Craigslist Demands 'Exclusive License' On Your Posts

from the good-luck-with-that... dept

When Craigslist sued PadMapper and 3taps, we questioned the legal basis for much of the lawsuit, in particular the claim that Craigslist even could sue over copyright, when any copyrightable content is created by the end-users and not Craigslist itself. It appears that someone at Craigslist realized that it was somewhere very close to the Righthaven line in claiming a bare right to sue over someone else's work, and made a tweak, demanding "exclusive" rights.

I first saw this via Slashdot on the Baligu blog, and was trying to go through the legal implications, but thankfully, Tim Lee over at Ars Technica did all the heavy lifting for us in speaking to IP lawyers James Grimmelmann and Mark Lyon who are quite skeptical of this move.

What's odd is that this "change" isn't even to its terms of use, which don't actually claim an exclusive license. Instead, the company has just added text to the posting page saying that you are granting the company such a right:
Clicking "Continue" confirms that craigslist is the exclusive licensee of this content, with the exclusive right to enforce copyrights against anyone copying, republishing, distributing or preparing derivative works without its consent.
The theory, as Lee notes, is probably that by more forcefully claiming exclusive rights, perhaps it can get over the hump and have the right to actually enforce those copyrights -- but that legal theory is speculative at best.

It's kind of interesting, because someone could also potentially argue that this statement contradicts the company's own terms of use since they're different but perhaps more interesting are the wider legal questions raised by this -- including what happens if you, the user, post your classified ad to any other site. Craigslist seems to be claiming that it can go after those other sites (and, um, potentially you, I think...) for reposting "its" work. That's crazy and something that completely goes against Craigslist's standard "user-friendly" approach to everything.

Once again, this is showing how Craigslist's pursuit of these kinds of legal issues really seems to go against what made Craigslist so successful, turning the company into much more of a cranky legal bully. Lots of companies that start out innovative and open, do later change and flip sides on things like this, but Craigslist always seemed like the kind of company that would stay on the right side of the "evil line." It's too bad to see that it seems to be so aggressively diving over to the copyright bully side of the line.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Anonymous Coward, Aug 2nd, 2012 @ 4:09am

    If they claim they own the content, not just the typical licenses required to actually do the work they do... What would be the implications to the safe harbours they assume they enjoy?

    Any great legal minds here that could clarify?

     

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  2.  
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    Planespotter (profile), Aug 2nd, 2012 @ 4:10am

    "Lots of companies that start out innovative and open, do later change and flip sides on things like this"...

    mmm like Apple?

     

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  3.  
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    Anonymous Coward, Aug 2nd, 2012 @ 4:16am

    sounds like it's time for Craigslist to bite the dust, or maybe just be listed on another page?

     

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  4.  
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    Paul, Aug 2nd, 2012 @ 4:20am

    Is anyone actually defending one of these suits from Craigslist or do they all just cave at the first sign of a "cease and desist"?

    It might be an interesting precedent and judging by Craigslist moves I'd say they might have a good chance of calling Craigslist bluff here, and Craigslist know it!

     

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  5.  
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    Anonymous Coward, Aug 2nd, 2012 @ 4:26am

    Craiglist is putting itself into a position where some smart startup can just swoop in and eat their lunch.

    Not a smart move in the web business, where empires rise and fall constantly and quickly.

     

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  6.  
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    John Doe, Aug 2nd, 2012 @ 4:59am

    Re:

    That is an excellent point. Have they just given up their section 230 safe harbors?

     

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  7.  
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    droozilla (profile), Aug 2nd, 2012 @ 5:00am

    Won't somebody please think of the prostitutes?!!

     

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  8.  
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    snidely (profile), Aug 2nd, 2012 @ 5:01am

    Re:

    I had a similar thought -- is Craigslist now responsible for any libelous or infringing work posted to their site? This might come back to bite them.

     

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  9.  
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    Anonymous Coward, Aug 2nd, 2012 @ 5:29am

    >>

    Good thing some real journalist did the hard work so you could just ride his coattails.

