| WritersBeware |
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Edited by: WritersBeware Feb 1, 10, 02:08PM
| #81 |
Joined: Apr 19, 07
Threads: 152
Posts: 8,684
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Major: There is nothing to transfer since the copyright ownership was never transfered to the company.
Let me ask you a question, A. Would this be your defense in court when defending against a major university or an attorney general?
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| WRT |
Company Representative |
Feb 1, 10, 02:12PM
| #82 |
Joined: Sep 29, 09
Threads: 14
Posts: 1,850
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Copyright never transferred to the company ... so, the service contract/work for hire agreement makes no mention of copyright?
In that case - and according to both UK and US law - the writer owns the copyright.
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| WritersBeware |
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Feb 1, 10, 02:12PM
| #83 |
Joined: Apr 19, 07
Threads: 152
Posts: 8,684
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Major: If the company freelance writer explicitly agrees not to publish or resell the work other than to grant exclusive rights to the work to the customer then there's probably nothing more interesting to see.
Bottom line: the company's internal "agreement" with each writer has absolutely no bearing on the existing laws that bind the SELLER of academic research materials. In the eyes of the law, the SITE is the seller, not the freelance writer that the site employs.
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| WRT |
Company Representative |
Feb 1, 10, 02:13PM
| #84 |
Joined: Sep 29, 09
Threads: 14
Posts: 1,850
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WritersBeware: Would this be your defense in court when defending against a major university or an attorney general?
Pls explain ... am very interested.
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| WritersBeware |
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Feb 1, 10, 02:17PM
| #85 |
Joined: Apr 19, 07
Threads: 152
Posts: 8,684
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WRT: Copyright never transferred to the company ... so, the service contract/work for hire agreement makes no mention of copyright? In that case - and according to both UK and US law - the writer owns the copyright.
In the US, this is where arguments related to "implied-in-fact contract" would come into play.
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| WRT |
Company Representative |
Edited by: WRT Feb 1, 10, 02:18PM
| #86 |
Joined: Sep 29, 09
Threads: 14
Posts: 1,850
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WritersBeware: the company's internal "agreement" with each writer has absolutely no bearing on the existing laws that bind the SELLER of academic research materials. In the eyes of the law, the SITE is the seller, not the freelance writer that the site employs.
That being the case (and I agree), how is it that some companies do not have agreements in place?
Another question - most industries are regulated. Why isn't ours? What on earth will it take to put some regulations in place?
Any who respond with `because our services are illegal' ... don't. Only illegal if we knowingly allow customers to submit the work as their own or `subtly hint' that they may.
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| WRT |
Company Representative |
Feb 1, 10, 02:21PM
| #87 |
Joined: Sep 29, 09
Threads: 14
Posts: 1,850
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WritersBeware: In the US, this is where arguments related to "implied-in-fact contract" would come into play.
I see ... makes sense - a bit like our `verbal understanding' as contract ...
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| Major |
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Feb 1, 10, 02:24PM
| #88 |
Joined: Oct 3, 06
Threads: 12
Posts: 504
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WritersBeware: Bottom line: the company's internal "agreement" with each writer has absolutely no bearing on the existing laws that bind the SELLER of academic research materials. In the eyes of the law, the SITE is the seller, not the freelance writer that the site employs.
Then it may suggest that no agreement between the writer and the comopnay has any bearing on the existing laws. If a company advertises 'no resell for X months' policy and has internal "agreement" with each writer, does the agreement really matter?
WRT: In that case - and according to both UK and US law - the writer owns the copyright.
The writer grants exclusive rights (and gives up his resell/publish rights) to the produced work to the client.
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| WRT |
Company Representative |
Feb 1, 10, 02:27PM
| #89 |
Joined: Sep 29, 09
Threads: 14
Posts: 1,850
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Major: The writer grants exclusive rights (and gives up his resell/publish rights) to the produced work to the client.
The honest ones do. Or, at least, inform their customers if they intend to resell, etc.
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| FreelanceWriter |
Writer |
Edited by: FreelanceWriter Feb 1, 10, 02:37PM
| #90 |
Joined: Oct 8, 08
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Posts: 657
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WritersBeware: Try the next link.
I'm familiar with Education Law 213; is that the only NYS statute relevant to this industry? It doesn't require any transfer of copyright for a violation, just the provision of any written work for submission for academic credit.
Is NYS Education Law even enforceable against anybody who isn't a student or a professional educator? (Not a rhetorical question: I genuinely don't know.)
