw this DMCA the other day, and im just wondering if this covers me for liability and what actions do i need to take?

    I dont know anything about law really, any help would be greatly appreciated haha i got no money so i don't really wanna get a law suit against me aha

    Thanks in advance, Nick
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    I'd just recommend answering every message you get where someone claims a violation, have a strong terms of service that you can delete anything you want and can cancel their access anytime you want. Then don't sweat it. Good luck with your site.
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    Word Painter silver trophy Shyflower's Avatar
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    Quote Originally Posted by PHPCamp.com View Post
    I'd just recommend answering every message you get where someone claims a violation, have a strong terms of service that you can delete anything you want and can cancel their access anytime you want. Then don't sweat it. Good luck with your site.
    I think this is really poor advice. Getty and Corbis are noticeably on the prowl for violators and they are talking big money.

    Nick, you need an intellectual property lawyer and you'd better have him draw up a bullet-proof TOU for you because both of the above will be shooting at it and looking for the the holes.

    I would "sweat it". Copyright infringement is no walk in the park and you "are" responsible for what you publish whether it's you or someone else on your site. Aside from damages, depending on the magnitude of the violation, you could be setting yourself up for a huge fine and even possible jail time. http://www.copyright.gov/title17/92appf.html
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    SitePoint Wizard TheRedDevil's Avatar
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    Unless your webpage is hosted in US, a DMCA notice in itself is nothing to worry about, since its only in US it makes server hosts tremble.

    However as Linda mentions, you are in most cases responsible for whats published. With other words, even if a DMCA will not work where your webpage is hosted. Then you can get sued according to the laws in the country the webpage is hosted.

    I would recommend that you talk with a lawyer regarding this as well, as if you dont it could end up as an expensive lesson.

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    I gotta say this is pretty devostating

    I live in Australia, but im hosting my site with bluehost (server in US).

    I'm 19 and have $0.0 in my bank account lol and just from what i've heard, lawyers arn't that cheap haha

    You guys/girls are kinda making me feel like even if i do get a good lawyer that i'll still have people trying to take me down haha is it even worth promoting the site? I've made it, its near full functionality, spent some serious time on it (coded entire thing from scratch) lol and now im too scared to get it going, not saying it would've been succesfull anyway (i do know how hard it is to get traffic to a site).

    Haha how much would it cost to get a TOU drawn up? And why can't a write one myself lol using a silimar sites TOU as a template (prob copyright infringement in itself haha)?

    Im kinda down, but i dont want any soft posts lol if this is a serious issue then id rather deal with the dissapointment now, rather than in jail haha

    Damn it!

    Should i wait and see if the site is going to be half succesful and then go get a lawyer lol maybe after i make some money?

    I dont even know why im posting, u guys just told me what i need to do lol
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    Word Painter silver trophy Shyflower's Avatar
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    The below is all my opinion. I am not a lawyer and not qualified to give legal advice.

    You're right. This is a serious issue. You can write your own tou. I think that many sites do. One thing I would put in it is that all posts will be reviewed and must be accompanied by proof of ownership or proof of rights to post it.

    I would look over different tou's and see what other similar sites do. I'd also look at the royalty free graphic sites and see what their terms are for accepting graphics from members.

    Use a bunch of sources (I recommend at least 5), read through each of them. Take notes on the points you want to make at your site and then write your terms of use in your own words.

    Also make it very clear in your membership registration that anyone who is dishonest in providing the appropriate proves of ownership or permissions will immediately have their membership terminated and all posts removed.

    There are several websites where you can buy reasonably priced TOU templates, but I believe you probably still will need to modify them to custom-fit them to your website.

    However, it won't hurt to take a look at a couple of them. I found the two sites below in a Google search. I have never purchased anything from either of them and these links are not a "recommendation" only a suggestion that you take a look and see what they have to offer, if it's reasonably priced (in your opinion) and if it fits what you need.

    Find Legal Forms
    Contract Edge (also has a template for a "content contributor".
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    SitePoint Wizard samsm's Avatar
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    Just to be contrary ...

