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mreardon
Jan 2, 2003, 10:52 PM
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"while what mreardon says is generally accurate"
Not to be a pain, but where was I was incorrect? I didn't know I was supposed to explain everything I know about copyrights and trademarks in this discussion. It's a climbing forum, not an intellectual property class.
"First, if you did not control the dissemination of the work, it is possible for a court to find that you have dedicated your work to the public, thereby placing same in the public domain and becoming free for all to copy."
Copying does not allow taking credit for the work. You learn in grade school that you cannot copy another's work without giving credit. Public domain does not mean people can infringe. He's not talking economic gain in the original post, but credit to his name and the stealing of that credit. You can't take Shakespeare's words and claim them as your own for copyright purposes.
"Second, before you can file a copyright infringement action, you need to have your copyrights registered, and you have a three year statute of limitations."
Wrong. You can sue anytime for copyright infringement. A work you created 20 years ago that is stolen from you today can be grounds for a suit even if you did not register it. You do not have to register the work to sue. Once you have created it, you own the copyright on it. Registration merely puts the world on notice as to when you created it, thereby making it easier to prove when you created it (you are automatically assumed to have created the property 12 months prior to the registration date). Registration also makes it easier to recover legal fees and the disgorgement of profit (see the state statute that will govern this procedure). However, even registration does not prove that you are the creator/owner of the property because the work may have been registered prior under a different name, or not even registered. And depending on the year the work was originally created, the statute or code during that time will be weighed. It all comes down to how the person who infringed came upon the work. If the owner of the copyright can prove the chain that leads from derivation to original underlying rights, then the case is resolved. Period. The statute of limitations is a completely different legal issue and of no relevance here.
"Third, it should only cost you about $250,000+ to hire a reputible attorney to prosecute your copyright infringement action through trial, and you will likely be asked to provide a $20,000 retainer."
Actually it will cost you nothing to send a cease and desist letter which will likely be the only action needed. Anything further will be on a cost by cost basis depending on what the goal is and how to achieve that goal. This is a topo. We're not talking about defending a derivation of "Casper" or "Richie Rich" (both of which I represented as head of business affairs for Harvey Entertainment). And I don't know what kind of law you practice, but if you are going to be spending $250k of your client's money, everyone I know will ask for at least 50% up front depending on the client. Additionally, it will cost you more than that for a trial. Minimum costs tend to be closer to $750k for a smaller firm, larger ones obviously being double that.
"Third, attorney's fees and trebled damages are discretionary with the court, should you prevail on your suit and prevail in showing willful infringement."
The court will allow a check with the state statute and case law both of which will likely allow for full recovery of legal fees with a cap on damages. In my history, every judge has allowed full damages when it went to full trial. My partner's case went so far as the Supreme Court and became the highest judgement for an intellectual property case, prior to MP3.com getting slammed for several hundred million.
"Fourth, ISP's generally have immunity from suits regarding infringement by someone utilizing their services."
Key word being "generally" which is likely to change now that the studios are going after the peer2peer systems and the ISPs that host those that distribute the p2p programs that are in turn distributing copyrighted materials illegally. Also, select individuals in the recent past have been held accountable through their ISPs which is building case law that the studios and others will bring to their side in holding the ISPs accountable for copyright infringement. This is what the RIAA and others in the music industry are currently doing to protect themselves (having run a p2p system in the past that partnered with Earthlink and took on Napster and MP3.com, I may have a little bit of understanding on this matter).
Okay, back to climbing....
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easysteve
Jan 2, 2003, 10:54 PM
Post #27 of 44
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I'm really sorry... What's a topo? Please don't hurt me.
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mreardon
Jan 2, 2003, 10:57 PM
Post #28 of 44
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Laughing loudly at that one!! A topo is short for a topography (spelling?) map. Roughster spent quite a bit of time creating maps of the local southern california areas. When you open a guidebook and see a drawn map of a crag with lines on it showing the routes - that's a topo.
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thomasribiere
Jan 2, 2003, 11:04 PM
Post #29 of 44
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I truly understand your pain. i don't really know if your work can be protected in anyway while on the web, but the person who used them without naming the initial provider and author is a thief.