     

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  10.  
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    Rob, Aug 2nd, 2012 @ 5:48am

    Just Wondering

    Couldn't you then just add into your listing text that exclusive licensing writes are forfeit by Craig List when and if Craig’s List post the ad to the internet?

    I’m not a lawyer but if you can click away a licence, cant they post themselves out of one?

     

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  11.  
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    Anonymous Coward, Aug 2nd, 2012 @ 5:54am

    Is this a real example of actual theft of copyright?

     

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  12.  
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    Anonymous Coward, Aug 2nd, 2012 @ 6:03am

    An exclusive licensee is an "owner" of a copyright

    This is a tricky point under the 1976 act.

    The majority view among the courts is that an exclusive licensee is an “owner” of a copyright. Ownership is a prerequisite to maintain an action for copyright infringment.

    17 USC § 501 - Infringement of copyright
    (b) The legal or beneficial owner of an exclusive right under a copyright is entitled, subject to the requirements of section 411, to institute an action for any infringement of that particular right committed while he or she is the owner of it. . . .

    (Emphasis added.)

    (*) (Fwiw, the 1909 Copyright Act treated copyright ownership very differently, and as a legacy of precedents established under that earlier act, a minority of courts today remain rather confused and think there's some difference between an exclusive licensee and a copyright owner.)

     

    Copyright ownership is important in the context of Craigslist's recent act. For one thing, the copyright act has a statute of frauds:

    17 USC § 204 - Execution of transfers of copyright ownership
    (a) 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.

    See the part where a transfer of copyright ownership needs to be signed?

     

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  13.  
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    ChrisB (profile), Aug 2nd, 2012 @ 6:27am

    Re:

    Um... Kijiji?

     

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  14.  
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    Anonymous Coward, Aug 2nd, 2012 @ 6:34am

    Well, this just goes show I should not post anything on craigslist ever.

    If I put up a help wanted I don't want to be limited to placing it on one site.

     

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  15.  
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    Anonymous Coward, Aug 2nd, 2012 @ 6:36am

    Re: Just Wondering

    ... if you can click away a licence...


    You can't just “click away” an exclusive copyright license.

    17 USC § 101 - Definitions
    A “transfer of copyright ownership” is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.

    (Emphasis added.)

     

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  16.  
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    Anonymous Coward, Aug 2nd, 2012 @ 6:44am

    Re: An exclusive licensee is an "owner" of a copyright

    The person that writes the ad still owns the copyright and is the legal owner, holding the title to the work. Craigslist is an exclusive licensee, which is also a "legal owner" for purposes of Section 501. There is no transfer--no assignment--of the copyright here. It's merely a license, not a transfer of title. It's not a total transfer of ownership.

     

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  17.  
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    Leesa, Aug 2nd, 2012 @ 6:45am

    Hand in hand

    They would claim ownership of user-generated content? The right of ownership would necessitate their greater involvement in policing the site, I believe, with moderator-approved listing process, customer service, etc. With rights comes responsibility. Apparently craigslist has forgotten that its not the big fish in the pond, picking off the little fish that feed off its scales; instead, it's a medium-size fish that's constantly republishing photos, descriptions, and deep-content links of big fish like Amazon, who's been really tolerant up til now. Hey there - to the obviously new Craigslist exec trying to make a big splash fixing what ain't broke - you're going to piss off the wrong person. This is a very bad way to poke the bear. See recent mistakes by NetFlix and (dope slap on back of head) SMAHTEN UP.

     

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  18.  
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    Anonymous Coward, Aug 2nd, 2012 @ 6:49am

    It's merely a license, not a transfer of title.

    17 USC § 101 - Definitions
    A “transfer of copyright ownership” is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.

    (Emphasis added.)

     

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  19.  
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    Anonymous Coward, Aug 2nd, 2012 @ 6:54am

    A new way to make money

    Find someone selling bootlegs on Craigslist. Contact owners of said content and convince them to let you sue Craigslist on their behalf as the "exclusive advertising partner" of said seller. Quick, someone call Evan Stone!

