Again, not legal advice, and inherently unreliable:
I’d argue expressio unius (i.e., by making an express statement of how they deal with copyright violations, it is excluded from the blanket waiver, which I’d also argue is inapplicable because of negligence), promissory estoppel, negligence (duty is to follow their stated procedure for copyright investigations, breach is not following it, etc.), and maybe other things. The point here, though, is that bienville should be able to call their Copyright Agent and say, “Hey, you thought I was violating copyright? Show me how, and I’ll show you that I own the copyright.” Should be relatively easy to resolve.
Damages is a different concept than restitution. Getting money back that you paid is restitution. bienville’s damages are the value of the website, the cost to replace it, etc. Just because you got something free doesn’t mean you’re not damaged when it’s taken away from you.
We don’t know anything about their standard procedure. What if their standard procedure is to delete the profile whenever anyone is accused and the accusation is “credible”?
This is a matter of contractual and legal rights and obligations and service provider-customer relationships. This is a legal matter. Lawyers are relevant to legal matters.
All of you here are pontificating on Bienville’s legal and contractual rights. The only opinion regarding his legal and contractual rights that Bienville should listern to are those of his lawyer.
Even if the lawyer’s conclusion is that the service provider doesn’t have to do anything, competent correspondence on the part of a lawyer might very well persuade the service provider to do something to help Bienville out of his pickle.
Yes, corporations are not your friends. But they do need satisfied customers. But, quite often, when a customer complaint is brought to a company’s attention, the company decides that it is in its interest to do something to make the customer happy. Lawyers are not just for filing lawsuits.
While I find the prospect of success to be weak (well, the OP’s remedies, really), in my experience ISPs roll over the other way just as easily as when they are presented with a well-worded letter from the aggrieved party. Legal departments neither have the time nor the energy to respond to subpoenas, questionaires, and attend dispositions, or anything where they would be well-advised to seek expensive outside counsel. [And, upon preivew, what Ascenray said.]
A creative lawyer could work with a theory of a breached duty of care especially if they can prove myspace acted beyond simple negligence. Perhaps: myspace has all these internal policies and controls in place, then they go and delete information haphazzardly, knowing full well that users may have valuable content.
I won’t comment on the success of such actions, but I’ve read many crazy cases on breach of duty of care in law school to know that there may be some options available. I won’t even comment on how such actions may possibly be violative of the DMCA safe harbor provisions (which they have precariously listed, imo, should be listed in a separate copyright policy notice). Again, this is not legal advice…
I think that the point was that maybe bienville could contact MySpace on his own first instead of having to go get a lawyer first thing, and see if something can’t be done.
I am most definately not a lawyer, so this is probably all blowing smoke. But, since you don’t pay anything for use of MySpace how can this be considered a contract? Aren’t contracts something that involve I agree to do A for you in return for you doing B for me. In this case, only MySpace is putting out anything.
Compare it to SDMB before money was being charged. While you had to agree to a registration form, it couldn’t be considered a contract, could it?
As such, I don’t think contract law comes into play. But hey, I’m a computer programmer.
Why? A couple hundred bucks to get a lawyer to write a letter with a bunch of fancy legal talk like Campion shared with us above is a lot different from “involving the legal system.” Why must we always have this kneejerkery in these threads - “just live with it” may well not be his only option, and why the fuck isn’t he entitled to find out for certain what his possibilities are?
I really wish people would refrain from sharing their amateur legal judgments left and right. Most of us aren’t lawyers, and coincidentally, the one lawyer who stopped in mentioned that there are possible arguments that the OP could make. So those who don’t have a clue about the law - let’s keep the legal opinions to ourselves, okay?
I will add, though, that in my opinion depending on MySpace to do your marketing might not be the best idea.
The concept is called consideration. Also, like all free services, users of myspace are subject to advertising. I haven’t read their privacy policy (do they even have one?) and I suppose there is nothing that doesn’t stop them from sending your e-mail address and any other contact information out to telemarketers. So, myspace is definitely getting something out of it. What, exactly, is anyone’s guess, but I have a good idea.
Yes, it can. Consideration, while just one of the elements of a contract, does not have to be in a monetary form. It simply has to be an exchange of value, or benefit/detriment theory. In the typical breach of duty cases, A asks B to watch something for him (A). While no money is changing hands, A does receive the benefit of having free time. Oh, and B has the detriment of having his time used to watch something for A. In pre-SMDB fee days, users have the benefit of using the SDMB, search functions, archives, etc. The SDMB had to put up with our crazy posts and millions of questions.
You know, “get a lawyer” is not the same thing as “sue the bastards.” A lawyer familiar with copyright law might be able to draft a compelling letter that convinces (not coerces) MySpace to rethink the deletion of bienville’s account.
