[Wheatfield]

At least where I live, such things have to be "conspicuously disclosed", particularly where the service is "free" or if it offers some kind of "business opportunity". If it isn't immediately visible at the point at which you are invited to sign up, the terms and conditions don't exist. They do things that way to rope you into a "unilateral contract", in effect by construing your acceptance of terms simply on the basis of your having contacted the website. It's a sneaky lawyer trick. If you call them on it, you probably win. "Conspicuous" generally means something that is at least as visible and noticable as everything else on the page you're looking at (the one that says "terms and conditions" in fine print at the bottom of the screen that invites you to type in your proposed user id and password). If it wasn't conspicuous, you didn't get notice of it at the time you accepted the offer, which means it's not part of your contract.


Virginia Code § 8.1A-201 Definitions:

...

(10) "Conspicuous," with reference to a term, means so written, displayed, or presented that a reasonable person against whom it is to operate ought to have noticed it. Whether a term is "conspicuous" or not is a decision for the court. Conspicuous terms include the following:

(A) a heading in capitals equal to or greater in size than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same or lesser size; and

(B) language in the body of a record or display in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from surrounding text of the same size by symbols or other marks that call attention to the language.

...

If you look at their sign up page, it is very straightforward. Right below the sign up link is the only fine print on the page, saying that by joining you agree to their terms.

---

Last edited by Wheatfield; 05-12-2019 at 12:40 AM.

If you look at their sign up page, it is very straightforward. Right below the sign up link is the only fine print on the page, saying that by joining you agree to their terms.

In that case, I'm thinking it's like Nancy Reagan used to say, "Just say, 'no!".

[Wheatfield]

In that case, I'm thinking it's like Nancy Reagan used to say, "Just say, 'no!".

It’s not something I would ever agree to. I’m not sure if their TOS link would be considered obvious enough for your jurisdiction, but the link is right there below the join button.
Most people, I would guess better than 99%, just click the join button without reading the terms. Even when a software writer makes you agree that you have read the TOS before approving, I bet most people just click through without reading.

Reminds me of a line from a movie, "My Cousin Vinny" - Vinny's "negotiating" with the guy who owes Vinny's girlfriend money from a pool-game bet. "Oh, you want to make a 'counter-offer' - that's what we lawyers (I'm a lawyer), call a 'counter-offer'."

PDL wants to make a "counter-offer", in this case what we lawyers (I'm a lawyer) call a "straw man argument". By ignoring the real issue and setting up a nonsense proposition that can be easily defeated, the proponent of a straw-man argument can appear to have scored points in an argument. There is not, and never has been, any such thing as a "poor man's copyright", by mailing or any other means. So if, as here, one were to mischaracterize the issue as one of the creation of a "poor man's copyright", it's easy to win the argument. Ok, PDL, you win.

If you want to be correct, however, from a legal perspective (at least within the U.S.), you might go back and re-read what I wrote earlier about the four different issues presented. And perhaps you missed the part about how a certificate of mailing issued by a local post office, being an official certification document of the United States, is self-authenticating and therefore not hearsay, and automatically admissible in any court proceeding in the U.S. - if you don't know what a certificate of mailing is, you can read up on it at www.usps.com.

Yet another post:
Common Legal Myth: Poor Man's Copyright
quote: There's just one problem: The poor man's copyright is not a legally recognized principle of IP protections.

What Is Poor Man?s Copyright? - By Daevas Design
quote: While this may sound ingenious, it is far from admissible in court. There are multiple complications with this method of dating a piece of intellectual property. People send mail on a regular basis that includes different kinds of property, but they do not receive copyright recognition, making poor man’s copyright no different. Furthermore, a piece of mail will not hold up as solid evidence in court because it can be easily tampered with. The date on mail can be altered and envelopes can be steamed open and have their contents replaced. It is difficult to prove that none of these happened. Therefore, current precedent is to not substitute a federal copyright with poor man’s copyright.