     

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  20.  
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    Anonymous Coward, Aug 2nd, 2012 @ 6:57am

    Re: An exclusive licensee is an "owner" of a copyright

    Forgot to add: You are right that there is a writing requirement for an exclusive license. Section 101 states:
    A “transfer of copyright ownership” is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.
    The writing can be a pro forma, one line statement. Effects Assocs., Inc. v. Cohen, 908 F.2d 555, 557 (9th Cir. 1990). I'm not sure if the click-through (or whatever Craigslist is using) fulfills the writing requirement. I'd have to think about that one.

    What's your opinion on that?

     

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  21.  
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    Pixelation, Aug 2nd, 2012 @ 6:58am

    I'd love to see them sue Google for showing a CL listing in a search result.

     

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  22.  
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    BentFranklin (profile), Aug 2nd, 2012 @ 7:09am

    Re: Re:

    And also responsible for prostitution now!

     

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  23.  
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    Leesa (profile), Aug 2nd, 2012 @ 7:11am

    Chicken or egg?

    What if user-generated content is posted to another site first, then cl? I'd love to hear that conversation, as cl gets aggressive with other site who had it first.

     

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  24.  
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    Jeremy2020 (profile), Aug 2nd, 2012 @ 7:21am

    Re:

    I think they were setup for that before..what improvements have been made to craigslist lately?

     

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  25.  
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    Anonymous Coward, Aug 2nd, 2012 @ 7:24am

    Re: Chicken or egg?

    What if user-generated content is posted to another site first, then cl?


    17 USC § 204 - Execution of transfers of copyright ownership

    (a) 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.

    (Emphasis added.)

    An exclusive license which is a 17 USC § 101 “transfer of copyright ownership” ... is not valid unless... signed.

     

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  26.  
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    Anonymous Coward, Aug 2nd, 2012 @ 7:35am

    "Craigslist so successful, turning the company into much more of a cranky legal bully. Lots of companies that start out innovative and open, do later change and flip sides on things like this, but Craigslist always seemed like the kind of company that would stay on the right side of the "evil line." It's too bad to see that it seems to be so aggressively diving over to the copyright bully side of the line."

    There is a real lesson to be learned here that perhaps you have never had to deal with in your life:

    What happens when a business becomes successful. They suddenly have something that is worth protecting, and they do so.

    Don't call CL out for being successful, and having a product that other people want to rip off and make money from.

     

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  27.  
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    Anonymous Coward, Aug 2nd, 2012 @ 7:57am

    Re:

    Oh, so telling me I can't post MY classified ads elsewhere is somehow not a dick move?

    Fuck you craigslist!

    Fuck you whale!

     

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  28.  
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    Anonymous Coward, Aug 2nd, 2012 @ 8:10am

    Re: Re: An exclusive licensee is an "owner" of a copyright

    What's your opinion on that?

    In comments here, it's courteous to provide a hypertext link to cases you cite.

    Effects Associates v Cohen (9th Cir.1990)

    &lt:a href="http://scholar.google.com/scholar_case?case=9695307318571874997">Effects Associates v Cohen (9th Cir.1990)
    The rule is really quite simple: If the copyright holder agrees to transfer ownership to another party, that party must get the copyright holder to sign a piece of paper saying so. It doesn't have to be the Magna Charta; a one-line pro forma statement will do.

     

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  29.  
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    Anonymous Coward, Aug 2nd, 2012 @ 8:11am

    Re: Re: An exclusive licensee is an "owner" of a copyright

    What's your opinion on that?

    In comments here, it's courteous to provide a hypertext link to cases you cite.

    Effects Associates v Cohen (9th Cir.1990)

    <a href="http://scholar.google.com/scholar_case?case=9695307318571874997">Effects Associates v Cohen (9th Cir.1990)
    The rule is really quite simple: If the copyright holder agrees to transfer ownership to another party, that party must get the copyright holder to sign a piece of paper saying so. It doesn't have to be the Magna Charta; a one-line pro forma statement will do.

