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Let's say you're the author of a book. Then you want to post a chapter online on some website. Or upload it for ePublishing. It doesn't matter where, but let's say that somewhere in that site's eight-bazillion word "terms of service" agreement, that no one reads, but everyone "agrees to" when they create an account, it says:

By posting anything on our site you assign us all copyright to the posted work...

Or similar language. Would they they then legally own you charterers, world, story, etc? Or would it be unenforceable?

And if so, are there any safeguards you could take to preemptively block such behavior, such as a disclaimer inside the book cover that reads something like:

Copyright 1999 - Me. Copyright may not be assigned by adhesion contract, or any digital terms of service agreement, or via any online form, or by any means other than a signature of the copyright holder signed using a blue ink pen on physical paper or parchment. Any other contract or agreement that attempts or purports to assign copyright shall not be valid.

Cragislist recently tried (and is still trying in different ways) to get the copyright for whatever you post there via TOS. But if that's legal for them to do that, what's to stop someone like Amazon from "updating" their terms of service for eBook publishers (which of course their TOS says they can do), and making it say, "You assign to Amazon all copyrights for the uploaded ebooks". Or even, "by uploading an ebook for Kindle, you give Amazon Prime the right to make film adaptions of your work".

Is there a way to protect your IP from inadvertently being licensed/stolen/assigned via TOS "agreements", without having to waste your life reading huge one-sided online "contracts" that are "subject to change without notice" anyway?

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are there any safeguards you could take to preemptively block such behavior, such as a disclaimer inside the book cover that reads something like

The safeguard you outline would be overridden as soon as the author enters any contract that requires assignment of copyright.

(I would not delve in the differences between licensing and copyright assignment because that hypothetical author is dealing with a contract of adhesion which readily requires assignment; the author has no option to change the ToS to allow for licensing only)

Under contract law, one of the essential prerequisites is that the conditions of a contract be entered knowingly and willfully. By deliberately clicking on a ToS page to move forward with the uploading a copyrighted work, the author is signaling his awareness and acceptance of the ToS. The fact that the author chose not to read the ToS is irrelevant and very unlikely to strike whatever entitlements the website owner formulated in the accepted ToS.

For the same reason, the author's safeguard disclaimer does not bind the website owner: It cannot be said that the website owner was aware of that disclaimer at the time of the formation of contract between the author and the website owner. That is, the website owner did not knowingly and willfully accepted the author's safeguard. The website owner is not even expected to know about any safeguards which one of its potential user intends to establish.

The length of a ToS document is also irrelevant because the website owner has the valid argument that "the user-author could have skimmed through the ToS or do a search (via Control-Find) of keywords such as 'copyright' or 'property', whence any allegation of 'inadvertent' assignment of copyright is untenable".

Is there a way to protect your IP from inadvertently being licensed/stolen/assigned via TOS "agreements", without having to waste your life reading huge one-sided online "contracts" that are "subject to change without notice" anyway?

Yes. That consists of not uploading one's works in such platforms. In contract law that would be expressed as "declining an exchange of considerations". There are many other alternatives for an author to promote his work without being required to assign copyright.

  • Why do you say that licensing is "inapplicable in such adhesion contracts"? Wouldn't your arguments for the possibility of assignment apply even more strongly to licensing? I gave an actual example of such click-through licensing in my answer, one that has been treated as valid by many, and as far as I know not seriously challenged -- the publication license used at Wikipedia. – David Siegel Feb 20 at 13:31
  • Woulden't such a copyright notice at least constitute evidence of a lack of "knowing and wilful" acceptance of the assignment terms? – David Siegel Feb 20 at 13:34
  • @DavidSiegel It is not that licensing is inapplicable in adhesion contracts (as I initially put it). The author just has no opportunity to suggest an amendment of the ToS. Accordingly, I edited the answer to avoid confusion. I did not understand the question in your second comment. The website owner does not know and is not expected to know the safeguard that the user-author posted elsewhere. Thus, the safeguard does not bind the website owner at the time the author signs up in the website and uploads his work(s). – Iñaki Viggers Feb 20 at 15:51
  • I see. Yes the question asked mostly about assignment, but also mentioned licensing, and there are sites which do click-through licensing. The contract-law issues are much the same i think, the copyright-law issues are not because the specific provision limiting transfers would not apply. – David Siegel Feb 20 at 16:22
  • If the website owner had a click-through TOS which purported to effect an assignment of copyright, and a work had a notice such as the question suggests, and the case came to court, would not that notice furnish evidence that there was never a "meeting of minds" and so no valid transfer? – David Siegel Feb 20 at 16:25
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Under US law, this would not be valid. 17 USC 204(a) says:

A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.

I do not think such a "click-through" contract can be said to be "signed".

I am not sure if a similar law applies in other countries, although I suspect it does.

A copyright notice such as the question suggests might not be a bad idea -- it would at least make clear that there was no "meeting of minds" in a digital contract.

Note that licensing a copyrighted work is different from transferring the copyright, and neither 17 USC 204 nor any other provision of law that I know of, prohibits a license by click. Consider, for example, Wikipedia's posting statement, which says:

By publishing changes, you agree to the Terms of Use, and you irrevocably agree to release your contribution under the CC BY-SA 3.0 License and the GFDL. You agree that a hyperlink or URL is sufficient attribution under the Creative Commons license.

I think this has significant legal opinion holding that it would be binding on the poster, although I am not able to cite case law on the subject.

  • "I do not think such a "click-through" contract can be said to be "signed"". A click-through is tantamount to signing the document because it is made voluntarily and it reflects the user's awareness of the ToS. Thus, that meets the contract law prerequisites that a party knowingly and willfully binds himself to the terms of a contract. It is not just a coincidence that the button on which to click for acceptance is placed at the end in the ToS document. – Iñaki Viggers Feb 20 at 11:36
  • Is ther any case law specifically under copyright law that treats a click-through as a signature? Since 17 USC 204(a) specifically requires a "signature" not merely "knowing and wilful assent" as contract law generally does, I do not think contract law alone is decisive here. – David Siegel Feb 20 at 13:38
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    "Is ther any case law specifically under copyright law that treats a click-through as a signature?". Yes. Metro. Reg'l Info. Sys. v. Amer. Home Realty Net., 722 F.3d 591, 601-602 (2013) specifically addresses that question in the context of section 204 of the Copyright Act. – Iñaki Viggers Feb 20 at 15:28
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    In the cited case, a third party is saying, "that copyright transfer might not be valid because it was electronic" and the court replied, "electronic assignment of copyright can be valid". But they said, "can" not "always is", and specifically noted that there was no dispute between the original copyright holder and the company that copyright was supposedly assigned to. So if you deliberately send an email, or sign a contract using a service like Docusign, and you do it on purpose, then the transfer is valid. – Nick Feb 23 at 10:48
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    But this case does not address a copyright holder suing a website claiming that he was unaware that there was an assignment provision hidden in a 10,000 word EULA or TOS document, where the signer presumed the terms to be reasonable and/or boilerplate and/or unrelated. eg. if Hewlett Packard's printer driver EULA said, "you assign us the copyright to anything you print on your printer", I think a person would have a case claiming that that provision in HP's EULA is unenforceable because it's a-typical or unexpected. – Nick Feb 23 at 10:50

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