Contradicted by their stated policy and procedure, as listed on their website and as relied upon by users. If they list one (stringent) procedure on their website to get people in, but actually use a much laxer standard in choosing to take down a profile, I imagine there would be “a bunch of fancy legal talk” (kudos to Excalibre) that could be brought out for that.
And Miller’s right, damn his eyes. If only “get a lawyer” did mean “sue the bastards.” The suing is most of the fun. Well, that and the fancy business cards.
Well, the missing profile lists out the usernames of all 300 friends, so getting the page content back would give him the ability to find all of his friends.
Hey, bienville - I was one of your friends, you can add me again when you get up and running. See? You’re 1/300 of the way done already!
Thanks everybody. I was actually pretty surprised to see this turn into a legal advice Thread. Lots of good information.
I did reply (politely) to the e-mail as soon as I received it (about 24hrs ago), I still haven’t gotten a reply.
Everything I had on the page- photos, songs, etc.- is in my possession and I can just reload it when I start a new page. The BIO and the BLOGS were written directly without copy but that’s not really a big deal I can rewrite it (but I’m not very good with coding so it’ll be a bit of a slow process).
Basically I just want to first confirm that when I start a new page, it won’t be automatically deleted when it is recognized as an account that had previously been deemed to be a violation. I also want the opportunity to assert that all of the intellectual property does indeed belong to me.
The big problems are really these:
and especially:
And NO this is not the only avenue that I employ for networking and promo- I do all the old fashioned stuff too. But the fact of the matter is that MySpace has grown to be one of the most effective tools available for these purposes.
A tip for when you start back up…keep a separate list of your Friends. I have a fan page for Happy Rhodes on MySpace and I keep track of everyone I send an Add Request to, everyone who sends an Add Request to Happy, and everyone who accepts and who I accept. I put the actual Friends list online so it can be accessed easily without clicking through dozens of pages. It would be a godsend to me if Happy’s page ever disappeared and I had to start all over again.
I don’t invite individuals to be on Happy’s list (well, a few, but only a few), but I do invite bands/musicians/musical artists of all genres, because I like knowing about them, and I think they should know about her. Individuals should be on the list because they’re fans though, either from before or because they found her MySpace page and liked her and requested an add themselves.
The list is a bit time-consuming, but I do a straight copy and paste from their page to a template. Example of template:
(<a href="">MySpace page</a>) <br>
Then I just copy and paste their name and myspace url right before I send an Add Request, or right before I approve an Add Request (I always check out the pages of the musicians and listen to their music before I request or accept, and I read profiles of individuals if they’ve requested an add.) . Example:
Charlotte Martin (<a href="http://www.myspace.com/charlottemartin">MySpace page</a>) <br>
which comes out looking like this (though the underlying code is a bit different):
It’s easier for me to do it that way than to make the name a hotlink. I keep the list as an html page since I upload it to the web, but I open it to add things to it in Notepad.
My list is not alphabetical, it’s by page number, because I want to see them in context of where they are in the Friends list. If that’s not important to you you’ll save a lot of time by keeping them alphabetical because once the list gets to be a certain length, it starts to become a pain in the ass.
Oh god yes. I’ve become a MySpace addict (can you tell?) because other musicians are discovering Happy for the first time. I get thrills when I read through the comments…mini highs that are better than drugs. Not the kudos for me (though those are nice too), but the rush of people discovering and loving an artist I love. Happy’s not trying to “make it” in the business anymore. Her days of dreams of “being discovered” are far behind her. She makes music because she loves to make music, because it’s in her bones. I have accepted that she’ll never be known to the general music-listening public, but I think it’s a crime that other musicians don’t know who she is. I’m trying to rectify that in my own little way.
Good luck in dealing with MySpace. I have plenty of beefs with them (too many ads, adware, possibly spyware in the ads, and features I would like to have) but I’m too in love with what MySpace is doing for Happy, and it’s free, so I’m willing to put up with a LOT.
I hope hope hope you get your page back. Keep us informed.
A competitor of MySpace or a competitor of Bienville?
What do you mean by “restraint of trade”? Do you mean unfair trade practices? In that case, you’d mostly have to look for state law. Do you mean antitrust/competition issues? If so, I doubt it.
You mean they’ve committed no crime? That doesn’t mean that a lawyer isn’t any use. For a start, a lawer would read the contract, specifically:
Yes, there is meaningful text in the contract and MySpace is certainly setting up an expectation of reasonable level of proof to qualify as “credible.” Because this section is more specific, there is reason to think that case law implies it will have authority relative to the more general provisions of the contract, when copyright disputes are at issue. If the decision was arbitrary & capricious, I’m skeptical that the court would leave the plaintiff hanging.