     

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  30.  
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    Anonymous Coward, Aug 2nd, 2012 @ 8:21am

    Re:

    There is a real lesson to be learned here that perhaps you have never had to deal with in your life


    Yes, there is a lesson here, but since you don't seem to understand what it is, it's likely you've never had to deal with it either.

    The lesson is maintaining popularity requires not being a dick.

    They suddenly have something that is worth protecting


    Yes, and that something is their user base. However they are not "protecting" it, they are actively engaging in conduct to destroy it.

    That's what this is about.

     

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  31.  
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    Anonymous Coward, Aug 2nd, 2012 @ 8:26am

    Re: Re: Re: An exclusive licensee is an "owner" of a copyright

    In comments on Techdirt it's courteous to provide links to case citations? News to me. Seems like most people just make conclusory statements of the law with absolutely no support. It's hilarious to me that I provide an actual pin-cite for a legal claim, and your response is that I should have linked to the opinion. Give me a break.

     

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  32.  
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    Anonymous Coward, Aug 2nd, 2012 @ 8:33am

    Re:

    Yes, I know what it says. I'm the one that posted it. But it's not that simple. An exclusive licensee does not truly own the work that they license. If they were the actual owner, they'd be able to sell the work, to license it to others, or to abandon the copyright. They can't do any of those three things because they aren't the true, titular owner. Put another way (and borrowing from Roman law), an exclusive licensee has the fructus and the usus, but not the abusus.

    There is some unfortunate confusion built into the Copyright Act:
    Under Section 101's definition, “an exclusive licensee may be regarded as the copyright owner of the rights thus licensed.” See 2 Nimmer § 7.16[B][2], at 7-165 n. 105.4 (emphasis added). Being “regarded” as an owner and actually being an owner are, of course, two separate things. While it is perhaps unfortunate that the Act's drafters chose to call owners of copyrights and owners of exclusive rights by the same name, we think that Section 101's definition reflects the fact that exclusive licensees are treated as copyright owners for the purpose of protection and remedy pursuant to § 201(d)(2). In other words, Condé Nast would stand in Morris's shoes with respect to infringement of the publication rights it exclusively licensed-and, as pointed out in the above quote from Nimmer, only for that particular right. Morris, in contrast, would have standing as the owner of the copyright to bring an action for infringement of any of the rights comprised therein.

    Indeed, the construction of § 201(d)(2) itself mandates the conclusion that an exclusive licensee is not a copyright owner. The subsection states that “[t]he owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.” 17 U.S.C. § 201(d)(2). As analyzed by Nimmer: “The copyright owner” in this context must refer to the licensor, not the licensee, notwithstanding the definition in 17 U.S.C. § 101 whereby the “ ‘copyright owner,’ with respect to any one of the exclusive rights comprised in a copyright, refers to the owner of that particular right.” If “the copyright owner” in this context referred to the licensee, the sentence would be tautological. That is, it would mean: “The owner of any particular exclusive right is entitled, to the extent of that right, to all the protections and remedies accorded to [the owner of such particular exclusive right].” 3 Nimmer § 10.02[C][2], at 10-29 n. 52. Subsection 201(d)(2) thus draws a distinction between a copyright owner and an exclusive licensee that precludes the argument for “divisibility of copyright ownership” urged by Morris.

    Based on our understanding of the above provisions, we conclude that Section 101 cannot be read to mean that an owner of an exclusive right is also, thereby, an owner of the underlying copyright.
    Morris v. Bus. Concepts, Inc., 259 F.3d 65 (2d Cir. 2001) (emphasis added).

    While an exclusive licensee is certainly a legal owner of the underlying copyright such that they are entitled to the protections and remedies of the Act, they are not in fact the true copyright owner. A licensor owns that which is licenses, even exclusively, to another.

     

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  33.  
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    Anonymous Coward, Aug 2nd, 2012 @ 8:34am

    Re: Re: Re: An exclusive licensee is an "owner" of a copyright

    Do you have an opinion (with or with cites or links) on whether the writing requirement can be fulfilled by a click-through agreement? That's what I asked. If you don't, no worries. I can research it myself.