Poor Man's Copyright
quote:
Let’s lay it out in very bold terms – the first one being slightly bolder than the rest:
1)The poor man’s copyright can be faked, in several ways – easily
2)The poor man's copyright has rarely been heralded as a success anywhere that we can find online
3)A poor man’s copyright is not technically needed to secure a copyright.
4)A poor-mans copyright could leave you even poorer, if that’s all you have as proof of copyright

FACT CHECK: Poor Man's Copyright
quote:
Mailing one’s works to oneself and keeping the unopened, postmarked envelope as proof of right of ownership to them (a practice known as the “poor man’s copyright”) has no substantive legal effect in the U.S. We’ve yet to locate a case of its use where an author’s copyright was established and successfully defended in a court of law by this method. At best, such mailings might serve to establish how long the author has been asserting ownership of the work, but since the postmarked-and-sealed envelope “proof” could be so easily circumvented, it is doubtful courts of law would regard such evidence as reliable.

and finally:
10 Big Myths about copyright explained

[PDL]

dlh
I spoke with my brand new lawyer this past week, who had done work in Intellectual Property (IP). I told him what you said and his reaction was "There is not a judge in the US court who would not throw that argument out".

So here is a suggestion for you as being a lawyer - or past lawyer. Show us one case where the so called "poor man's copyright" has been accepted in a US court of law.

I'll wait - because you will never find such a case.

Additional Edit:

Found another site with explicit language: Poor Man's Copyright | LegalMatch
Quote:
How to Prove That You Were the First Person to Create a Work
Poor man's copyright cannot be used as a method to prove that you were the first person to create a work. In fact, no American court has found the poor man’s copyright method to be of any probative value. This makes sense because it would be easy to fake by placing new materials in a previously-mailed envelope (the U.S. Postal Service does not require envelopes to be sealed).

Emphasis is mine.

And from another site where a IP lawyer is one of the members: KodakOne and the Zombie Myth «
Quote:
In our numerous copyright lectures, we always discuss copyright myths and “mythconceptions”. There is one myth, that like Dracula, refuses to die. Like a zombie myth, continually rising from the dead. It’s known as “The Poor Man’s Copyright”.
That’s where instead of filing your copyright at the Copyright Office in accordance with Federal Law, you put your photo or photos in a sealed envelope and mail it to yourself through the US Postal system. Doing so proves nothing other than you mailed yourself an envelope of photos on that date. Photographers and illustrators typically perform this absurd act, not on the advice of an attorney, but rather because a fellow creator with no legal training and told them to do so. (Not unlike receiving medical advice from an exterminator)
Claiming that act provides copyright protection is laughable. Legally, it means zilch, nada, zero and nothing. As we’ve explained numerous times, failure to make a proper copyright registration with the Copyright Office in Washington DC means you can’t file a lawsuit for infringement. Period. Filing is only a problem if you fail to do so. We can laugh at gullible people who continually buy this urban legend. How foolish of them. Chuckle chuckle. Dilly dilly.

[RGlasel]

from a legal perspective (at least within the U.S.)

IANAL, but I've had to hire a good one, so I feel completely qualified to comment. The key difference between American and Canadian judicial systems is that Canadian jurisprudence is more hidebound and less accountable; to compensate, if damages awarded are greater than your legal costs, you have set a precedent that will be ignored in every future case. Our system is designed to favour not the rich, but those with access to the public treasury. Unless you can claim discrimination, it will cost everything you own to have your day in court and the odds of seeing justice served are not very good. Better to wait for justice in the hereafter.

It’s not something I would ever agree to.

That's the only thing to do if you really want to protect your copyright (or even maintain anysome value for your creative output). It's the "free" market, no different than a prostitute who gives preliminaries for free in the hopes of getting the john to pay for the whole night.

You mean my argument in which I said that there has never been such a thing as "poor man's copyright"? So he thinks, contrary to your previous position, that there IS such a thing?

That was admittedly a sarcastic comment, but as a serious matter, the issue of mailing an envelope to one's self is a matter of creating and preserving evidence. I wish I had a nickle for every time someone came to me with a trial date three weeks away, and they've done nothing to create and preserve the evidence they'll need to win at trial. Uniform response: "Sorry, I can't help you, you have no case. I advise you to take a voluntary dismissal without prejudice and start over." The time to create evidence is when the events happen that ought to be documented. Creating evidence is not improper, all evidence anyone ever used was created by someone - that is distinguishable from "fabricating" evidence, creating false evidence, which is never ok. Imagine a lawyer telling people that it's ok that there's no written deed of trust or mortgage instrument. That's what PDL's "attorney" is telling PDL, in effect. Frankly, I don't buy that story for a minute.

