I can’t divulge the company names involved here but it involves a friend of mine running a web site. It has a forum. Copyrighted images were posted there, not that he wished that to happen. Now the copyright owner is on his case, which is fine, as I would be, too, in their shoes.
   They want to know who posted the material (the poster is anonymous, and he doesn’t host his own board). They also want the post to be removed ASAP.
   He wrote back politely to the American lawyer to ask what he could do to assist and got a fairly nasty reply back. It told him to seek legal advice and it would not comment on the Copyright Act 1976.
   A better solution would have been to advise my friend of how they both could move forward.
   It seemed pretty obvious that the client and lawyer didn’t have a clue on how these forums worked, and my friend does not know that much about copyright law. Perfect: an opportunity to cooperate.
   The lawyer could do this without breaching client–attorney privilege. After all, by working together, they might be able to find a solution to tracking down the anonymous poster. It’s in the client’s best interests. If my friend merely deleted the file as they demanded, both parties would never be able to trace the poster—not without a degree in advanced computing, anyway, or full access to the hosting company’s logs. Right now, that isn’t an option. It’s like asking for a gold-plated toilet: it’s possible, but it isn’t particularly viable.
   My friend could propose a solution such as warnings on his forum that would keep the publishing company happy long-term. And the lawyer should agree, if he really was serving his client.
   But no: the adversarial approach is the name of the game in the legal profession, and it isn’t limited to the United States.
   We have had to patrol a lot of web sites over the years for our own material, and that of my colleagues. We might learn of an infringing web site, for example. All the “hard” approaches of my colleagues tended to fail, or at least it did not get the result they wanted without raising the blood pressure of all involved.
   We would write in, explaining the situation, how little the original owners made off their work to begin with, and could they please remove certain files?
   Within a few hours I had agreeable responses. Occasionally, they would comment on my colleagues’ approach and how impolite they had been.
   Cooperation and dialogue aren’t solutions just for cross-cultural misunderstandings. They can help you on copyright matters.
   All my friend now has is a sour taste with the publishing company’s titles, thereby damaging their brands. Which is good for me, since the more people know they are run by a bunch of idiots, the happier I’ll be.
   I hope that if we were to ever hire lawyers and take copyright infringement matters out-of-house, we won’t deal with idiots who opt for bullying tactics first. We have a few pretty good ones we use in New York and yes, they do advise me occasionally for free—because now I have become an even more loyal client.
   Sounds to me like this lawyer is getting everyone mad so he has more billable hours. I’ll be noting his name to avoid him in the future. He probably watched too much LA Law when he was training.

Del.icio.us tags: law | lawyers | professional conduct | ethics | brands | cooperation | dialogue | copyright | intellectual property | copyright infringement Posted by Jack Yan, 22:01  permalink

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