     

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  34.  
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    Anonymous Coward, Aug 2nd, 2012 @ 8:35am

    Re:

    "They suddenly have something that is worth protecting, and they do so."

    Psst. Craigslist has existed (and grown) for over a decade without this kind of protection.

     

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  35.  
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    Anonymous Coward, Aug 2nd, 2012 @ 8:37am

    Re: Re: Chicken or egg?

    But signatures can be done electronically, no? Have you actually researched the point? Or are you just going to keep repeating the same text without adding any actual analysis or case law?

     

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  36.  
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    Mr. Applegate, Aug 2nd, 2012 @ 8:49am

    Re:

    Your right. We shouldn't call them out. Just stop visiting or posting to their site.

    Wait, I never have anyway. :^/

    But at least they have now assured that I never will. :^)

    Mission Accomplished!

     

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  37.  
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    DH's Love Child (profile), Aug 2nd, 2012 @ 8:57am

    Re:

    But this move doesn't protect Craigslist's site or community. Craigslist doesn't create this content, the users do.

    What this does is make people look for other communities that aren't going to try to lock up the content.

    That would be like Techdirt claiming exclusive license on the comments.

     

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  38.  
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    Anonymous Coward, Aug 2nd, 2012 @ 10:13am

    Re: Re: Re: Chicken or egg?

    But signatures can be done electronically, no?


    See 15 USC § 7001.

    But compare the electronic signature cases involving a statute of frauds defense with Konigsberg v Rice (9th Cir. 1993):
    Although section 204 is often referred to as the "copyright statute of frauds," it actually differs materially from state statutes of frauds. While the latter may be satisfied by a writing not intended as a memorandum of contract, not communicated to the other party, and even made in pleadings or testimony years after the alleged agreement, see Restatement (Second) of Contracts § 133 cmts. b, d (1981), section 204 may not. State statutes of frauds serve a purely evidentiary function — to prevent enforcement through fraud or perjury of fictitious agreements. Thus, agreements subject to statutes of frauds may be perfectly valid, yet unenforceable without evidence of a writing.

    By contrast, a transfer of copyright is simply "not valid" without a writing. 17 U.S.C. § 204(a). Section 204's writing requirement not only protects authors from fraudulent claims, but also "enhances predictability and certainty of ownership — `Congress's paramount goal' when it revised the Act in 1976." Effects II; see also Jay Dratler, Jr., Intellectual Property Law: Commercial, Creative, and Industrial Propert, § 6.03[3] at 6-72 (1993) (copyright statute of frauds "performs not only the usual evidentiary and cautionary functions of all statutes of frauds, but also the additional purpose of describing the bounds of intangible rights that cannot be seen or felt"); cf. Schiller & Schmidt, Inc. v. Nordisco Corp. (7th Cir.1992) (section 101's requirement of a written statement for copyright ownership of works for hire "is not merely a statute of frauds"; its second purpose is "to make the ownership of property rights in intellectual property clear and definite, so that such property will be readily marketable.").[3]

    ---

    [3]The Second Circuit has held that the note or memorandum can retroactively validate an earlier oral transfer. Eden Toys, Inc. v. Florelee Undergarment Co.(2d Cir.1982) (memorandum of transfer made within year of oral agreement and during term of exclusive license validated agreement ab initio), cited in Valente-Kritzer Video v. Pinckney (9th Cir.1989) (dicta). Given that Congress has declared oral transfers "not valid" in the absence of a writing, we have doubts about whether a later writing can validate a purported transfer that substantially predates the writing. In any case, we read the Second Circuit's rule as applying only to writings executed during the life of the purported license — not, as here, many years later.


    (Pin cites omitted.)

    The upshot of this being that one circuit's opinion (e.g. 10th) holding that the sender's name on an email satisfies a state (Colo.) statute of frauds may not be a § 204 signature in another circuit (e.g. 9th).

