The internet has presented previously undreamt of challenges to copyright law and its application, resulting in all sorts of dramas, dilemmas and high-profile legal battles (eg: the well-publicised Napster case springs immediately to mind, and locally, the iiNet test case in which the ISP was effectively – and may I say, ludicrously – being held to account for pirated content downloaded by clients).
This current case that I am about to outline is very small-time by comparison, but of relevance to folk who make available their intellectual property on web forums.
While you are a member of a forum, posting your original material – art, photography, music, whatever – is your choice, and in most cases you are free to leave it up on public display or, should you have a change of mind, remove it. But what happens if you have a falling out with the site webmaster/moderator, or for some other reason choose to leave the forum? Does the webmaster have the legal right to continue to display your intellectual property even if you request that it be removed?
According to my research, the short answer is no – at least in Australia (and I imagine this applies to most countries). The Australian Copyright Council site contains downloadable documentation specific to website-related copyright issues (see here) indicating that if you leave a forum, the copyright status of your intellectual property is unchanged and you therefore retain the right to decide where it is displayed or made available to the public. A webmaster is legally obligated to remove your material from his/her site if you so request, regardless of your membership status.
Why would a webmaster hesitate to respect copyright law, anyway, you might ask. And the law aside, shouldn’t common decency kick in? Isn’t it an ethical no-brainer that a copyright holder’s request that their intellectual property be removed from a site be respected and enacted upon without hesitation? Well, you’d think so, but a recent experience of mine has hammered home the lesson that it ain’t necessarily so.
So, what do you do if you make such a request and the webmaster refuses to remove your material from their site?
I am not a lawyer, so bear that in mind. However, based on quite extensive recent research on the web, these are the steps I followed:
- Point out to the Webmaster that he/she is obligated under copyright law to comply with your request as a copyright holder to remove your intellectual property from their site. Try to resolve the situation through personal communication and reason. If this is unsuccessful…
- Forward to the webmaster online links to official documentation on copyright law as it applies to UGC (user generated content) on webs and web forums. I am an Australian resident, and the site on which my intellectual property was posted, Sourdough Companion, is also Australian-based. Thus, I referred the webmaster to the Australian Copyright Council site. I also specified the ACC documents that I had downloaded that appeared most relevant to my request. You can’t make the other party read the material, but directing them to an authority such as the ACC gives your argument credibility. The law is the law, and no powermongering webmaster is above that. BUT, if still no joy…
- Send a cease and desist letter to the site owner, requesting them to remove your work within 14 days.
- Send a copy of the letter to the ISP that hosts the site, and ask if they can act to remove the material that infringes your copyright.
- As a last resort, consult a solicitor who specialises in copyright law.
Frankly, going on past experience, I would do everything possible to keep lawyers out of it unless significant royalties are at stake – that is, worth more than the whack you’re likely to be slugged if the case goes to court. Depending on the royalties involved, it might be worth hiring a wig to make some litigious noises via a letter, since the mere sight of a legal firm letterhead is often enough to scare some compliance into law-infringing recipients.
OK, that’s the theory, but how does it translate in practice? Well, here I need to move from the general to the personal.
First, some background in order to contextualise the tangle I ended up in.
For 2 years, I was an active member of the Sourdough Companion forum, which caters for bakers of artisan sourdough bread and other naturally leavened baked goodies. During that time I enjoyed a great relationship with most of the other forum members, some of whom have become email buddies off-forum. However, there are always arseholes on web forums – it’s a numbers game! – and even in the mostly benign world of breadheads there can be spats, at times quite vicious. There were some doozies between pro bakers prior to my joining the forum, with much brandishing of batards and flour flying all over the place, and I was involved in three or four during my 2 years. Nothing serious. Just differences in opinion that became overheated and blew themselves out with the exception of one occasion in which the moderator stepped in, told us to calm down, and that was that. The usual thing.
Then, earlier this year, I encountered something far nastier from an egotistical newbie member who took personal offence to having his half-baked (sorry) assertions challenged, and took revenge by publicly defaming me in a post spiked with malicious and scurrilous lies.
I sought to have the matter resolved off the boards, approaching the Moderators with demonstrable proof that this bloke had lied with the obvious intent to lower my standing in the forum community, and requesting that they censure him accordingly. I also asked that the most offensive defamatory lie be exposed as such, either via a retraction and public apology from the offender, or a notice on the forums posted by the moderators. It is standard practice in all public communication media to publicly acknowledge proven defamatory misinformation as such – including, I figured, on web forums.
The moderators’ attitude was bitterly disappointing. They were loathe to upset a new member, and seemed to want all the unpleasantness to just go away – poof! – without their intervening or taking any sort of a stand. I pleaded my case until it became obvious that I was wasting my time, then determined not to participate in the forum from that point. My reasoning was that if the site owners were not prepared to support me as a long-term member who had been defamed by a lying newbie, I was not prepared to support their site.
I maintained my silence for a couple of months while continuing to peruse the forums for the odd interesting post. However, when this libellous newbie popped up with a needlessly rude and hostile post in response to one of the experienced pro baker members I most respect, I took the opportunity to point out that he had ‘form’, and publicly exposed him for the defamatory lies he had posted about me. I also publicly took the Moderators to task for their wishy-washy response to my defamation complaint. At no time did I resort to offensive language, and I was mindful not to allow my outrage at what had happened to distort or in any way compromise the facts.