I am, however, always suspicious of someone who tells you that you should not document the facts with an eye to preservation of evidence. The guy who sells a gun, for example, without having received a proper bill of sale showing the serial number of the gun, the date of the transaction, and accurate information about the identity of the buyer, is likely to go to jail when the buyer commits a murder with that gun. A handshake is not evidence, spoken words in the air are insubstantial. Anyone who wants to dissuade you from having the evidence you need to protect your interets can only be interested in one thing: taking unfair advantage; in this case, there must be some reason why a person would want to make it easy to steal other people's rights in their photographs.

dlh
I spoke with my brand new lawyer this past week, who had done work in Intellectual Property (IP). I told him what you said and his reaction was "There is not a judge in the US court who would not throw that argument out".

So here is a suggestion for you as being a lawyer - or past lawyer. Show us one case where the so called "poor man's copyright" has been accepted in a US court of law.

I'll wait - because you will never find such a case.

Additional Edit:

Found another site with explicit language: Poor Man's Copyright | LegalMatch
Quote:
How to Prove That You Were the First Person to Create a Work
Poor man's copyright cannot be used as a method to prove that you were the first person to create a work. In fact, no American court has found the poor man’s copyright method to be of any probative value. This makes sense because it would be easy to fake by placing new materials in a previously-mailed envelope (the U.S. Postal Service does not require envelopes to be sealed).

Emphasis is mine.

And from another site where a IP lawyer is one of the members: KodakOne and the Zombie Myth «
Quote:
In our numerous copyright lectures, we always discuss copyright myths and “mythconceptions”. There is one myth, that like Dracula, refuses to die. Like a zombie myth, continually rising from the dead. It’s known as “The Poor Man’s Copyright”.
That’s where instead of filing your copyright at the Copyright Office in accordance with Federal Law, you put your photo or photos in a sealed envelope and mail it to yourself through the US Postal system. Doing so proves nothing other than you mailed yourself an envelope of photos on that date. Photographers and illustrators typically perform this absurd act, not on the advice of an attorney, but rather because a fellow creator with no legal training and told them to do so. (Not unlike receiving medical advice from an exterminator)
Claiming that act provides copyright protection is laughable. Legally, it means zilch, nada, zero and nothing. As we’ve explained numerous times, failure to make a proper copyright registration with the Copyright Office in Washington DC means you can’t file a lawsuit for infringement. Period. Filing is only a problem if you fail to do so. We can laugh at gullible people who continually buy this urban legend. How foolish of them. Chuckle chuckle. Dilly dilly.

---

Last edited by Unregistered User; 05-20-2019 at 05:10 AM.

You don't have to be a U.S. citizen, or even a "landed immigrant", to file suit in a U.S. court. Most of the world's patent litigation takes place in the federal District Court for the Eastern District of Virginia, Alexandria division, because that court is known to be well-versed in the subject and has one of the fastest dockets on the planet (known locally as "the rocket docket").

IANAL, but I've had to hire a good one, so I feel completely qualified to comment. The key difference between American and Canadian judicial systems is that Canadian jurisprudence is more hidebound and less accountable; to compensate, if damages awarded are greater than your legal costs, you have set a precedent that will be ignored in every future case. Our system is designed to favour not the rich, but those with access to the public treasury. Unless you can claim discrimination, it will cost everything you own to have your day in court and the odds of seeing justice served are not very good. Better to wait for justice in the hereafter.That's the only thing to do if you really want to protect your copyright (or even maintain anysome value for your creative output). It's the "free" market, no different than a prostitute who gives preliminaries for free in the hopes of getting the john to pay for the whole night.

