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Need FReeper Legal Help
numberonepal

Posted on 10/08/2008 4:38:08 AM PDT by numberonepal

I have a legal question for some FReepers that may be able to help. Here's the situation.

  1. I paid for and legally downloaded an ebook.
  2. I then put that book on my personal web space for backup and for a place to access the book.
  3. After some time of the book being on my servers Google decides to index the PDF file. I never requested the index from Google.
  4. Google provides a link to the book where it can be downloaded for free from my server.
  5. Author of the book calls me to ask why I'm offering his book for free. I explain that I'm not and remove the book from the server while on the phone with him.
  6. The author wants compensation for loss of business. He has asked me to come up with a number for compensation.
  7. My server logs tell me when and how many times the link was hit. Being that the link was directly to the PDF it is safe to say the book was downloaded.
OK, those are the facts. What I need to know is whether I should retain the services of an attorney. If so, what kind of attorney? I've done a great deal of research on this matter but cannot seem to find any cases for precedent in such a scenario. Any help would be greatly appreciated.


TOPICS: Books/Literature; Computers/Internet
KEYWORDS: copyright; law; legal
Thanks for all the advice in advance. I've learned my lesson.
1 posted on 10/08/2008 4:38:08 AM PDT by numberonepal
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To: numberonepal

Copyright law is not like “theft” there are subtle differences. Since you took down the content as soon as you were made aware of the problem, under the DMCA he has little additional recourse, unless he sues you in court.


2 posted on 10/08/2008 4:40:44 AM PDT by ikka
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To: numberonepal

Why didn’t you just upload it for storage? No link. You could access it from the directory without the link for others.


3 posted on 10/08/2008 4:41:05 AM PDT by Netizen (If McCain really put 'Country First' he'd have been working on securing our borders.)
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To: numberonepal

I would tell him to pack sand, that his book was of no value, and in fact you want a refund!


4 posted on 10/08/2008 4:42:41 AM PDT by Federalist Society
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To: numberonepal
I would retain the services of any good attorney at least for an initial consultation. You may find that your exposure is minimal, and if you can clearly document how many times the e-book was downloaded you will know exactly how much revenue the author has "lost."

Anyone here have a ping list for lawyer Freepers?

5 posted on 10/08/2008 4:43:55 AM PDT by Alberta's Child (I'm out on the outskirts of nowhere . . . with ghosts on my trail, chasing me there.)
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To: numberonepal
should retain the services of an attorney

No. You acted properly at the authors request. The ball is in his court let him initiate the fight. Be apologetic after all you were in the wrong, but do not give the impression that you believe there may be a case for compensation. Don't put any resources into this unless you are forced to.

6 posted on 10/08/2008 4:55:34 AM PDT by Realism (Some believe that the facts-of-life are open to debate.....)
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To: numberonepal

Robots.txt

For the next time.


7 posted on 10/08/2008 5:00:25 AM PDT by Malsua
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To: numberonepal; Realism
I agree with Realism's advice in Post#6. That is what I would do if I were in your situation.

Keep in mind, though, I am not an attorney - nor do I play one on TV.

8 posted on 10/08/2008 5:01:56 AM PDT by WayneS (Vote Obama bin Biden 2008 - "Because the world doesn't suck enough yet".)
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To: numberonepal

Curiously...how many downloads to you THINK may have been done to the book? Have you notified Google that the spider indexed the page and it needs to be removed (in addition to your removing the copy) - erase any reference that it was there. There is a content removal link at Google.

How did the author discover it? Just out searching his name and your link was there?

Your personal space does not have a password protection? In other words, it was published to a public website? If it were password protected, the hits could have come from something else since no one could access it. I’m trying to help assess how many hits actually came from visitors who happened upon your site. People pay a fortune for search engine results to get people to their site and this content just happened to be found out there? They either searched for the book (is it a best seller or something?) and found your link (as mentioned get that removed)...or, not too many people found your personal URL pdf by surfing out on the web.


9 posted on 10/08/2008 5:02:13 AM PDT by jilliane
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To: Malsua
Robots.txt

I know, I know. When I put the book up I never intended for it to be there very long. I simply forgot it was there.

10 posted on 10/08/2008 5:03:01 AM PDT by numberonepal (Don't Even Think About Treading On Me)
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To: Netizen
Why didn’t you just upload it for storage? No link.

That's what I did, although it was in the top level directory for the domain. I did not provide a link. Google provided the link.