Anyway, was it obvious that the topos were from you, or is it possible that they could have appeared to be from someone else (unknown) even if hosted on your webpages?
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rideandclimbkid
Jan 2, 2003, 11:13 PM
Post #30 of 44
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What the hell? The guy just wants some recognition for his work! chill the %@#$ out! HE put in the time and HE did all of the work, so why cant HE get his name put on it? I think that it is only fair that Roughster get recognition for his work. If you built a bridge over a crappy section of trail, to make it more CONVIENANT, wouldnt you want people to know you built that bridge? Hell, no one really stops to look, nor do they care whos name is on it, but if i were the person who built it, id be pretty damn proud. Give Roughster a break. Let him take pride in what work he did, which is so rightfully his.
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wandt
Jan 2, 2003, 11:28 PM
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How long until someone new pilfers the topo's from the "intellectual thief's" site, and calls them their own?
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mungeclimber
Jan 2, 2003, 11:42 PM
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DMCA- woo woo
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freehueco
Jan 2, 2003, 11:54 PM
Post #33 of 44
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I had a similar problem with a guidebook author stealing pictures from website and putting them in his guidebook. I told him that he was not authorized, and he told me that "All information on the internet is public domain unless it is copyrighted to the author"( which is not tru, and does not apply to photos since they are implicitley copyrighted no matter where there are posted). Anyway, he has been told that if he does it in the next edition of the guidebook without asking, he will be sued. I have plenty of lawyer friends who would take the case, so I hope he doesn't test that one.
Mike
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mhr2000
Jan 3, 2003, 12:10 AM
Post #34 of 44
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My question is....
Is this guy making money off your stuff? If not who cares what he does with it. I cut and paste copyrighted information into my website all the time because I'm not making money off it. If someone wants to jump all over me for copying their stuff then so be it I'll remove it, but why should they give a crap if I'm not profiting from it.
Isn't that what copyrights are about? Preventing others from profiting from your ideas? Well, I guess that was the idea behind it when it was created. Like everything else though it gets stretched to the limit.
If anything you should be proud that you made stuff worthy of being copied. By placing stuff on the internet, it's common acceptance that it can be and will be copied (or stolen as some like to put it).
The only thing I hate is when people link to photos directly off my website and create unwanted traffic. Take what they want that's why my site is there, but copy the stuff to their own site.
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easysteve
Jan 3, 2003, 12:28 AM
Post #35 of 44
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Man, I am such a dumb&%#, can you believe I was in the military? LOL... Man, %&$% me.
Steve
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hallm
Jan 3, 2003, 12:31 AM
Post #36 of 44
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mreardon and all who care,
(I think we should probably limit this discussion to federal copyright law - of course there are a host of unfair competition and other state law remedies potentially available, but federal law is typically the main vehicle for addressing copyright infringement)
I guess I can waste a half an hour of billables, so here we go:
1. Attribution - a copyright protects copying, not attribution of a work. While 17 U.S.C. section 106A (VARA) does provide for attribution, that only pertains to works of visual art, such as paintings. 17 U.S.C. section 101 states: "A work of visual art does not include - (A)(i) any poster, map, globe, chart, technical drawing, diagram, model . . ." A topo is, as you stated, a topographical map, so I think it is likely not covered by VARA.
2. Registration - While a copyright arsies upon the fixing of a work in a tangible means of expression, you cannot sue under the Copyright Act unless your copyright is registered. "Except for an action brought for a violation of the rights of the author under section 106(A)(a) [VARA], and subject to the provisions of (b) [transmission work, i.e., television or radio], no action for infringement of the copyright in any United States work shall be instituted until registration of the copyright claim has been made in accordance with this title." 17 U.S.C. section 411(a). This is a jurisdictional requirement only, not a limitation on damages. You can still collect damages within the statutory period, even if the work wasn't registered at the time of infringement, but you must register before you sue.
3. Cost and C & D letters -
While it costs little to send a cease and desist letter (or a nastygram as I like to call them), depending on who it is directed to, it can get you into a lot of hot water. First, it must be worded carefully, or else you risk getting DJ'd (declaratory judgment action for non-infringement). If you disseminate the C & D letter beyond the purported infringer, you run the risk of a libel suit. All this cautions to seek advice prior to sending any letter threatening legal action.