    The DMCA protects U.S. businesses ... if you don't receive a notice, you, as a service provider, are ok. That is what the Online Copyright Infringement Liabiltiy Limitation Act is for.

    If you are embedding YouTube videos, the whole issue may be irrelevant ... that's YouTube's problem, not yours. Same deal with Flickr, ImageShare, etc. They are the host, you just have a link.

    Naturally it is more complex than that, but it isn't as simple as anyone else is saying either. I hate to see someone chased away from a site because of the legal boogieman, it is a chilling effect and has a detrimental impact on free speech.

    I'd say screw the lawyers ... at least until you do your own homework and asses the real risk against your desire to make this site ... not the hypothetical risk where the boogieman lawyers take you to jail in the night because you hummed "maneater" in the shower.
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    Word Painter silver trophy Shyflower's Avatar
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    Quote Originally Posted by samsm View Post
    Just to be contrary ...

    The DMCA protects U.S. businesses ... if you don't receive a notice, you, as a service provider, are ok. That is what the Online Copyright Infringement Liabiltiy Limitation Act is for.

    If you are embedding YouTube videos, the whole issue may be irrelevant ... that's YouTube's problem, not yours. Same deal with Flickr, ImageShare, etc. They are the host, you just have a link.

    Naturally it is more complex than that, but it isn't as simple as anyone else is saying either. I hate to see someone chased away from a site because of the legal boogieman, it is a chilling effect and has a detrimental impact on free speech.

    I'd say screw the lawyers ... at least until you do your own homework and asses the real risk against your desire to make this site ... not the hypothetical risk where the boogieman lawyers take you to jail in the night because you hummed "maneater" in the shower.
    The DMCA provides limitation of liability for online service providers for storing copyrighted material. I believe that means web hosts, not webmasters and not US Businesses.

    In my opinion, the advise you gave is "oversimplified".

    Nick, before you take any advice -- do the research and find authoritative, credible sources. Get your ducks in a row so that when you act, you KNOW you are doing the right thing to keep both you and your website safe.

    Here's what the US Copyright office says about the DCMA on their site:


    The Digital Millennium Copyright Act, signed into law on October 28, 1998, amended the United States Copyright Act, Title 17 of the U.S. Code, to provide in part certain limitations on the liability of online service providers (OSPs) for copyright infringement. Subsection 512(c) of the Copyright Act provides limitations on service provider liability for storage, at the direction of a user, of copyrighted material residing on a system or network controlled or operated by or for the service provider, if, among other things, the service provider has designated an agent to receive notifications of claimed infringement by providing contact information to the Copyright Office and by posting such information on the service providerís publicly accessible website.

    A summary of the DMCA is also available in PDF, but it is very legally technical, that's why I prefer to look things up in the laymen's terms at the US Copyright Web Site.
    Linda Jenkinson
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    Haha thanks all for the replies, some really good advice given here!

    Im going to go do some more research, check out some of the legal sites posted (will be cool to learn some legal stuff, im currently doing a BEngineering/BCommerce at uni) and write up my own TOU using similar sites to give me ideas (like YouTube, Stupid Videos etc). Im also going to make it clear on my site that it is illegal for users to post copyrighted material and that posts that appear to violate this term of use will be removed (ill prob check the site everyday anyway, lol i doubt im actually going to be getting that many posts).

    If the site starts seeing some good traffic etc, ill prob go out and get a lawyer (question: should i get an Australian lawyer or US? Since i live in Australia but the "copyrighted content" would be located in US). If the site dies i might give it one more year, or i might just drop it. Although i spent alot of time programming it, i learnt alot, so not all would be lost.

    I cant believe this issue is so big, i mean what about programs like Limewire haha file-sharing programs must be getting absolutely cained - remember napster.

    I feel so bad for the music artists lol even though they making heaps of money anyway, imagine how much they are losing by people downloading their music on the net!!! Would break my heart if i worked hard to produce something and then 50million people got it for free.

