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An unknown author uploads online content that was originally deleted several years ago. Is it legal to reupload his content?

Baltimore, MD |

The original author's name is nonexistent. A way to contact the original author's name is nonexistent. The content is approximately 7 to 8 years old, but one of our users managed to discover it. Whether or not this is fortunate, the user reuploaded the unknown author's content, without permission, but there was no way to ask for permission.

Nobody knows who the author is or how to contact them since no known records of such exist.

The content was discovered in an abandoned website domain which was legally accessed through an online website crawler.

The content is also currently uploaded on a different repository for public use with a virtual simulator. That's what the content is; a virtual model. No forms of monetary compensation or payment is involved in this situation.

Attorney Answers 5

Posted

And that folks is how illegal uploaders talk before they get sued for willful copyright infringement. Let's see. You copied, without permission, material that was uploaded by another unauthorized person.
How on earth do you think that gives you permission? That is like someone stealing the loot from a bank robber and asking if that is legal because you weren't the one who robbed the bank. Theft is theft even if you steal from a thief.Just because someone else distributes infringing material does not make out legal for you to distribute copies of the infringing material.

I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.

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Posted

Even if this was a fair use under statutory provisions and for no monetary gain, the author's rights are not lost because you do not know who or where he/she is. It is likely an infringement since it is use without a license to do so. Justifying why the owner was not contacted is an excuse to mitigate the penalty for copyright infringement, when and if you are sued.

It is also good to know if the material is protected by copyright - is it a creation of another and reduced to a tangible medium? The second portion of the question is true since you found it somewhere. If the content is good enough to upload/reupload, then it must have been a creation by another. You should endeavor to locate the owner (or who holds such rights) or wait to be sued or otherwise contacted by the rightful owner.

Contact your lawyer and prep yourself for the eventual unearthing of the owner, to your detriment.

This is not a legal advice as I do not have an attorney-client privilege with you. You should retain a lawyer before acting on any generally available advice.

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Posted

The fact that you can't contact the author to ask for permission does not give you the right to violate their copyright. They may have intentionally hidden their identity to avoid people asking permission because they have no intent on granting the permission.

Fastest way to determine the owner is to go ahead with your plans to upload it, and wait for their copyright infringement suit. Their identity will be on the line called Plaintiff.

I am an attorney licensed to practice in Texas, Louisiana and before the United States Patent and Trademark Office. Laws vary from jurisdiction to jurisdiction and the above may not be an accurate assessment of the laws for your area. The above should be taken as general guidance and not specific legal advice. For specific legal advice you should seek a licensed attorney in your jurisdiction practicing in the area specific to your issue. The above does not constitute or establish an attorney client relationship. If you wish to receive specific advice about your legal issue, then contact my office to schedule a personal consultation.

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Posted

Publishing the material is clearly copyright infringement for all the reasons my colleagues note. As for who would be monetarily liable -- you or the person who published the material -- for that infringement requires more facts for the analysis. Even assuming, however, the best case for you [you're simply an internet service provider acting as a non-interactive webhost] because you now have actual knowledge that the material was published by someone other than the copyright owner you would likely be found liable along with the actual uploader. You and your own copyright owner need to decide if you're obligated to take down the material. My take is that you quite likely must take it down.

The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.

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Posted

I cannot tell if you are a "service provider" within the meaning of 17 USC 512(c). If you are and have filed your registration at the Copyright Office, then you are most likely immune from a claim by the owner of the material if the material was placed there by the user and you otherwise meet the requirements of the DMCA (and if you get a take down notice, you take it down).

The other lawyers correctly note that orphaned works and apparently abandoned works still retain copyright if they were first published after 1989 in the US (if published before that date without notice and registration, then the work fell into the public domain).

You really should consult with a lawyer. The answer is not as simple as is suggested by these responses. /mike

The above is information and not legal advice and may not be relied upon for any reason. Please consult a lawyer for legal advice.

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