11 posted on 10/08/2008 5:03:49 AM PDT by numberonepal (Don't Even Think About Treading On Me)
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To: Federalist Society
...and in fact you want a refund!

The work is exemplary and I've read the book numerous times (non-fiction). I wouldn't be truthful if I acted in such a manner. But, I appreciate your input.

12 posted on 10/08/2008 5:05:32 AM PDT by numberonepal (Don't Even Think About Treading On Me)
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To: ikka

Thanks. I’ll look into the DMCA. I gave it a cursory skim, but didn’t see anything that stood out for this scenario.


13 posted on 10/08/2008 5:06:45 AM PDT by numberonepal (Don't Even Think About Treading On Me)
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To: Alberta's Child
and if you can clearly document how many times the e-book was downloaded you will know exactly how much revenue the author has "lost."

I do in fact know how many times it was downloaded and from where the folks came to get it. I also have their IP addresses FWIW. I was thinking (to myself) of making an offer based on his site conversion rate and the number of downloads from my site.

14 posted on 10/08/2008 5:10:07 AM PDT by numberonepal (Don't Even Think About Treading On Me)
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To: WayneS

He could promote the books sale on the web page as a courtesy for the mistake. The author may take the gesture as more economically favorable than a fight would be.


15 posted on 10/08/2008 5:11:45 AM PDT by Realism (Some believe that the facts-of-life are open to debate.....)
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To: numberonepal
At this point you really have no idea if it was even downloaded (and neither does he). I perform searches all the time and back out of several links before finding what I was looking for; still counts as a hit.

I would think at this point he has to prove damage. To do so he would have to prove others made copies from you site. That is almost impossible.

Further, you had no intention to cause harm and corrected the problem as soon as you knew of it.

The burden is on him...

16 posted on 10/08/2008 5:18:06 AM PDT by El Laton Caliente (NRA Member & www.Gunsnet.net Moderator)
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To: Realism; WayneS

I’ve really slobbered all over him both on the phone and in email. This is a rare time when I genuinely offered an apology. I really was sorry to have wasted his and my time over such a matter. I really appreciate your advice. Are you an attorney Realism?


17 posted on 10/08/2008 5:18:09 AM PDT by numberonepal (Don't Even Think About Treading On Me)
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To: Realism; numberonepal
He could promote the books sale on the web page as a courtesy for the mistake. The author may take the gesture as more economically favorable than a fight would be.

I think this is a great idea. I'm sure the fine print of terms of sale of the eBook clearly prohibited anything like loading it onto a publicly accessible website. But it sounds like numberonepal honestly didn't realize the general public would be able to find and access it there. A free ad with link to the site where it can be purchased would be reasonable compensation.

I'm sure the author DOES very wisely do periodic searches to see if the book has be illegally posted to publicly accessible websites. He'd be crazy not to.

18 posted on 10/08/2008 5:18:54 AM PDT by GovernmentShrinker
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To: jilliane
Curiously...how many downloads to you THINK

I KNOW how many downloads there were. Since it was a PDF the download is automatic.

How did the author discover it?

Someone else informed him of the link from Google.

Your personal space does not have a password protection?

No password protection on the site. It is open to the public. Folks got to the book directly from Google.

19 posted on 10/08/2008 5:21:55 AM PDT by numberonepal (Don't Even Think About Treading On Me)
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To: numberonepal
Are you an attorney Realism?

Im in the engineering field. Ive never had much use for an attorney's advice, but I have had to use them as a mouth piece.

20 posted on 10/08/2008 5:23:49 AM PDT by Realism (Some believe that the facts-of-life are open to debate.....)
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To: GovernmentShrinker
I think this is a great idea.

I've thought of putting something up at the address that would direct the free downloaders to his site. I just haven't done anything yet until I've gotten some proper legal advice. I do need to look into his book and see if there are any disclaimers about uploading the PDF to a public site. That's a good idea.

21 posted on 10/08/2008 5:24:59 AM PDT by numberonepal (Don't Even Think About Treading On Me)
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To: numberonepal

I would just come up with a number and pay him. He is expecting it and you don’t want to have to pay an attorney too.


22 posted on 10/08/2008 5:25:06 AM PDT by MomwithHope (Wake up America we are at war with militant Islam and liberalism - 2 fronts.)
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To: Realism

Thanks. This is the first time in my life where I’ve even thought about an attorney.