    Anyway, thanks heaps again! These forums are easily the most professional i've ever seen. What a community sitepoint have here!
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    Ok all, made some progress. Done a little bit of reading on the subject (sometimes the legal jargon frustrates me). Pretty much floaded my site with dont post copyrighted material statements and i'm in the process of writing up a "Terms Of Use" by looking at stupidvideos.com and youtube.com.

    Here is my new question...

    When others or myself are monitoring the posts what indicators should we look for in relation to possible copyright infringement?

    For example, if someone compiles a "best of the funny movies" video (using software they have taken parts from movies and made it into their own little production) is this copyright infringement?

    So in other words - are "best of" posts probably good to monitor closely?

    Can a person alter the material so much that infact it becomes theirs?

    Thanks in advance, hope everyone is well!
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    Well done Nick! Don't let all the legal mumbo-jumbo and the fear mongers scare you. The whole idea of the DMCA is to scare the you-know-what out of people. Policing it is a whole other story.

    My suggestion is exactly what YouTube does and they have violations practically every couple minutes. They get contacted by a distributor like UMG and they promptly take it down. No big deal. Focus on your business and not the sticky details. If you can't sustain the business then the DMCA means nothing because you won't be online.

    I never monitored any of the many forums I've been associated with because you can't. If you can then you don't have enough traffic. Seriously, you'll do fine. There's copyrighted stuff everywhere and I certainly don't condone it. It's wrong and immoral. But it happens and not just copyrighted material (words or images). There's also intellectual ideas (patents), offensive language and personal attacks on your members. You already have a big job just keeping members happy and the ideas flowing. Spend most of your time on that and if you happen to come across anything you don't think is right then take some action, your gut will tell you that something is wrong. Otherwise, relax and have fun.

    You might also use software that has a report to moderator link so your members can help police the boards. A strong member base is far better than you scanning it trying to be a copyright lawyer. GL
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    Quote Originally Posted by Shyflower View Post
    I think this is really poor advice. ...
    What part of responding to violations, having a strong TOS and removing offending messages do you disagree with? Nice try eh.
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    SitePoint Wizard samsm's Avatar
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    Quote Originally Posted by Shyflower View Post
    The DMCA provides limitation of liability for online service providers for storing copyrighted material. I believe that means web hosts, not webmasters and not US Businesses.
    He would be a "web host" for stuff people think is funny, just like YouTube is a web host for videos people want to upload. Both are protected by the DMCA.

    No it probably isn't that simple, but that is what the law is for ... to enable user participation on web sites without the service providers involved (webmasters, hosts, isps, all the way up the chain) exposing themselves to massive liability.

    I'm ignorant of cases where that process has failed a webmaster. Perhaps you are privy to such a situation, and that is what drives your skepticism?
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    Word Painter silver trophy Shyflower's Avatar
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    Quote Originally Posted by PHPCamp.com View Post
    What part of responding to violations, having a strong TOS and removing offending messages do you disagree with? Nice try eh.
    Responding to a violation complaint and removing the material is the first step. However, if you've been following the Getty threads in this forum, you know that it isn't enough. Publishing copyrighted material without appropriate permissions is both a civil and legal offense and taking it down after the fact doesn't necessarily stop litigation.

    Quote Originally Posted by samsm View Post
    He would be a "web host" for stuff people think is funny, just like YouTube is a web host for videos people want to upload. Both are protected by the DMCA.

    No it probably isn't that simple, but that is what the law is for ... to enable user participation on web sites without the service providers involved (webmasters, hosts, isps, all the way up the chain) exposing themselves to massive liability.

    I'm ignorant of cases where that process has failed a webmaster. Perhaps you are privy to such a situation, and that is what drives your skepticism?
    Google owns YouTube and they have the money and resources to go to court when they need to. If you've read any news stories about Google's legal battles, you know that they have done just that several times in the past.

    A web host is NOT an OSP which is what the DMCA protects. Follow the link I left. It is very clear what a DMCA is meant to do and it isn't meant to make it easy for webmasters to find loopholes in copyright.

