The moderators have a hard job. I am grateful for what they do.

Kindly,

John,

Thank you for the opening. I appreciate this opportunity to educate the RYPN readership about copyright law. Now, I am only talking in this post in general terms. I don't have a dog in the underlying disagreement that has reared its ugly head, nor do I know all of the facts. While I am an attorney, intellectual property is not my specialty. Questions? Consult an IP attorney, as your mileage may vary.

Often, claims of "copyright infringement" are used by those who try to use the legal system to silence any criticism of them personally or through their business. There are many stories of businesses trying to sue in order to prevent bad reviews, bad commentary, etc. Sometimes they are successful, the person posting the criticism steps down and away. I have even heard of shady law firms that would send threatening letters directly to individuals, and "copyright" them to prevent them from being shared with anyone. Other times, they run into someone who fights back, usually with the help of a public interest law firm. If you are ever threatened by someones, especially a business owner, over something you've posted online, I recomend you contact an attorney.

If an internet bully initiates a lawsuit in an attempt to silence you, the suit is often termed a SLAPP lawsuit. SLAPP stands for Strategic Lawsuits Against Public Participation. The idea is that the well-heeled bully can use the threat of financially ruinous litigation to intimidate people into silence. Some states have powerful Anti-SLAPP laws, like California (Where Jeff L. lives) and Texas.

The Digital Media Law Project has a good page on what a SLAPP suit is and what to do if threatened by one:

http://www.dmlp.org/legal-guide/responding-strategic-lawsuits-against-public-participation-slapps

Public Citizen, namely through Paul Allen Levy is a big defender of the little guy. Here's his bio at Public Citizen:

http://www.citizen.org/Page.aspx?pid=337

Here's a good article from Washingtonian Magazine about web bullies:

https://www.washingtonian.com/2014/02/03/paul-levy-the-web-bullys-worst-enemy/

Now, on to copyright. Posting copyrighted photos on RYPN, without permission or credit is likely a violation of the terms of service for using the form. However, it is unlikely illegal.

For example (and hypothetically), if a business posted photos of work it is performing on a website, and a person "pulled" those photos and posted them on a forum to comment on the work, it is likely covered by what is called "fair use."

Here's some information on fair use from the U.S. Copyright Office:

https://www.copyright.gov/fair-use/more-info.html

Now, fair use is what in legal terms is called an affirmative defense. It means that even if a perspective plaintiff (the business in our hypothetical) where to be able to prove each and ever element of its copyright infringement claim, the affirmative defense of fair use would prevent the plaintiff from prevailing.

Now, back to our hypothetical, if a person "lifted" those copyrighted photos from the web and tried to pass them off as examples of their own work, or otherwise commercially profit from it, then you'd have a good case of copyright infringement. Posting them to a forum to comment on them? Probably not. It'd be akin to posting passages of a poorly-written novel in your review, or clips from an awful movie.

Finally, a note to potential plaintiffs, read up on what is called "The Streisand Effect."

https://en.wikipedia.org/wiki/Streisand_effect

For the uninitiated (quoting directly from the wikipedia article), the Streisand effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet. It is an example of psychological reactance, wherein once people are aware something is being kept from them, their motivation to access and spread the information is increased.

Back to our hypothetical, if someone did steal the copyrighted photos from you, it might be best to let the situation go by the wayside. Calling attention to it may result in negative publicity, that outweighs any advantage in defending your rights.

That being said, please remember, this is a general legal commentary, as I am not aware of all of the specifics mentioned in John's post. Nor, should this be construed as an endorsement of one side's version of the facts or the other's.

One more question that popped into my head, "what about RYPN?" Could RYPN, and its moderators be held liable for alleged defamation posted on the form? Not likely. Section 230 of the Communications Decency Act is a powerful federal statute that immunizes places like RYPN.

https://www.eff.org/issues/cda230

Moderators:

What I think John is saying is that a moderator can post in the name of a user, and make it look like the post came from them. Is this possible? In other words, could a moderator post a post that looks like it comes from me and contains something along the lines of "I am a moron!"

I'm looking at the documentation for the version of the forum's software and do not see this feature, but I could be missing it.

Is this even possible?

Thank you, David.

John:
I have great respect for your work, I really do, but....

> I need to make a few comments;

I would disagree with this statement. This is not a preservation discussion. Its a discussion to be had over a beer or with the individual via email or a written letter. RyPN hangs on as a great source of inspiration for many of us in this field. This discussion does nothing to support our efforts.

Please, I beg you, do not keep at this in a public forum. It is only hurting RyPN and those who enjoy it. At this point, I'd ask that this thread be locked or removed in total. It does nothing for rail preservation.

J.R.

I already asked the moderator to remove it.

Honestly, if I were on your legal team, I'd advise you to shut the heck up, especially in posts on forums and social media. If you must participate in public commentary, I'd advise you to stray away from commenting on pending/prospective litigation. I wouldn't want my client's case ruined and/or damaged because my client shot his mouth off online, no matter how correct he is.

I'd advise you to let the attorneys do the legal work, including speaking on your behalf with regard to legal issues. I don't have an ASME R stamp, so it would be ludicrous for me to come into your shop, telling you how to weld up the seam on a boiler repair. It is just as ludicrous for you to "lawyer up" your own case if you had me on retainer.

At the worst, online comments by a client about prospective/pending litigation could ruin a case. At best, your client sits through a very uncomfortable deposition and or/jury trial being cross examined with versions of these public statements blown up on an overhead, used as an exhibits.