23 posted on 10/08/2008 5:25:37 AM PDT by numberonepal (Don't Even Think About Treading On Me)
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To: MomwithHope
I would just come up with a number and pay him.

That may be the best advice, but I've got to come up with a way to figure out a number.

24 posted on 10/08/2008 5:26:36 AM PDT by numberonepal (Don't Even Think About Treading On Me)
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To: WayneS

But.....did you ever stay at a Holiday Inn Express?


25 posted on 10/08/2008 5:38:15 AM PDT by Kimmers (Government is an association of men who do violence to the rest of us......Leo Tolstoy)
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To: numberonepal

You have FReepmail.


26 posted on 10/08/2008 5:38:49 AM PDT by aposiopetic
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To: numberonepal

$200! It was Google that is distributing the copy without you kowledge or permission. Unless the author verifies that he had some sort of Harry Potter hit on his hand, tell him its going to cost him more in attorney fees then he’ll ever get out of you!


27 posted on 10/08/2008 5:40:33 AM PDT by Bommer (Who was Obama's diction coach? Bevis or Butthead? Uhhhhhh.....)
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To: numberonepal
The author wants compensation for loss of business. He has asked me to come up with a number for compensation.

He is making you do the work here. I hope your legal council advises you well. If you have an AAA membership you may be able to get a free 1/2 hour consultation.

28 posted on 10/08/2008 6:17:23 AM PDT by IllumiNaughtyByNature (I Love The Smell Of Schmidt Storm in the Morning...and Afternoon....and at Night!!!!!)
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To: numberonepal

I would take the position that the stats are inconclusive as to what accounted for them. That’s legit.

Scripts and bots can replicate human behavior. DON’T assume that all your hits/downloads were done by humans who found your personal page out of the zillions of pages on the internet. Don’t rely on the download weblog stat to crucify yourself. “The search engines index web pages, text files, and other “human readable” files. Images and other such files are ignored. But the engine does read Adobe PDF files and will return search results for these.”

Here’s an interesting article...
http://www.divorcekit.com/Google/Googlebot_Wont_Go_Home.html
(see the part about reading pdf to the end)

If it’s possible that the downloads weren’t done by people, then what was the damage? The content is not there now so even if the search results across the planet point to your page, it’s a broken link. Document the dates you published the content, the date you removed the content so subsequent appearances of the link on search engines are irrelevant. Make sure Google removes the cache version and any other you become aware of.


29 posted on 10/08/2008 6:22:59 AM PDT by jilliane
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To: numberonepal

Be careful coming up with a number to pay him. If you go that route you definitely need a lawyer to draft it and release you from further claims.


30 posted on 10/08/2008 6:27:25 AM PDT by jilliane
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To: numberonepal

Making him an offer will soften him. I would figure on somewhere between 1/2 and 1/3 of those who access the pdf and multiply that by how much he charges for the download.
If you offer based on 1/3 he may bite you can also say it’s all you can afford. Get it behind you, you are obviously upset best to settle it now. Good luck! I am heading in for a knee replacement and won’t be able to answer you anytime soon. But do let me know how it goes.


31 posted on 10/08/2008 6:35:33 AM PDT by MomwithHope (Wake up America we are at war with militant Islam and liberalism - 2 fronts.)
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To: MomwithHope

Momwithhope....good luck on your knee surgery!!! Get well soon.


32 posted on 10/08/2008 6:45:17 AM PDT by jilliane
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To: numberonepal

If Google posted the link without your knowledge, then they have some exposure here as well. Keep me posted on how this unfolds, as I’m curious to know how these things end up getting resolved.


33 posted on 10/08/2008 7:18:35 AM PDT by Alberta's Child (I'm out on the outskirts of nowhere . . . with ghosts on my trail, chasing me there.)
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To: MomwithHope

Good luck with the surgery. It’s hunker down time for you. I know of a few folks with the replacement and they all have had a tough row to hoe even with never missing a PT session. One thing is that they are all glad they did it after about a year. I really appreciate your input.


34 posted on 10/08/2008 7:19:23 AM PDT by numberonepal (Don't Even Think About Treading On Me)
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To: numberonepal

Certainly, if you can avail yourself of the opinions of an attorney at little or no cost, go ahead. You complied with the DMCA as far as removing the file when notified. His recourse is to sue you, by VOLUNTEERING information or funds you only diminish your standing should it come to that. His material is freely available on other sites anyway, and they will not be as understanding as you were to take it down. Regardless of how much you enjoyed the book, I would cease communication with him as he has chosen an adversarial position. Anything you say WILL be used against you, you can rest assured.