     

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  39.  
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    John Fenderson (profile), Aug 2nd, 2012 @ 10:39am

    Re:

    Apple made that shift way, way back with the introduction of the original Macintosh, so their behavior now has been SOP for some 30 years or so. But yes, like Apple.

     

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  40.  
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    John Fenderson (profile), Aug 2nd, 2012 @ 10:42am

    Re: Re: An exclusive licensee is an "owner" of a copyright

    True, but it is the granting of an exclusive license, and so it limits what you can do with your own work. In practice for most purposes, this is the same as transferring ownership.

     

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  41.  
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    John Fenderson (profile), Aug 2nd, 2012 @ 10:46am

    Re: Re:

    This is my approach. I've used CL quite a lot, but will no more (unless they change this).

    Personally, I don't care if CL does this or not -- but I do take contracts seriously, and I take exclusive licenses ten times as seriously. I'm not about to grant an exclusive license to anything I do to any entity at all unless they are paying me to produce something for them.

    There's just too many ways this sort of thing can come back around years later and hurt me.

     

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  42.  
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    Anonymous Coward, Aug 2nd, 2012 @ 10:55am

    Re: Re: Re: Re: An exclusive licensee is an &quot;owner&quot; of a copyright

    ... on whether the writing requirement can be fulfilled by a click-through agreement?

    I have a preliminary question:

    Is the “signed” part of the § 204(a) signed writing requirement governed by state law? Or do the federal policies underlying copyright necessarily mandate one uniform standard for electronic signatures?

     

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  43.  
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    Anonymous Coward, Aug 2nd, 2012 @ 11:01am

    Re: Re: Re: Re: Chicken or egg?

    It's certainly an interesting angle to all of this if the exclusive license isn't valid because it fails the writing requirement of Section 204 (I prefer to call it a "writing requirement" since, as the case law you provided points out, it's not exactly a "statute of frauds.").

    I see that Section 7006(5) provides:
    (5) Electronic signature

    The term “electronic signature” means an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.
    15 U.S.C.A. § 7006 (West).

    I don't know how Craigslist presents the exclusive license language, but if a user merely agrees to it without "the intent to sign the record," then it would appear that it wouldn't be a signature and the writing requirement isn't fulfilled (since it must be signed).

    Great stuff! I'd have to research it more to say anything intelligent about it, but it does appear that maybe there is no exclusive license here.

     

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  44.  
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    Anonymous Coward, Aug 2nd, 2012 @ 11:04am

    Re: Re:

    Umm, no, they are saying you cannot post that VERSION of your classified ad in other places. It doesn't mean you cannot post a similar, modified version in other places, only that what you post to them is exclusive to them.

    How hard is that to understand?

     

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  45.  
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    Anonymous Coward, Aug 2nd, 2012 @ 11:06am

    Re: Re: Re: Re: Re: An exclusive licensee is an &quot;owner&quot; of a copyright

    I have a preliminary question:

    Is the “signed” part of the § 204(a) signed writing requirement governed by state law? Or do the federal policies underlying copyright necessarily mandate one uniform standard for electronic signatures?


    I was just about to ask you the same thing. :)

    My opinion, without researching it (and there may be no answer in the case law anyway for this exact point), is that state contract law governs to the extent it's not preempted by federal common law. If there is a body of federal case law on point, that controls, and if not, then look to state contract law. My two cents.

     

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  46.  
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    Anonymous Coward, Aug 2nd, 2012 @ 11:08am

    Re: Re:

    Nice try, but fail.

    Since they aren't being dicks, it's not an issue. The guys being dicks are the ones trying to springboard a business OFF of CL by using their site, data, and information to leech. Nobody wants to post their ads on these leech sites, only to CL.

    Why can't CL just say "it's our site, our content, and you cannot use it that way"? Remember, CL shuts down tomorrow, and all of those sites go broke and fold. They are entirely depending on the data that CL has on their site.

    Their have a user base to protect, that is true. But just like Twitter, they face a simple challenge. If people are using off line CL ad writers and submitters, and then using third party websites to look at the ads, that moves CL from destination website to just a storage facility. That would seem to defeat their entire business model.