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| WritersBeware |
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Edited by: WritersBeware Feb 1, 10, 03:37PM
| #91 |
Joined: Apr 19, 07
Threads: 152
Posts: 8,684
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WRT: That being the case (and I agree), how is it that some companies do not have agreements in place?
They either don't know/understand the law or are simply rolling the dice.
WRT: most industries are regulated. Why isn't ours?
Well, to a certain extent, the American industry is regulated (I don't know about any regulation in the UK). The laws that I have referenced are the regulations enacted by each state. The problem is that fines and injunctions do not come into play unless the infractions get reported to an attorney general (or a private party like BU takes the bull by the horns). As evidenced in the Boston University case, a private party (BU) or an attorney general can and will sue online essay companies that are based/incorporated in OTHER states. State jurisdiction is irrelevant.
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| Major |
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Feb 1, 10, 03:43PM
| #92 |
Joined: Oct 3, 06
Threads: 12
Posts: 504
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To sum up, companies should get some useful information in this thread and hopefully all of them will comply with the laws as any legitimate company should do.
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| WritersBeware |
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Edited by: WritersBeware Feb 1, 10, 03:43PM
| #93 |
Joined: Apr 19, 07
Threads: 152
Posts: 8,684
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FreelanceWriter: I'm familiar with Education Law 213; is that the only NYS statute relevant to this industry? It doesn't require any transfer of copyright for a violation, just the provision of any written work for submission for academic credit.
Exactly—that is precisely what I am trying to communicate to Major. Irrespective of direct language in each state law regarding "copyright transfer," the practice of employing "you [the customer] will own the copyright" as a marketing tactic is unlawful because it clearly breaks the "should reasonably have known" threshold of each state law.
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| WritersBeware |
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Edited by: WritersBeware Feb 1, 10, 03:50PM
| #94 |
Joined: Apr 19, 07
Threads: 152
Posts: 8,684
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Major: The writer grants exclusive rights (and gives up his resell/publish rights) to the produced work to the client.
Sorry, but the company cannot grant copyright ownership to the freelance writer and, at the same time, demand that he/she never resell his/her own, copyrighted property. The right to resell is at the very core of copyright law. If the writer cannot resell, he/she does not own the copyright. Any contradictory, convoluted contract employed by the company would be rendered invalid in any US court of law in relation to the adjudication of the aforementioned state laws applied to an online company.
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| WRT |
Company Representative |
Feb 1, 10, 04:01PM
| #95 |
Joined: Sep 29, 09
Threads: 14
Posts: 1,850
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WritersBeware: Irrespective of direct language in each state law regarding "copyright transfer," the practice of employing "you [the customer] will own the copyright" as a marketing tactic is unlawful because it clearly breaks the "should reasonably have known" threshold of each state law. |
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| WritersBeware |
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Feb 1, 10, 04:13PM
| #96 |
Joined: Apr 19, 07
Threads: 152
Posts: 8,684
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WRT: Once again, thank you.
No problem.
WRT: save themselves possible future probs
Here's the catch, WRT. A powerful university or an attorney general will never sue just one company. One, ignorant company can wet a prosecutor's palate and entice him/her to file the lawsuit, but all companies will pay the price. The prosecutor will attach as many defendants to the lawsuit as he/she can, which was the case (so to speak) in 1997. Remember, the goal of any prosecutor will be to cripple the entire "essay-writing industry," not just one, meaningless site.
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| WRT |
Company Representative |
Feb 1, 10, 04:33PM
| #97 |
Joined: Sep 29, 09
Threads: 14
Posts: 1,850
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WritersBeware: A powerful university or an attorney general will never sue just one company
Yes ... the 1997 case. Well, isn't that a good enough reason for our policing ourselves? Should any of us find that we are in violation of any law, why don't we address the situation and make the necessary changes instead of trying to justify our decisions/actions? And, given the critical nature of what you just pointed out, shouldn't that tell us that we really need to push the scammers out?
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| Major |
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Feb 1, 10, 04:37PM
| #98 |
Joined: Oct 3, 06
Threads: 12
Posts: 504
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WritersBeware: Sorry, but the company cannot grant copyright ownership to the freelance writer and, at the same time, demand that he/she never resell his/her own, copyrighted property. The right to resell is at the very core of copyright law.
What does it mean 'cannot'? Is it illegal if they make such an agreement? Would such agreement be invalid? You're trying to make up the laws or your own interpretations that suit your own position, but that doesn't mean the position is one and the only legal way.
