[x-pubpol] Clicking "OK" to Terms of Use is deemed an electronic signature that can transfer copyrights

[Joly MacFie]

Via Judith Dornstein

http://www.lexology.com/library/detail.aspx?g=08d4ee55-c1f6-48f2-a21b-5db66a80a7dc

The Copyright Act requires that a transfer of copyright interests be in
writing and signed. In *Metropolitan Regional Information Systems, Inc. v.
American Home Realty Network,
Inc.*<http://jenner.com/system/assets/assets/7359/original/Metropolitan_20Regional_20v._20American_20Home.pdf>,
Nos. 12-2102, 12-2432 (4th Cir. July 17, 2013), the Fourth Circuit held, as
a matter of first impression, that this signed-writing requirement is
satisfied when a user clicks “yes” in response to an company’s electronic
terms of use (TOU) agreement that grants exclusive rights of copyright
ownership in uploaded materials. At issue in that case was plaintiff’s
online database of real estate listings. In order for users to upload
photographs to the database, they first must click a button to assent to
plaintiff’s TOU agreement, which states that all submitted images become
the exclusive property of plaintiff. Defendant, a competing real estate
listing business, obtained photos from plaintiff’s database and posted them
on defendant’s website. Plaintiff sued defendant, alleging copyright
infringement and violation of the Lanham Act; defendant responded that
plaintiff had no copyright interests in the photos because plaintiff’s
electronic TOU did not constitute a signed, written transfer agreement for
purposes of the Copyright Act. The court disagreed, and held that by
clicking “yes” to the TOU, users had signed a written transfer of exclusive
rights in the photos to plaintiff. In so holding, the court applied the
E-Sign Act of 2000, 15 U.S.C. § 7001 *et seq.*, which mandates that no
signature – defined to include electronic symbols executed by persons with
the intent to sign a record – shall be denied legal effect simply because
it is in electronic form. The court noted that the E-Sign Act expressly
exempts certain types of documents, but agreements to transfer copyright
ownership are not among them.

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