Subject: RE: Your Opinion Requested
From: "Lawrence Rosen" <lrosen@rosenlaw.com>
Date: Fri, 10 Sep 2004 16:05:12 -0700

 Fri, 10 Sep 2004 16:05:12 -0700
Glenn,

You wrote:
> I saw the provisions below in the Terms and Conditions of a Web site that
> I visited.  I question the enforceability of these provisions and would 
> like your opinion.  

Why in the world would you even visit the website, not to speak of
contributing something to it, of someone who makes a statement like the one
you quoted:

> "Any remarks, suggestions, ideas, messages and data submitted by you to me
> through this website or other medium (i.e. phone, FAX, U.S. Mail) shall be
> and remain the exclusive property of [redacted]."

Do I think he'll be able to enforce an implied and unexecuted IP assignment
like that one? No. Well, perhaps only against someone intentionally stupid
enough to give that clown "remarks, suggestions, ideas, messages and data"
despite knowing in advance what pound of flesh he's demanding in exchange.
 
The only thing I'd do is send him copyrighted letter telling him he's a
jerk, and explicitly give him permission to make and distribute as many
copies of my letter as he wants. His way is no way to encourage polite
discourse and the exchange of ideas in a free society. If everything is to
be owned that way, nothing is free.

Of course, your notice is much more polite:

> "Submitting anything to me by any medium (Website, e-mail, phone, fax,
> postal mail, etc.) means that you are granting me a nonexclusive license
> in perpetutity for any and all non-commercial use of the submission in 
> whole or part without compensation or notice to, permission from, or 
> encumbrance by you."  [In certain cases, I believe that removal of the 
> non-commercial restriction may be justified.]

Such a notice is probably not even needed. I always feel free to freely use
any information that people send me unsolicited (unless I learn it through
an attorney-client confidence or some other obligation of confidentiality).
In many jurisdictions that's the law; I don't know if intellectual property
is treated the same way in your jurisdiction.

Technology companies are usually very careful about accepting unsolicited
intellectual property from third parties because of the risk of being
accused of stealing it rather than inventing/creating it themselves. They
build procedural barriers to the acceptance of unsolicited IP. In that, your
notice is defective. You might be better off with no notice at all. But I'm
not sure, and I'm certainly not going to advise you about that in this
general email. Hell, I'm not even willing to guarantee anything herein as
legal advice.

> Please let me know if you would like this to remain between us.
> Otherwise, I would also like to pass your opinion on to the Webmaster, 
> either under your name or credited to "a person I believe to be an 
> experienced attorney and practitioner in intellectual property law."

Thanks for offering to quote me to that webmaster. Feel free to copy this
email to him or anyone else who frightens people into thinking that
ownership of their IP can be transferred to someone else simply by
disclosing it. Be grateful we don't live in a world like that.

/Larry

Lawrence Rosen 
Rosenlaw & Einschlag, technology law offices (www.rosenlaw.com)
3001 King Ranch Road, Ukiah, CA 95482 
707-485-1242 * fax: 707-485-1243 
email: lrosen@rosenlaw.com