[aslyfox]

First, anyone can sue for anything they like - that's the beauty (and curse) of the legal system. It's whether they can win the case that matters.. . .

slight modification

client: can I sue

attorney: that isn't the right question

client: is the right question - can I win

attorney: getting warmer

client: what is the right question then ?

attorney: can you collect the judgement

___________________

although I am a licensed attorney ( since 1982 ) the only thing I know about copyright/trademark/patent law is that unless you practice in that area, it is best not to try to offer legal advice in those areas.

other than one class back in law school, I have no knowledge about the issues in those areas.

so other than providing informational links, I won't join the discussion about the details of copy right law

[photoptimist]

slight modification

client: can I sue

attorney: that isn't the right question

client: is the right question - can I win

attorney: getting warmer

client: what is the right question then ?

attorney: can you collect the judgement

Quite true! That's the chain of logic used by lawyers working on contingency.

However, if the lawyer is working for billable hours, they might simply say "sure, you can sue!"

There's also the segment of copyright holders who feel more strongly about the "principle" of the issue or who "want to send a message." Those clients may not care if the lawsuit loses money.

The deeper point is that the system does not have a pre-suit vetting system that prevents non-meritorious suits (as far as I can see). A defendant can't simply say "this is BS" and ignore the legal action against them.

[aslyfox]

Quite true! That's the chain of logic used by lawyers working on contingency.

However, if the lawyer is working for billable hours, they might simply say "sure, you can sue!"
. . . .

well, if the attorney is ethical, it is the advice that should be given to any person seeking advice on litigation

true, the attorney on a contingency contract doesn't get paid, except for expenses, unless there is a recovery

but an ethical attorney must fully inform the client of what is the ultimate question.

IMHO, YMMV

[Lowell Goudge]

The whole issue being argued now, is the same as that which applies to video evidence, in terms of admissibility into court.you need to be able to establish continual chain of possession. Water marking etc help, but any image is admissible in court, providing you can show for example, the full chain of processing from image out of your camera to the image you upload. But you also need to be careful, if someone before you has , for example, taken the same shot from the same position, who owns the copy write? If you copied someone’s work, even unintentionally you are liable for copywriter infringement. Just ask George Harrison (maybe now you need a medium) about his song my sweet lord, and the song He’s So fine

[PDL]

You mean my argument in which I said that there has never been such a thing as "poor man's copyright"? So he thinks, contrary to your previous position, that there IS such a thing?

So you do not understand the word Myth?

That was admittedly a sarcastic comment, but as a serious matter, the issue of mailing an envelope to one's self is a matter of creating and preserving evidence.

So provide us a link to a case where mailing yourself a document was used as providing evidence?

Imagine a lawyer telling people that it's ok that there's no written deed of trust or mortgage instrument. That's what PDL's "attorney" is telling PDL, in effect. Frankly, I don't buy that story for a minute.

Where did this come from? Are deeds or mortgage instruments filed with the legal offices/courthouses? Are they dependent on having the people send the documents to themselves in the mail?

I am, however, always suspicious of someone who tells you that you should not document the facts with an eye to preservation of evidence.

Show us a single case where this method of "preserving evidence" has been used in a US court.

The guy who sells a gun, for example, without having received a proper bill of sale showing the serial number of the gun, the date of the transaction, and accurate information about the identity of the buyer, is likely to go to jail when the buyer commits a murder with that gun.

I have been in the business of selling firearms, once the firearm is in private hands, there is no requirement to show that I sold/gave the firearm to someone else. (In some states, WA now has a law on the books that requires all firearm transfers to be carried out through a federally licensed firearm dealer - but again there are some exemptions for "gun shows") Also, there is a federal rule prohibiting the BATF from tracking firearm "ownership" i.e. no federal database. The papers filled out by the firearms dealers are kept by the dealer for twenty (20) years and then sent to the BATF.
Gun Registration Paper Trail Is Long And Convoluted : NPR
If a firearm is recovered from a crime, the BATF (if called in) goes to the manufacturer to find out who the manufacture sent the gun too. The dealer will have the information and the following transactions are carried out as required through the paper trail. Your example is a false flag effort.

A handshake is not evidence, spoken words in the air are insubstantial. Anyone who wants to dissuade you from having the evidence you need to protect your interets can only be interested in one thing: taking unfair advantage; in this case, there must be some reason why a person would want to make it easy to steal other people's rights in their photographs.