    I failed to see where you mention any cases where a DMCA has protected a webmaster from litigation. In my opinion, you're better safe than sorry.
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    SitePoint Wizard samsm's Avatar
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    Quote Originally Posted by Shyflower View Post
    A web host is NOT an OSP which is what the DMCA protects.
    I don't think so. This site offers a more clear interpretation:
    http://www.chillingeffects.org/dmca512/faq.cgi#QID127
    A service provider is defined as "an entity offering transmission, routing, or providing connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received" or "a provider of online services or network access, or the operator of facilities thereof." [512(k)(1)(A-B)] This broad definition includes network services companies such as Internet service providers (ISPs), search engines, bulletin board system operators, and even auction web sites.
    And here's a newspaper story about how eBay qualified as an "online service provider".
    http://www.usatoday.com/tech/columni.../13/sinrod.htm
    Judge Kelleher found that there was "no dispute" that eBay was a service provider within the meaning of the DMCA. He also found that eBay met the DMCA's broad definition of an online service provider.
    It's basically anyone with a passive role in the content delivery.
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    Word Painter silver trophy Shyflower's Avatar
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    Quote Originally Posted by samsm View Post
    I don't think so. This site offers a more clear interpretation:
    http://www.chillingeffects.org/dmca512/faq.cgi#QID127


    And here's a newspaper story about how eBay qualified as an "online service provider".
    http://www.usatoday.com/tech/columni.../13/sinrod.htm


    It's basically anyone with a passive role in the content delivery.
    and the rest of the story... (and of course there's more to it than what's below).

    For example, to qualify for the Safe Harbor in this context, eBay had as a condition a duty to act upon receipt of proper notice of alleged infringement. In this case, the judge concluded that eBay did not have a duty because the notice provided by Hendrickson was inadequate. Hendrickson failed to provide sufficient information identifying the alleged pirated copies and none of his communications stated under oath that the information he submitted was accurate, that he was authorized to act on behalf of the owner of copyright at issue, or that the use of the copyrighted work was not authorized.

    Moreover, Judge Kelleher determined that eBay's limited voluntary monitoring of its Web site for infringement under the VeRO program did not constitute a right and ability to control the infringing activities under the DMCA. Indeed, the judge thought that a company such as eBay should not be "penalized" for engaging in voluntary efforts to "combat piracy over the Internet."
    It's real easy to take things out of context. E-bay won essentially because Hendrickson fouled up.

    And like, YouTube, e-bay has a gaggle of high-profile attorneys and the money to withstand litigation whichever way the wind blows.
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    SitePoint Wizard samsm's Avatar
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    Quote Originally Posted by Shyflower View Post
    It's real easy to take things out of context. E-bay won essentially because Hendrickson fouled up.
    The point was that eBay, like the original poster's site (not just ISPs), can qualify under the DMCA. Once under that system, a sequence has to be followed, included what is commonly referred to as the "DMCA takedown notice", which has to include a checklist of information.

    In eBay's case, the copyright owner failed to properly assert that he was the copyright owner per the DMCA provisions, case dismissed. That's the way it is supposed to work. You play by the rules, you don't get (successfully) sued.

    Of course, someone could sue you anyway: they could retest that eBay decision, they could sue you because they don't like what you said on your blog, or say you owe a billion dollars because your site concept infringed on their ridiculously broad patent. Maybe only companies with large legal departments should make websites. To me, a pessimistic stance where the future of the internet is left to the communication giants of the world is way sorrier than it is safe.

    Also, it works both ways. Google, eBay, et al have a lot of money so they can defend lawsuits, but the fact that they have a lot of money is probably why the were sued in the first place.
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    Haha you are all right

    This is why law is so hard lol words have so many different meanings!