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| WritersBeware |
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Edited by: WritersBeware Feb 1, 10, 05:16PM
| #99 |
Joined: Apr 19, 07
Threads: 152
Posts: 8,684
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Major: You're trying to make up the laws
That's an amusing accusation, but I don't make up laws. If you're going to accuse me of making false statements, you need to provide counter-evidence. It seems to me that you're frustrated because the facts that I am communicating are counter to your current business model. Is that an accurate assumption?
Major: Is it illegal if they make such an agreement?
In how many different ways can I communicate the same facts? There is a huge difference between "illegal" and "unenforceable/invalid." It is not "illegal" to make a contract (in and of itself), regardless of how ridiculous or potentially illegal the terms of that contract may be. Laws aren't broken until the illegal terms contained in the contract become practice and charges are filed. More relevant to the essay industry is the fact that criminal and monetary penalties won't apply to violating essay sites until a knowledgeable whistleblower comes forth, a university takes the bull by the horns, or a DA sees taking down the entire essay industry as a major notch in his/her career belt.
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| Major |
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Feb 1, 10, 05:33PM
| #100 |
Joined: Oct 3, 06
Threads: 12
Posts: 504
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My position is that writers who give up copyrights to their papers AND allow the company to make multiple sales of their papers (while they are being paid only once) is not a fair business practice [at least from the writer's point of view].
To me the fairest situation is that either the two parties (ie. the writer and the company) share revenues from possible multiple sales or no party does.
But you're right that there are different business models and your defending a particular business model and my defending another model is understandable.
WritersBeware: In how many different ways can I communicate the same facts? There is a huge difference between "illegal" and "unenforceable/invalid." It is not "illegal" to make a contract (in and of itself), regardless of how ridiculous or potentially illegal the terms of that contract may be.
So you suggest that an agreement between a writer and a company that the writer keeps copyrights, but at the same time agrees not to sell the work to more than one customer is unenforceable/invalid?
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| WritersBeware |
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Edited by: WritersBeware Feb 1, 10, 05:43PM
| #101 |
Joined: Apr 19, 07
Threads: 152
Posts: 8,684
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Major: So you suggest that an agreement between a writer and a company that the writer keeps copyrights, but at the same time agrees not to sell the work to more than one customer is unenforceable/invalid?
I am not "suggesting" anything. I know copyright law. Either one owns the copyright or one does not own the copyright. If one does own the copyright, the ability to resell one's own work is inherent. If one cannot resell the work, one does not own the copyright of that work. There is no middle ground. Any contract suggesting otherwise will be considered invalid and provide absolutely no defense to an essay site owner in a court of law. The company cannot have its cake and eat it, too. All facts considered, a judge will flat-out laugh your suggested defense/justification out of court. Again, if you don't believe me, study the BU lawsuit of 1997 or consult a copyright attorney. The, you can come back here and acknowledge that I am correct.
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| WritersBeware |
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Edited by: WritersBeware Feb 1, 10, 05:49PM
| #102 |
Joined: Apr 19, 07
Threads: 152
Posts: 8,684
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Major: My position is that writers who give up copyrights to their papers AND allow the company to make multiple sales of their papers (while they are being paid only once) is not a fair business practice [at least from the writer's point of view].
Do you even realize how silly that assertion is? To be considered in any way "unfair," the company would have to hide copyright exclusions/limitations from its writers.
1. That policy complies with the law.
2. The writer gets paid a fair, mutually acceptable fee for his/her labor, fully aware of the future, exclusive resale rights maintained by the company.
3. Nobody's holding a gun to the writers' heads.
What you are suggesting is that all freelancers on the planet, in every industry, should have copyright ownership in the products that they produce for-hire. Do I really need to go there?
Did you give copyright ownership to the designer and programmer of your sites?
How about the guy who painted your house? Does he have the right to come peel off the paint? I think he should be able to do that; after all, he painted it.
One more time:
In the eyes of the law, the seller is the site, not the freelancer who works for the site.
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| Major |
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Edited by: Major Feb 1, 10, 06:32PM
| #103 |
Joined: Oct 3, 06
Threads: 12
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WritersBeware: I am not "suggesting" anything. I know copyright law. Either one owns the copyright or one does not own the copyright. If one does own the copyright, the ability to resell one's own work is inherent. If one cannot resell the work, one does not own the copyright of that work. There is no middle ground. Any contract suggesting otherwise will be considered invalid and provide absolutely no defense to an essay site owner in a court of law.
So in your book the words "provision" or "limitation" do not exist. I'm not sure how one can argue with your assumptions.
WritersBeware: The company cannot have its cake and eat it, too.
My point was that I don't feel it's honest that the company has two or more cakes and only pay for one.