This discussion is not about evidence. It your touted method of providing "evidence" is taken to its logical conclusion, then all of our homes would be full of sealed envelopes. Really.....

...

I've only been doing litigation for the past thirty years or so. You clearly have my pitiful experience beaten by a long shot, and are clearly an authority on the rules of evidence and civil procedure.

But, for the sake of argument, let's say that someone, on the offhand chance that such a thing MIGHT be admissible in some future litigation, did send himself an envelope, properly documented either by certified or registered mail, and a certificate of mailing, and it cost him, say, six or eight bucks to send it. He could include "contact prints" of hundreds of pictures at a time in one envelope. Let's say it didn't work when he got to court, opposing counsel says that (statutorily self-authenticating) documents issued by an agency of the United States are inadmissible as hearsay, and the judge sustains the objection. So what our photographer is left with is his own testimony, along with that of anyone else who had personal knowledge of the facts. Does that mean he shouldn't try it anyway?

I ask the question again, PDL, what interest do you have in dissuading people from documenting their position with self-authenticating evidence?

And, as an offhand note, I have defended people who have been charged with crimes committed by persons to whom they sold the guns. All that you say is correct in theory, but when you get to court, the assistant United States Attorney will tell you that the gun is "registered to" you, because the only record BATFE has shows that you bought the gun. The FBI is statutorily prohibited from retaining the information derived from FFL transfers, so they send that information to BATFE which keeps a large database containing such data. The federal courts treat that as "the gun registration database". There is no such thing as "gun registration" where I live, and private transfers are perfectly legitimate. That doesn't matter when it comes up for trial, because the practical reality is, if you didn't document the transfer, the U.S. will simply presume that you were in possession of the gun when the crime occurred. And even then, they will extort a plea bargain by adding more (bogus) charges and racking up the cost and trouble of defense. They know they'll probably lose at trial but they do it anyway, because most people are frightened by the prospect of just the risk of years in the penitentiary and don't have anywhere near the money it takes to mount an effective defense.

[PDL]

on the offhand chance that such a thing MIGHT be admissible in some future litigation, did send himself an envelope, properly documented either by certified or registered mail, and a certificate of mailing, and it cost him, say, six or eight bucks to send it. He could include "contact prints" of hundreds of pictures at a time in one envelope. Let's say it didn't work when he got to court, opposing counsel says that (statutorily self-authenticating) documents issued by an agency of the United States are inadmissible as hearsay, and the judge sustains the objection. So what our photographer is left with is his own testimony, along with that of anyone else who had personal knowledge of the facts. Does that mean he shouldn't try it anyway?

A lot of speculation here - so please show a single instance where this has been successful. - I'll wait.

I ask the question again, PDL, what interest do you have in dissuading people from documenting their position with self-authenticating evidence?

You have yet to show where this has worked or will work - Whataboutism to the extreme.

And, as an offhand note, I have defended people who have been charged with crimes committed by persons to whom they sold the guns. All that you say is correct in theory, but when you get to court, the assistant United States Attorney will tell you that the gun is "registered to" you, because the only record BATFE has shows that you bought the gun. The FBI is statutorily prohibited from retaining the information derived from FFL transfers, so they send that information to BATFE which keeps a large database containing such data. The federal courts treat that as "the gun registration database". There is no such thing as "gun registration" where I live, and private transfers are perfectly legitimate. That doesn't matter when it comes up for trial, because the practical reality is, if you didn't document the transfer, the U.S. will simply presume that you were in possession of the gun when the crime occurred. And even then, they will extort a plea bargain by adding more (bogus) charges and racking up the cost and trouble of defense. They know they'll probably lose at trial but they do it anyway, because most people are frightened by the prospect of just the risk of years in the penitentiary and don't have anywhere near the money it takes to mount an effective defense.

Please tell us why a assistant United States Attorney would be involved in a gun related crime in a case not in Federal Court? Isn't that why cities/counties/states have prosecuting attorneys? Or in your world/planet is everything a federal case.

Good Grief.