Ken White, who is an entertaining legal blogger, has a good article on the issues, titled "When I said 'shut up,' I also meant online:

http://mimesislaw.com/fault-lines/when-i-said-shut-up-i-also-meant-online/12744

Based on my hypothetical, I think that if someone "thieved" copyrighted photos and posted them to a forum to comment on them, it'd likely be fair use and not actionable infringement. If the alleged theft developed into some sort of actionable case with regard to loss of revenue, etc., I'd say the damages fall solely on the original tortfeasor and not on the website. Then again, that's just on my hypothetical, your mileage may vary.

The #14 is the albatross of albatrosses. I became the first one affected, and the list keeps going. Jeez.

John, I don't run this forum but I run others. I also do a lot of photography.

I'm not a lawyer, and I don't play one on TV. I did watch Perry Mason as a kid.

What I have seen in similar cases is the following. If somebody uses your images without your permission, the typical reimbursement is 3 times what you'd normally get. So, if i steal your photos and Trains prints them, it may be worth your time. Since you don't get paid for posting images on a forum, 3 times nothing is still nothing.

So, what can you do?

1) Ask the mods to remove them.
2) If it's particularly blatant case, request they ban the user in question.
3) If they don't comply, you can issue a DMCA (Digital Millenium Copyright Act) takedown notice to them and their hosting company. Most web hosts take those quite seriously.
I've had them filed against me in the past (with 1000's of members, it happens). I got an e-mail that said "If you don't fix this issue within 48 hours, we will, by taking your website offline." I deleted the photos banned the member, replied and that was that.

More info on the DMCA can be found here.
https://en.wikipedia.org/wiki/Digital_M ... yright_Act

Basically it says "We can't reasonably expect you to verify the authorship of all text and images. It's impossible to do so. In return for that, we do expect you promptly address the issue when a complaint is filed."

Suing RYPN, or Trainorders or Railpictures.net will most likely result in only one person getting monetary reward. That person would be your lawyer.

We are apparently seeing, once again, how vexatious threats of legal action, or even the mere threat thereof, can jeopardize the well-being of one of this vocation's most useful, and potentially educational, resources, simply by chasing away the "warm bodies" needed to keep such an operation going.

Have we who have been "in the pits" for a decade or more not seen, repeatedly, how much one "loudmouth," one "bully," one bombastic blowhard can "poison the well" of a museum or operation's mission and/or manpower corps, by "chasing away" people who either can't or won't put up with such drama or negativity for the sake of what's supposed to be a hobby?

I learned at too young an age that I had to stand up to bullies and not let them cower me. I've lived long enough to ultimately see vindication over all of them that I can recall--at least one dead prematurely, two in prison, one's life ruined, etc. And I've watched RyPN survive--just barely, unfortunately--the actions of another (online) bully.

Can't we all just get along, dammit? I, for one, don't scare easily.

My wife--and her publishers--and I have, indeed, dealt with image thieves. It happens.

In the one case, there was a rather brazen idiot stealing artwork (including my wife's) from various sites online and misrepresenting it all as his own, and trying to sell it to boot. My wife's publisher managed to get the one site shut down by filing DMCA notices with the ISP. When he popped up again, the attorney went after him with the financial sledgehammer. In spite of taking down the site instantly, the fact that he did it again was enough for the lawyer to collect good fees and dribble a few shekels back to the publisher--which didn't even pay for keeping him on retainer at a very modest, friendly fee.

I am not sure this is what Mr. Rimmasch is talking about, however.

It sounds to me, from what tiny bits of the supposed dialogue I'm reading, is that he has an issue with someone using photos from Rimmasch's site to point out or question supposed/alleged irregularities in repair, technique, or procedure (completely made-up example: "On what planet can this be called a good weld?"). This could even extend to misrepresentation of what the photos supposedly show.

If this is the issue--and I'm not saying it is--the issue is not copyright violation, but rather accusations of libel or defamation. That's a whole 'nuther ball of wax, as the sayin' goes.

If that's not actually the case, then what probably applies is the time-worn legal advice any country lawyer will be happy to tell you: When you're in a hole, the first thing to do is to STOP DIGGING.

What a delightful way to begin my day. I got up, discovered my car wouldn't start, hung the charger on it, slipped on the ice in my driveway and explored the outer limits of my vocabulary in several languages as I discussed with no one in particular the shortcomings of life in Minnesota.

Having gotten the car started, I proceeded to attempt to load my powered wheelchair onto its carrier on the back of my Jeep. After another surprise, close range inspection of the asphalt I finally got the accursed thing loaded, And returned to the house, intent on a pleasant cup of coffee, and a bit of relaxation before preparing the granddaughter for school. Mr. Coffee decided to be Mr. Smoke and Blown Circuit Breaker this morning. Got the breaker reset and smiled happily as we have a Keuring and a cup of coffee would be forthcoming, no matter what.

Coffee in hand, I plopped down in front of my computer and was confronted with YET ANOTHER [Bad Words Deleted] thread about the moderation of RyPN. I thought to myself that it would probably be more pleasant (and more productive) to go outside and deliberately fall face down in my driveway again, than to read this.

And I was right.

If I were solely responsible for RyPN I would shut it down, archive the files and call it a day. But I'm not, so I can't and won't. But if by consensus, the people who do manage this mess were to decide to shut it down, I certainly wouldn't oppose their choice to do so.

I will write more on this cheery topic, but I have a more important chore just now. Gotta get the granddaughter up, prepare her breakfast and get her off to school.

Happy New Year, Doug. There's only 363 more to go.

Dave

I want to take this opportunity to thank the moderators, both past and present, of RYPN, for all their hard, volunteer labor to both keep this website afloat (this also includes David Collison), and to keep it from becoming just another "Wild, Wild West" board, like so much of the internet is these days. Please do not become discouraged! There are those of us who will not give up on this website because it is simply too valuable a resource/meeting place for like-minded individuals in this field of railway preservation.

_________________
Have a Merry Tenth Day of Christmas and a Happy New Year!