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    SitePoint Addict BlazeMiskulin's Avatar
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    Quote Originally Posted by samsm View Post
    The point was that eBay, like the original poster's site (not just ISPs), can qualify under the DMCA.
    Of course, someone could sue you anyway: they could retest that eBay decision, they could sue you because they don't like what you said on your blog, or say you owe a billion dollars because your site concept infringed on their ridiculously broad patent. Maybe only companies with large legal departments should make websites. To me, a pessimistic stance where the future of the internet is left to the communication giants of the world is way sorrier than it is safe.
    It should also be noted that every time one of the "big boys" gets sued and wins, it's a win for everyone else. It sets a relevant precedent against which other lawyers can leverage their claims.

    It should also be noted that in situations not involving copyright or trademark issues, web hosts are already explicitly protected in cases involving user-provided content (e.g. Craigslist and illegal ads).

    It's certainly not cut & dried (the law rarely is), but there's a respectable basis for immunity claims by web hosts, webmasters, etc., in cases involving user-created content.
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    Word Painter silver trophy Shyflower's Avatar
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    Quote Originally Posted by BlazeMiskulin View Post
    It should also be noted that every time one of the "big boys" gets sued and wins, it's a win for everyone else. It sets a relevant precedent against which other lawyers can leverage their claims.

    It should also be noted that in situations not involving copyright or trademark issues, web hosts are already explicitly protected in cases involving user-provided content (e.g. Craigslist and illegal ads).

    It's certainly not cut & dried (the law rarely is), but there's a respectable basis for immunity claims by web hosts, webmasters, etc., in cases involving user-created content.
    Here's the thing Blaze... Nick says he has a $0 bank account. Before you go to court, it helps to have the money to pay the legal fees. He's much better off scraping a few bucks together to get a good tos written and get his ducks in a row before he opens his site to the public.

    To suggest that he needn't worry because e-bay (with their $$millions) prevailed in a lawsuit is foolhardy advice at best. I'm pretty sure that e-bay had the bucks to go to court.
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    SitePoint Addict BlazeMiskulin's Avatar
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    Quote Originally Posted by Shyflower View Post
    Here's the thing Blaze... Nick says he has a $0 bank account. Before you go to court, it helps to have the money to pay the legal fees. He's much better off scraping a few bucks together to get a good tos written and get his ducks in a row before he opens his site to the public.

    To suggest that he needn't worry because e-bay (with their $$millions) prevailed in a lawsuit is foolhardy advice at best. I'm pretty sure that e-bay had the bucks to go to court.
    I never said that he shouldn't worry, and I never gave any advice. In fact, I never mentioned--nor even alluded to--him at all. So the implication of foolhardiness is somewhat misplaced.

    What I said was addressing the larger picture. The lawsuits that giants such as eBay, Google, Yahoo, Craigslist, and others are now fighting (or have fought previously) are creating a legal foundation which will help to protect lesser corporations and individuals. Maybe not right now, maybe not real soon, and almost certainly without certainty.

    It was suggested that only the "big boys" can avail themselves of the legal process. It was implied that only those with billions in assets have the ability to win in court. And that's simply not true.

    The cases which the "big boys" have fought and won are creating a foundation upon which lesser persons can build a defense--assuming they have the resources and the fortitude to mount a defense. And every win by someone farther down the ladder adds more bricks to that foundation, until eventually the cost of pursuing prosecution outweighs the chance of benefit.

    Should someone with $0 in their bank account throw away prudent precautions and stride into the arena with a presumed aura of immunity? Absolutely not. It was not said, it was not implied. And it certainly was not advised.

    It is, however, entirely reasonable for a lesser player to look at the interpretations handed down by the courts in cases involving "the big boys" and use them as guide posts when choosing the direction in which to steer their company.

    As much as people seem to think otherwise, the law can't--and doesn't--say "Yeah, but you're not Google, so it doesn't apply to you". While the original adversaries may spend millions in defense of their positions, the judgments apply across the board. If it applies to Google, it probably applies to "Bob's Search-o-Matic". If it applies to Craigslist, it probably applies to "Bubba's Bargain Ads".