35 posted on 10/08/2008 7:20:50 AM PDT by cqnc (Remember Innocent until Proven Guilty? WHAT A CONCEPT !!!)
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To: ikka; Netizen; Federalist Society; Alberta's Child; Realism; Malsua; WayneS; jilliane; ...

I’m touched you would all be interested in my plight. All this input makes me a lot more optimistic of the outcome. Grazie ad tutti!


36 posted on 10/08/2008 7:26:07 AM PDT by numberonepal (Don't Even Think About Treading On Me)
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To: cqnc
I would cease communication with him as he has chosen an adversarial position.

Besides the initial phone call and an email apologizing for him having to waste his time on the matter there has been no further contact. I am working on retaining counsel to do the talking for me. Your advice is solid. Thanks.

37 posted on 10/08/2008 7:28:54 AM PDT by numberonepal (Don't Even Think About Treading On Me)
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To: numberonepal

Well, unless Google actually ‘posted’ the link, instead of the link just showing up in someone’s search results, they’re not really at fault here - all someone needed to do is (simplified version) search for pages with the word ‘directory’ in them, then limit the search to PDF files, and add the name of the book or the author’s name or another keyword so they don’t have to sift through every PDF file on the entire web. That would give them the results of basically every pdf file with their search terms in the name that are sitting on website servers somewhere, even if it’s not openly posted.

So, in the future, double-check with an IT person to make sure that your online backups are secured and people can’t access the folder that contains them from the web (an attempt to do so would result in ‘403 forbidden’ showing up in their browser window) and name the ebook backup something else so it won’t show up in search results to begin with, or just keep your backups in an external hard drive.


38 posted on 10/08/2008 11:20:16 AM PDT by Hyzenthlay (Quis custodiet ipsos custodes?)
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To: Hyzenthlay

Sound advice. I did at least change the file name of the book before uploading it, but that didn’t change the content of the PDF. The content was indexed.


39 posted on 10/08/2008 12:05:13 PM PDT by numberonepal (Don't Even Think About Treading On Me)
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To: numberonepal
This will probably not be of much comfort, and this is a little tongue in cheek, because placing a computer on the net with port 80 open is in reality an invitation in the real world, but...

<tongue slightly in cheek>

...technically your computer (server) on the Internet was "hacked" by Google.

Google is the party who should be sued, if anyone. You did not ask to enter into business with Google. They somehow without your invitation or a proper normal link found a private "deep link" to your content, and then they downloaded your copy of the book which you intended for personal use. They probably even took kept their own copy cached, and they distribute that to any of their cronies (users) who want your content or to link to and attempt to hack your computer some more.

If any of us got similarly creative by mining deep content on some company's computer--for example if we mined and deep linked to a new unreleased movie stored on a Warner Brothers computer--then both WB and the movie producer would call it hacking and would try to press criminal charges against us. So why is Google exempt from the same charge and why is the book publisher railing against you instead of Google?

Maybe you could tell the book publishers to report Google for hacking your site.

</tongue slightly in cheek>

 
40 posted on 10/08/2008 3:39:00 PM PDT by Weirdad (A Free Republic, not a "democracy" (mob rule))
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To: jilliane

Thanks, the surgery went well, thought I would be going home tomorrow. Lots of pain and an ultrasound later revealed a blood clot from just below my hip all the way down to my ankls. So I am still here can’t get, out of bed, looking at anoerwe week or 10 days. My daughter brought in her laptop tonight so I could freep.aI will be doing more lurking than anything as typing is not so easy.


41 posted on 10/11/2008 7:40:38 PM PDT by MomwithHope (Wake up America we are at war with militant Islam and liberalism - 2 fronts.)
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To: numberonepal

see post 41


42 posted on 10/11/2008 7:41:40 PM PDT by MomwithHope (Wake up America we are at war with militant Islam and liberalism - 2 fronts.)
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To: MomwithHope

I’m so sorry to hear you’re in pain. Probably going to be pretty medicated for a bit. Thank God for daughters - I will keep you both in my prayers tonight. Get well soon.


43 posted on 10/11/2008 7:48:50 PM PDT by jilliane
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To: MomwithHope

Get well soon.


44 posted on 10/11/2008 8:38:21 PM PDT by numberonepal (Don't Even Think About Treading On Me)
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