copyright contract-law
Can a copyrighted work be asigned via an adhesion contract?
<p>Let's say you're the author of a book. Then you want to post a chapter online on some website. Or upload it for ePublishing. It doesn't matter where, but let's say that somewhere in that site's eight-bazillion word "terms of service" agreement, that no one reads, but everyone "agrees to" when they create an account, it says:</p>

<blockquote>
  <p>By posting anything on our site you assign us all copyright to the posted work...</p>
</blockquote>

<p>Or similar language. Would they they then legally own you charterers, world, story, etc? Or would it be unenforceable?</p>

<p>And if so, are there any safeguards you could take to preemptively block such behavior, such as a disclaimer inside the book cover that reads something like:</p>

<blockquote>
  <p>Copyright 1999 - Me. Copyright may not be assigned by adhesion
  contract, or any digital terms of service agreement, or via any online
  form, or by any means other than a signature of the copyright holder
  signed using a blue ink pen on physical paper or parchment. Any other
  contract or agreement that attempts or purports to assign copyright
  shall not be valid.</p>
</blockquote>

<p>Cragislist recently tried (and is still trying in different ways) to get the copyright for whatever you post there via TOS. But if that's legal for them to do that, what's to stop someone like Amazon from "updating" their terms of service for eBook publishers (which of course their TOS says they can do), and making it say, "You assign to Amazon all copyrights for the uploaded ebooks". Or even, "by uploading an ebook for Kindle, you give Amazon Prime the right to make film adaptions of your work".</p>

<p>Is there a way to protect your IP from inadvertently being licensed/stolen/assigned via TOS "agreements", without having to waste your life reading huge one-sided online "contracts" that are "subject to change without notice" anyway?</p>

<blockquote>
  <p>are there any safeguards you could take to preemptively block such
  behavior, such as a disclaimer inside the book cover that reads
  something like</p>
</blockquote>

<p>The safeguard you outline would be overridden as soon as the author enters any contract that requires assignment of copyright.</p>

<p>(I would not delve in the differences between <em>licensing</em> and copyright <em>assignment</em> because that hypothetical author is dealing with a <a href="https://www.law.cornell.edu/wex/adhesion_contract_%28contract_of_adhesion%29" rel="nofollow noreferrer"><em>contract of adhesion</em></a> which readily requires <em>assignment</em>; the author has no option to change the ToS to allow for licensing only)</p>

<p>Under <em>contract law</em>, one of the essential prerequisites is that the conditions of a contract be entered <em>knowingly and willfully</em>. By deliberately clicking on a ToS page to move forward with the uploading a copyrighted work, the author is signaling his awareness and acceptance of the ToS. The fact that the author chose not to read the ToS is irrelevant and very unlikely to strike whatever entitlements the website owner formulated in the accepted ToS.</p>

<p>For the same reason, the author's <em>safeguard disclaimer</em> does not bind the website owner: It cannot be said that the website owner was <em>aware</em> of that disclaimer at the time of the formation of contract between the author and the website owner. That is, the website owner did not <em>knowingly and willfully</em> accepted the author's safeguard. The website owner is not even expected to know about any safeguards which one of its potential user intends to establish.</p>

<p>The length of a ToS document is also irrelevant because the website owner has the valid argument that "<em>the user-author could have skimmed through the ToS or do a search (via Control-Find) of keywords such as 'copyright' or 'property', whence any allegation of 'inadvertent' assignment of copyright is untenable</em>".</p>

<blockquote>
  <p>Is there a way to protect your IP from inadvertently being
  licensed/stolen/assigned via TOS "agreements", without having to waste
  your life reading huge one-sided online "contracts" that are "subject
  to change without notice" anyway?</p>
</blockquote>

<p>Yes. That consists of not uploading one's works in such platforms. In <em>contract law</em> that would be expressed as "declining an exchange of considerations". There are many other alternatives for an author to promote his work without being required to assign copyright.</p>

<p>Under US law, this would not be valid. <a href="https://www.copyright.gov/title17/92chap2.html" rel="nofollow noreferrer"><strong>17 USC 204(a)</strong></a> says:</p>

<blockquote>
  <p>A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.</p>
</blockquote>

<p>I do not think such a "click-through" contract can be said to be "signed".</p>

<p>I am not sure if a similar law applies in other countries, although I suspect it does. </p>

<p>A copyright notice such as the question suggests might not be a bad idea -- it would at least make clear that there was no "meeting of minds" in a digital contract.</p>

<p>Note that <strong>licensing</strong> a copyrighted work is different from transferring the copyright, and neither 17 USC 204 nor any other provision of law that I know of, prohibits a <strong>license</strong> by click. Consider, for example, Wikipedia's posting statement, which says:</p>

<blockquote>
  <p>By publishing changes, you agree to the Terms of Use, and you irrevocably agree to release your contribution under the CC BY-SA 3.0 License and the GFDL. You agree that a hyperlink or URL is sufficient attribution under the Creative Commons license.</p>
</blockquote>

<p>I think this has significant legal opinion holding that it would be binding on the poster, although I am not able to cite case law on the subject.</p>