    It's still going to take a lawyer to argue the case and explain how the "little dogs" fit into the same category as the "big dogs", but the big dogs' lawyers have already done all the hard work; the precedent has been created.

    Every one of us lives in the shadow of the billion-dollar corporations. We live and die according to the precedents they set--both in the business arena and the legal arena. Until any of us have the great fortune of becoming a "big dog", it's up to us to look at the established precedents and use them to make an informed decision on how to proceed.

    The precedents set the odds. It's up to the individual to decide what--if anything--to wager.
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    Word Painter silver trophy Shyflower's Avatar
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    Quote Originally Posted by BlazeMiskulin View Post
    I never said that he shouldn't worry, and I never gave any advice. In fact, I never mentioned--nor even alluded to--him at all. So the implication of foolhardiness is somewhat misplaced.

    What I said was addressing the larger picture. The lawsuits that giants such as eBay, Google, Yahoo, Craigslist, and others are now fighting (or have fought previously) are creating a legal foundation which will help to protect lesser corporations and individuals. Maybe not right now, maybe not real soon, and almost certainly without certainty.

    It was suggested that only the "big boys" can avail themselves of the legal process. It was implied that only those with billions in assets have the ability to win in court. And that's simply not true.

    The cases which the "big boys" have fought and won are creating a foundation upon which lesser persons can build a defense--assuming they have the resources and the fortitude to mount a defense. And every win by someone farther down the ladder adds more bricks to that foundation, until eventually the cost of pursuing prosecution outweighs the chance of benefit.

    Should someone with $0 in their bank account throw away prudent precautions and stride into the arena with a presumed aura of immunity? Absolutely not. It was not said, it was not implied. And it certainly was not advised.

    It is, however, entirely reasonable for a lesser player to look at the interpretations handed down by the courts in cases involving "the big boys" and use them as guide posts when choosing the direction in which to steer their company.

    As much as people seem to think otherwise, the law can't--and doesn't--say "Yeah, but you're not Google, so it doesn't apply to you". While the original adversaries may spend millions in defense of their positions, the judgments apply across the board. If it applies to Google, it probably applies to "Bob's Search-o-Matic". If it applies to Craigslist, it probably applies to "Bubba's Bargain Ads".

    It's still going to take a lawyer to argue the case and explain how the "little dogs" fit into the same category as the "big dogs", but the big dogs' lawyers have already done all the hard work; the precedent has been created.

    Every one of us lives in the shadow of the billion-dollar corporations. We live and die according to the precedents they set--both in the business arena and the legal arena. Until any of us have the great fortune of becoming a "big dog", it's up to us to look at the established precedents and use them to make an informed decision on how to proceed.

    The precedents set the odds. It's up to the individual to decide what--if anything--to wager.
    Blaze -- I wasn't talking about your advise. You only gave information. My post referred to some of the advice that came before it. I certainly respect and accept what you posted, but also, as you said, "It's still going to take a lawyer to argue the case and explain how the 'little dogs' fit into the same category as the 'big dogs.'"
    Linda Jenkinson
    "Say what you mean. Mean what you say. But don't say it mean." ~Unknown

  23. #23
    SitePoint Wizard samsm's Avatar
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    Quote Originally Posted by BlazeMiskulin View Post
    The precedents set the odds. It's up to the individual to decide what--if anything--to wager.
    Well put, this is what is actually in dispute here.

    I think the odds of the thread starter actually being sued are very very low, based on three overlapping factors.
    1. DMCA creates a complaint procedure that can be (cheaply) short-circuited by doing what the copyright holder wants.
    2. There are tons of user-driven content sites (anyone here with a forum in their signature) and no relevant lawsuit examples.
    3. What is a copyright holder's motivation? Send a free notice and probably get the desired result, or rack up $100,000+ suing some kid who has insignificant assets over a legally flimsy case?

    I think the conflicting argument is that even if the odds are low, the potential cost of dealing with legal issues are too great to risk if you don't have much capital.
    Using your unpaid time to add free content to SitePoint Pty Ltd's portfolio?


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