I work at a "larger firm," I am a fourth year IP litigation associate spending most of my time on patent and copyright litigation. If you really care to know the details of my practice, check the Cal Bar website or Martindale - Marcus Ted Hall. I have worked for large and small clients and know well the costs of litigation. My $250K estimate was for a small copyright case against a small individual without the need for much discovery, expert consulting, motion practice or partner time. You want a real estimate for a real case, off-the-cuff, we tell our clients $3M through trial. I could take a case like the present situation with a 10% retainer.
4. Trebled Damages and Attorney's Fees
Sounds like you have more and better experience in this than I, but getting a finding of exceptionality from a judge, and then attorney's fees and trebling, is the home run that requires very good facts to even hope for that result. In my opinion, the scenario here, where there was no attribution in the original work, and a non-sophisticated, small accused infringer is not a good bet to receive these remedies.
5. ISP immunity
your comments sound right.
OK, back to claim charts and dreaming about climbing.
[Edited to include statute citation.]
[ This Message was edited by: hallm on 2003-01-02 17:10 ]
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mreardon
Jan 3, 2003, 1:01 AM
Post #37 of 44
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Cool, copyright class has begun! I'd still be willing to argue the registration part, but by then everyone would be asleep. Another day maybe when it's raining outside....
p.s. Your firm only wants a 10% retainer? I'll keep that in mind if anyone I know needs outside counsel. We use Sidley Austin and Katten Muchin, but they can be too costly for others.
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number7
Jan 3, 2003, 1:05 AM
Post #38 of 44
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Wow! I was just tempted to rip someone a new A$$, and I get this message telling me to play nice with others here on the site. Well, I guess I gotta conform, eh?
Anyway, hallm is the $#!&. Thanks for the schooling Because I am an artist, I was wondering if mailing a copy of you work to yourself (to prove it was yours on so and so of a date) would make for a really easy lawsuit?
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falke
Jan 3, 2003, 1:49 AM
Post #39 of 44
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I agree with you completely.
Its good that this is not your livelyhood. The same thing applies to coders and designers of internet "anythings". Our work stands alone in a vast jungle of untrustworthy and lame thiefs.
Many times do I see designs or ideas that others or myself have created and worked hard to present, being blantantly ripped off by these uncreative losers.
If you ask me... spreading this word is the way to go. The more people talk about these issues the more they will be addressed.
And in the future...I would do everything possible to protect your work on a digitally encoded level. Many applications allow for hard to remove (at least for the average user) digital watermarking of graphic files. That in the very least will offer you some protection, not from people stealing your work, but at least if the issues should ever end up in legal arguments (you would be able to prove that the files originated with you).
For now... send out an offical "cease and desist" letter drafted and signed by your (any) lawyer.
I remember the days we could leave our tents and packs unprotected, go hiking all day, and return to find them where we'd left them... I guess those days are coming to an end.
All the best
-falke
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yosemite
Jan 3, 2003, 2:22 AM
Post #40 of 44
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Bro,
Get over it.
Go climbing. Life's too short. Sorry the other guy screwed you. We all love you. Move on.
Gene
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theperfectdrugsk
Jan 3, 2003, 5:43 AM
Post #41 of 44
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Posts: 51
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yeh....im gonna have to agree with yosemite here...and all the countless others who have said it too...sure, you got screwed, sure you shoulda got recognition...but ther isnt anything you can do about it...i assume you were just using the forum to vent...
i formally recognize your efforts in topo-mapping
there...be happy
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spork73
Jan 3, 2003, 7:36 AM
Post #42 of 44
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that sux but what software did you use to make your maps?
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roughster
Jan 3, 2003, 9:17 AM
Post #43 of 44
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a program called Top Draw. Very handy for making topos
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climbingcowboy
Jan 3, 2003, 10:56 AM
Post #44 of 44
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roughster- i agree with you what a jerk, i feel you should let him use them but that he should identifiy whos they are or from what site their from. i went through something like this to, this %*$*^%* put my routes in a book without contacting us (theres only 6 people putting up routes in this location) he went ahead and made up his names and own ratings (that were way off), and when confronted (nicely) he said you should have wrote the book first, that little (*&%^%.
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