A Straight Dope Classic from Cecil's Storehouse of Human Knowledge

Who controls the content on an Internet message board?

October 9, 2009

Dear Cecil:

Years ago you were asked whether it was legal to publish a letter someone had sent you. You said the author's permission was needed. Now that it's 2009, I got to wondering if one could take a post on, say, the Straight Dope Message Board and publish it without the author's permission, or for that matter, the SDMB's permission. I presume the answer is no. Second question: If I have a blog and someone posts a comment on it, can I publish it without their permission? Finally, say I have my own message board and clearly tell people when they join that anything they write on the board becomes my property. I then publish a book called "The Best of Level3Navigator's Message Board!" without getting permission from the posters. Is this legal?

Cecil replies:

I get the feeling you’re headed somewhere with this. Nonetheless, you raise issues worth examining in the age of the Internet. Let’s start at the top.

As you rightly presume, the answer to your first question is no. It’s well established legally that the creator of content owns the copyright. Prior to the 1976 Copyright Act, unpublished letters, which were the topic of the original column, couldn’t be published without the writer’s permission except in limited circumstances, and then only by the recipient. Anybody else was out of luck.

After 1976, letters and other copyrightable works became subject to the Copyright Act’s “fair use” provision, which allows publication of short excerpts — usually. In the 1980s, reclusive author J.D. Salinger successfully sued to prevent the quoting and paraphrasing of his unpublished letters in a biography. The court felt the author’s right to determine first publication of his work tilted the fair use balance in Salinger’s favor. You wouldn’t have that problem quoting message board posts, which have already been published. But this is poorly charted territory; somebody might still sue. Vindication could cost you a lot.

Your second question is trickier. If it’s your blog, can’t you publish whatever appears there? No. The law says, “Copyright . . . vests initially in the author or authors of the work.” Your blog’s comments section is merely the canvas on which the creative individual displays his genius. It’s as if you own a building and a graffiti artist has sprayed a brilliant original sonnet on your wall. You can repaint the wall, or tear down the building, but you can’t include the sonnet in a poetry collection.

That brings us to your third question: how does a user agreement change things?

Probably a lot, although few such agreements have been tested in court. The Straight Dope Message Board has one, which we’ll get back to. First let’s look at Facebook’s agreement, which created an uproar earlier this year. Facebook’s terms of use once included the following: “By posting User Content to any part of the Site, you automatically grant . . . to the Company an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.”

Goodness, one thinks. Am I granting first dibs on my kidneys, too? But then it got worse. Originally Facebook agreed that once you removed your content from its site, its license to your stuff expired. Last winter, however, Facebook deleted that provision, implying that once you posted something, Facebook controlled it forevermore.

Users howled. Protesting innocence, the company revised the language, which now reads in part: “[Y]ou grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any . . . content that you post on or in connection with Facebook. . . . This . . . license ends when you delete your . . . content.” That restores the prior status quo, but the gist remains: anything you leave posted here is ours to do with as we will.

The Straight Dope Message Board agreement has a similar clause: “You grant [our company] and its successors and assigns a nonexclusive irrevocable right to reuse your posting in any manner it or they see fit without notice or compensation to you.” Big difference: inclusion of “irrevocable.” That’s there because a message board thread is people talking to each other. If users later can withdraw their part of the conversation, what’s left becomes incomprehensible. So the irrevocability of the SDMB license arguably serves the greater good.

Still, the SDMB’s user agreement, like Facebook’s, grants a license that on its face is pretty broad. We’re the soul of discretion, and no doubt so is Facebook. However, suppose our evil clones, the FUMB and Scumbook, took their collective content to Bangkok to . . . well, one shudders to think. Would the courts enforce the user agreements then? We’ll have to wait and find out.

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References

Darrow, Johnathan & Gerald Ferrara. "Who Owns A Decedent's E-Mails: Inheritable Probate Assets Or Property Of The Network?" 10 N.Y.U. J. Legis. & Pub. Pol'y 281 (2007): http://www.law.nyu.edu/ecm_dlv2/groups/public/@nyu_law_website__journals__journal_of_legislation_and_public_policy/documents/documents/ecm_pro_060742.pdf

Folsom v. Marsh, 9 F. Cas. 342 (Cir. Ct. D. Mass. 1841): http://www.faculty.piercelaw.edu/redfield/library/Pdf/case-folsom.marsh.pdf

Gervais, Daniel. "The Tangled Web of UGC: Making Copyright Sense of User-Generated Content." 11 Vand. J. Ent. & Tech. L. 841 (2009): http://law.vanderbilt.edu/publications/journal-entertainment-technology-law/archive/download.aspx?id=4173

Hetcher, Steven. "Symposium Review: User-Generated Content And The Future Of Copyright: Part Two - Agreements Between Users And Mega-Sites." 24 Santa Clara Computer & High Tech. L.J. 829 (2008): http://www.chtlj.org/sites/default/files/media/articles/v024/v024.i4.Hetcher.pdf

McCarthy, Caroline. "Facebook's about-face: Change we can believe in?" news.cnet.com 18 February 2009. 21 Aug. 2009 http://news.cnet.com/8301-13577_3-10166663-36.html?tag=mncol;txt

Salinger v. Random House, 811 F.2d 90 (2d Cir. 1987): http://www.law.cornell.edu/copyright/cases/811_F2d_90.htm

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