WritersBeware: Do you even realize how silly that assertion is?
I'd like to hear opinions of active writers here; I don't think they would think my position is silly.
WritersBeware: 1. That policy complies with the law.
Right. But the policy that has provisions or limitations mutually accepted by both parties also complies with the law.
WritersBeware: 2. The writer gets paid a fair, mutually acceptable fee for his/her labor, fully aware of the future, exclusive resale rights maintained by the company.
Right. In my example the writer also gets paid a fair, mutually acceptable fee for his labor but at the same time doesn't let the company (and him/herself) to make extra profits of his labor in the future.
WritersBeware: 3. Nobody's holding a gun to the writers' heads.
Who is holding a gun to the writers' heads in my example?
WritersBeware: What you are suggesting is that all freelancers on the planet, in every industry, should have copyright ownership in the products that they produce for-hire. Do I really need to go there?
What I'm suggesting is that if BOTH parties mutually agree to do whatever they wish with their copyright ownership they can freely do so and their agreement is valid.
WritersBeware: Did you give copyright ownership to the designer and programmer of your sites?
IF I wanted to, I would make an agreement with him and such agreement would be a legal and valid agreement.
WritersBeware: How about the guy who painted your house? Does he have the right to come peel off the paint? I think he should be able to do that; after all, he painted it.
He has the right to peel off the paint IF WE MUTUALLY AGREE he has the right to peel off the paint. But in your book it's illegal and invalid if we make such an agreement..
WritersBeware: In the eyes of the law, the seller is the site, not the freelancer who works for the site.
Great, then I'm going to sue amazon.com, not the manufacturer, the next time I buy a battery that exploded and killed my cat.
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| WritersBeware |
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Edited by: WritersBeware Feb 1, 10, 09:11PM
| #104 |
Joined: Apr 19, 07
Threads: 152
Posts: 8,684
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Major: Right. But the policy that has provisions or limitations mutually accepted by both parties also complies with the law.
You're misunderstanding the laws. Would you actually tell the judge that your "internal provisions or limitations" make it acceptable for you to sidestep the law? The site's internal contract with the writer is MEANINGLESS and completely irrelevant. The site is the seller. The site is unlawfully communicating to the customer the he/she will own the copyright. The judge won't give a damn about your "provisions or limitations." The law is the law.
Major: My point was that I don't feel it's honest that the company has two or more cakes and only pay for one.
Sorry, but your feeling is irrational, and I already provided several reasons as to exactly why that is the case. Please look up the definitions of "honest" and "unfair." A contract is neither unfair nor dishonest if both parties fully understand and agree—not under duress—to the terms of the contract. Now, validity is a different issue altogether. The contract is VALID only if it does not conflict with existing law.
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| WritersBeware |
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Edited by: WritersBeware Feb 1, 10, 09:28PM
| #105 |
Joined: Apr 19, 07
Threads: 152
Posts: 8,684
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Major: What I'm suggesting is that if BOTH parties mutually agree to do whatever they wish with their copyright ownership they can freely do so and their agreement is valid.
I've already explained why you're wrong. If the company advertises copyright transfer to the customer, it is both breaking the law and committing outright fraud against the customer.
Major: IF I wanted to, I would make an agreement with him and such agreement would be a legal and valid agreement.
Yes, as long as a THIRD PARTY (e.g., unsuspecting and misled customers) is not involved. You're comparing apples to oranges.
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| WritersBeware |
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Feb 1, 10, 09:33PM
| #106 |
Joined: Apr 19, 07
Threads: 152
Posts: 8,684
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Major: WritersBeware: In the eyes of the law, the seller is the site, not the freelancer who works for the site. Great, then I'm going to sue amazon.com, not the manufacturer, the next time I buy a battery that exploded and killed my cat.
You know perfectly well that the "law" to which I refer encompasses the specific group of state laws around which this entire debate is based.
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| WritersBeware |
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Edited by: WritersBeware Feb 1, 10, 09:37PM
| #107 |
Joined: Apr 19, 07
Threads: 152
Posts: 8,684
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Major: He has the right to peel off the paint IF WE MUTUALLY AGREE he has the right to peel off the paint.
Firstly, that would never happen. Secondly, one could argue that such a contract could be voided based on one of the party's lack of sound mind and body.
Major: But in your book it's illegal and invalid if we make such an agreement.
No, not illegal; just irrational. Alas, you are once again comparing apples to oranges. In this analogy, there is no THIRD PARTY (e.g., unsuspecting and misled customer) involvement. Also, the two parties in the analogy are not bound by the specific laws that I referenced.
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