    CL clearly has no interest in getting worked around, and they have no interest is having their user experience taken over by third parties.

    That's what this is about, not your touchy feelie crap.

     

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  47.  
    identicon
    Anonymous Coward, Aug 2nd, 2012 @ 11:11am

    Re: Re: Re: An exclusive licensee is an "owner" of a copyright

    Since they are not transferring ownership, and only granting exclusive license, there is no need for the document.

     

    reply to this | link to this | view in thread ]

  48.  
    identicon
    Anonymous Coward, Aug 2nd, 2012 @ 11:18am

    Re: Re: Re: Re: An exclusive licensee is an "owner" of a copyright

    I don't think that's right. Section 204(a) says: "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."

    So if there is a "transfer of copyright ownership," then it needs to be in writing.

    Section 101 defines "transfer of copyright ownership" as: "A “transfer of copyright ownership” is an assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license."

    So an exclusive license, though not a nonexclusive license, needs to be in writing.

    I agree that they aren't *really* transferring ownership of the underlying copyright (for the reasons I've stated elsewhere in these comments), but nonetheless it's clear that an exclusive license must be in writing.

    Now whether that writing requirement can be fulfilled by a click-through license is the question. I'd need some more facts before I could make that call (like what exactly happens on CL's website when this alleged exclusive license is perfected).

     

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  49.  
    identicon
    Anonymous Coward, Aug 2nd, 2012 @ 12:10pm

    Re: Re: Re:

    Thing is, telling me I can't post a version of an ad I WROTE MYSELF is a missive dick move.

    Again, fuck you craigslist and whale!

     

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  50.  
    identicon
    Anonymous Coward, Aug 2nd, 2012 @ 12:11pm

    Re: Re: Re: Re:

    MASSIVE dick move, even.

     

    reply to this | link to this | view in thread ]

  51.  
    identicon
    Anonymous Coward, Aug 2nd, 2012 @ 12:38pm

    Re: Re: Re: Re: Re: Re: An exclusive licensee is an &amp;quot;owner&amp;quot; of a copyright

    ... that state contract law governs to the extent it's not preempted by federal common law.


    I haven't researched this point in half a decade. But, iirc, in some circuits, the sufficiency of a § 204(a) writing is exclusively subject to federal law.

    In other circuits, the judges perhaps just assume that the formation of a contract is governed by state law.

    The 11th circuit's recent, unpublished decision in Hermosilla v Coca-Cola has been criticized for not discussing the § 204(a) issue:

    Unfortunately, while the 11th Circuit found that the e-mail exchange constituted a binding contract under Florida law, the court did not address whether the e-mail exchange constituted a “writing” for purposes of Section 204 of the Copyright Act.


    However, looking at the Florida District Court's decision in that case, we do find a nod to § 204(a). Unfortunately the district court cited a patent case:
    Courts have found emails to constitute signed writings. See, e.g. Lamle v. Mattel. Inc., 394 F.3d 1355 (Fed. Cir. 2005)


    (Not hyperlinking Lamle v. Mattel, 'cause if I stick too many links in one post then the comment gets held in the moderation queue.)

     

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  52.  
    identicon
    Anonymous Coward, Aug 2nd, 2012 @ 12:41pm

    Re: Re: Re: Re: Re: Re: Re: An exclusive licensee is an &amp;quot;owner&amp;quot; of a copyright

    More great stuff, thanks. I'm researching custody and visitation issues today for my job-job, but I look forward to researching this stuff (copyright is fun!) tonight.

     

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  53.  
    icon
    John Fenderson (profile), Aug 2nd, 2012 @ 1:54pm

    Re: Re: Re:

    How hard is that to understand?


    I expect that pretty near everyone here understands that, but that's just working around Cl's demands. It doesn't make CL's demands acceptable.

     

    reply to this | link to this | view in thread ]

  54.  
    icon
    John Fenderson (profile), Aug 2nd, 2012 @ 1:57pm

    Re: Re: Re:

    Why can't CL just say "it's our site, our content, and you cannot use it that way"?