The moderators evidently took great personal offence at my criticising them publicly. I was subsequently barred from the site without notice or warning. I learned of my ex-communication when I tried to log in and received a “username blocked” notice. I emailed the Moderator/Webmaster for an explanation. He advised that my membership had been cancelled on the grounds of “repeated offensive behaviour.”
This was an unsupportable charge on his part, never before expressed, and I rejected it out of hand. But what do you do when you’re dealing with a moderator who has taken an immovable position? They have all the power while you have none! Truth, justice and the
American Australian way don’t even come into the equation when the guy with the power takes a set against you.
I tried to engage with him nevertheless, but it seemed to me that he was impervious to all reasoned argument and not open to considering the facts. Since my account was blocked and I was no longer able to access my posts, I requested that he delete three of my posts that comprised original recipes accompanied by directions and photos, and were therefore my intellectual property and subject to copyright law. I explained that I was intending to include the content of these posts in a commercial project I am working on, which may be compromised if the posts were publicly available elsewhere.
I was bemused by his response. In the course of subsequent emails, it seemed that he was intent on keeping these posts on his site, despite my pointing out repeatedly that the content comprised my intellectual property and that in refusing my request to remove the posts he was infringing copyright. I proposed that he delete the three posts I had specified and leave an explanatory notice from the moderator in their place. He ignored my suggestion and offered to post a copyright protection notice on the posts, or to delete ALL posts of mine from his site using software (which I assume searches for and auto-deletes a specifed user’s posts). He expressed concern that this latter action would inconvenience his members, since some of their posts would no longer make sense in the absence of my posts.
I suspect – and I emphasise suspect – that his real (albeit unexpressed) agenda was to keep the posts onsite because of their popularity. One, a banana bread recipe, had had over 5000 hits and sported a long trail of positive comments.
I persisted with reasoned argument. I stated that while my proposed solution seemed easier and simpler, and would take no more than a few minutes, I didn’t care if he preferred to airbrush all trace of my participation from his site as long as my specified intellectual property was removed.
When 7 days passed without any action on his part, I emailed again and asked what was going on. He repeated that he would need to consider the effect of deleting all my posts on individuals who had built on those posts, and that this could take time. He added that it might be necessary to seek mediation.
I was well pissed off. It appeared to me that he was stalling and playing a spiteful power game. So much for trying to resolve the situation through communication and reason. It was time to move to Step 2 (past time, in retrospect).
I referred him to the ACC site, and specifically to the document entitled ‘Websites: User-generated Content & Web 2.0’, most notably pages 1-3 (downloadable from here). I stated that I believed this document and others left no doubt as to his legal responsibilities as a webmaster regarding copyright infringement on his site, and urged him to seek clarification from a copyright lawyer immediately should he be unclear on any aspect. I repeated – yet again – that I did not authorise the use of my specified intellectual material on his site, and that he was therefore wilfully infringing copyright as a webmaster if he continued to display it. I requested again in the strongest possible terms that he remove my intellectual property from his website, and that he do so forthwith.
The result? A win for reason and fair play, at last! The webmaster acceded to my request that he remove the three posts I had specified. He ended up following my suggestion that he simply delete the posts, but did not go so far as to leave an explanatory message from the Moderator. Whatever. My intellectual property had finally been removed as requested, so mission accomplished (with far too much effort!). Or that’s what I thought. Alas, it transpired that the sorry saga was not quite at an end.
A few hours after the removal of my specified posts, I checked the Sourdough Companion site and was flabbergasted at what I saw on the home page:
The URL provided by ‘KitchenGeisha’ brought up my Sourdough Companion banana bread post in full. So, despite the webmaster removing the post, it was now once again available for viewing by the entire Sourdough Companion readership. This smelt like a workaround.
I checked the profiles of ‘knigja’ and ‘KitchenGeisha’ – they had signed up the same day the webmaster had removed my posts, a mere 4 hours apart. I leave you to draw your own conclusions…
I alerted Google that the cached page contained copyrighted material and put in a request for removal (see below).
Furious, I then emailed the webmaster, who subsequently denied that he had had anything to do with the ‘knigja’ or ‘KitchenGeisha’ posts. I demanded that he immediately delete the URL in the latter, since in effect it functioned as a workaround to his removing the page containing my intellectual property. He refused.
I also notified him that I had complained to Google about the URL and sought to have my copyright-protected content removed (see here). He seemed to take great offence at this and subsequently went into full attack mode, accusing me of harassment and bullying amounting to ‘criminal behaviour.’ Certainly, I had been critical and had resorted to sarcasm in some of my emails, but harrassment, bullying and ‘criminal behaviour’? Hardly! Regardless, he demanded that I cease contacting him and indicated that he would not be responding to any further emails.
So, where to go from here?
I stumbled my way through to a happy ending without having to resort to Steps 3-5. Thanks be to Google! Have a read through ‘Remove a page or site from Google’s search results’, which sets out the steps to take to request removal of cached pages containing material infringing copyright. Google took two days to act on my request to remove the old cached Sourdough Companion page. Copy and paste the URL provided by ‘KitchenGeisha’ into your browser now, and it brings up the current page, with the recipe and directions removed.
The sort of situation I have outlined here really should not happen, but communication can break down, and reason and fair play does not always prevail, especially when emotions are running high and egos are bruised. It’s not easy to stand up for yourself when the other guy owns the playground, but if he has something belonging to you and won’t give it back, whatcha gonna do – fold? Nah, you’ve got to fight for your rights sometimes. Hopefully, this post will help make your fight a little easier if you come up against something similar.
Find this post useful? Buy me a coffee (if you’d like!).