    Because it's not, in fact, their content, maybe?

     

    reply to this | link to this | view in thread ]

  55.  
    identicon
    Anonymous Coward, Aug 2nd, 2012 @ 6:31pm

    Re:

    They do not claim that they own the content. There is no transfer of the ownership of copyright, which is essential to keep their section 230 safe harbour. However, since they are not, and cannot be, the copyright owner, they therefore do not have standing to sue for copyright infringement.

    Craigslist is trying to figure out some way to have their cake (safe harbour) and eat it (sue for infringement). The judge is not going to buy it.

     

    reply to this | link to this | view in thread ]

  56.  
    icon
    G Thompson (profile), Aug 2nd, 2012 @ 9:48pm

    Re: Re:

    I think they are trying to state that with an exclusive license, like that given to a record publishing company by performers who don't know any better, they have full control over any and all uses of the content.

    If that is the case then by proxy they do have ownership to do what they will, and control what happens with said content. This is a double edged sword since they are then fully liable (and not vicariously) for any and all uses of that content which instantly makes moot any safe harbours under s230. Oh and they could probably be criminally liable too since their duty of care rises dramatically since anyone who has complete control of an item has a reasonable expectation of knowing what is within that content and how it could be interpreted

     

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  57.  
    icon
    G Thompson (profile), Aug 2nd, 2012 @ 10:39pm

    Re: Re: Re: Re: An exclusive licensee is an "owner" of a copyright

    Seems like most people just make conclusory statements of the law with absolutely no support

    [Citation required]

    Sorry couldn't resist that ;)

    And like wills, deeds of title, etc signed means physical signature (in most jurisdictions) or at the least a reliable, unique, authenticated, and most importantly, court approved electronic signature. Not a click through at all

     

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  58.  
    identicon
    Anonymous Coward, Aug 2nd, 2012 @ 11:48pm

    Re: Re: Re: Re: Re: An exclusive licensee is an &quot;owner&quot; of a copyright

    ... signed means physical signature...


    Would it be possible to record a click-thru in the Copyright Office?

    17 USC § 205 - Recordation of transfers and other documents
    (a) Conditions for Recordation.— Any transfer of copyright ownership or other document pertaining to a copyright may be recorded in the Copyright Office if the document filed for recordation bears the actual signature of the person who executed it, or if it is accompanied by a sworn or official certification that it is a true copy of the original, signed document. A sworn or official certification may be submitted to the Copyright Office electronically, pursuant to regulations established by the Register of Copyrights.

     

    reply to this | link to this | view in thread ]

  59.  
    icon
    G Thompson (profile), Aug 3rd, 2012 @ 5:02am

    Re: Re: Re: Re: Re: Re: An exclusive licensee is an &quot;owner&quot; of a copyright

    The problem with click thru systems is authenticity. Unless there is a proven, reliable, and court approved method of verifying that the entity/person who clicked is actually the person/entity that is authorised to hand over that authority then it is subject to fraud and other probity problems.

    This is why Signatures on deeds, letters of writ, land titles, wills etc all have to be witnessed (notarised) that they were the person signing. There are electronic equivalents (though not everywhere accepts them) but Craigslist are definitely not suing them. They just rely on "click this button and we mark a database that you - whoever the hell you are - agrees to whatever weird thing we want..

    and before anyone sya it IP address's do not identifiers make.

     

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  60.  
    icon
    Gerald Robinson (profile), Aug 3rd, 2012 @ 7:13am

    Crags list copyright

    There is one problem with this—copyrights can only be assigned in writing! I doubt that any court would consider this writing. (Also the copyright must either be registered or the assignment notarized—many states now allow Enotarization; but instead of free or $1-$5 the charge is typically $25 to $30 plus mileage. BTW does cragslist have provisions for accepting Enotarizations?) Also what if I don't own the copyright? If I make something from plans in say "Fine Wood Working", they own the copyright and any copyright on my photo of the object is limited at best.

     

    reply to this | link to this | view in thread ]


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