Two Plus Two Tries Questionable Tack Against Todd Witteles’ PokerFraudAlert in Content Squabble

When does fair use of written content infringe on copyright protection of the original writer’s work? That’s a question that’s often asked in online-poker and gambling circles, with varying answers offered. One thing seems clear, however: If you as a poker fan write something on a poker forum or other public site, both the ownership of and responsibility for what you wrote remains with you. The forum owners? They may own the site and the framing mechanism – often the front end of what is referred to as a content management system (CMS) – but as to the comments that users provide, they own bumpus. This doesn’t mean, though, that sites don’t often try to infer otherwise.

The topic is gaining steam in poker-news circles recent days due to a content squabble between Two Plus Two (one of the largest and oldest poker forums), and the much smaller Poker Fraud Alert forum, run by pro player Todd Witteles. There’s no love lost between the two, and that animosity dates back at least a decade, to when Witteles, known as “Dan Druff” in poker circles, co-operated the old NeverWinPoker forum with Bryan Micon and Dustin Woolf.

In this latest squabble, 2p2 co-owner Mason Malmuth has been trying to apply some sort of legal pressure on Witteles to stop one of his recent practices, which is to report on the occasional topic of interest to his PFA readership. Witteles has been know to copy an individual post in its entirety from a given 2p2 sub-forum or thread. Witteles than discusses the topic, and he and his smaller forum and edgier, non-PC posters often take the discussion in a far different direction than the noise-laden 2p2.

Malmuth doesn’t like that, and he’s had a long history of attempting to bully his perceived competitors and protect his supposed market. Witteles recently revealed that he’d recei

Mr. Whittles,

We represent Two Plus Two Interactive in its business and litigation matters. Your website, www.pokerfraudalert.com, contains multiple discussion threads and posts lifted from Two Plus Two’s discussion forums at www.twoplustwo.com. As a registered user of the Two Plus Two forums, you are aware that the content on the Two Plus Two forums is protected by copyright and other applicable law. You are also aware that Two Plus Two expressly prohibits third party sites from replicating Two Plus Two content without our client’s permission.

Here, rather than pasting links to Two Plus Two’s content (or even brief snippets of Two Plus Two’s content for commentary purposes), several threads on your site contain lengthy word for word conversations and posts directly from Two Plus Two’s forums. Two Plus Two has never authorized you to publish any of its content on your site. Further, most if not all of the posts on your site containing Two Plus Two’s content appear to have been posted by you personally (Dan Druff) as opposed to other users on your message boards. 

Two Plus Two requires that you remove all posts from any user on www.pokerfraudalert.com containing posts and content from Two Plus Two. Two Plus Two also requires that you refrain from posting Two Plus Two’s posts and content in the future. Please confirm by way of response to this email that you and www.pokerfraudalert.com will comply with these requests. Otherwise Two Plus Two reserves its right to take all necessary measures to protect its content.

Except… it’s all bogus. While content theft is a very real problem, in this case there’s -zero- infringement. Two Plus Two doesn’t own the content that users post there, except perhaps for posts made by 2p2’s own ownership and employees. As several posters on both forums (including a couple of attorneys) have pointed out, that’s made abundantly clear by 2p2’s own terms of service.

Two Plus Two does not claim ownership of Your Content; however, you hereby grant Two Plus Two a world-wide, royalty-free, non-exclusive, perpetual, irrevocable, and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display Your Content and to incorporate Your Content in other works in any form, media, or technology now known or later developed.

Despite considerable huffing and puffing from Malmuth in recent days, including posting of other excerpts from 2p2’s extensive ToS, it’s all over with the acknowledgment that “Two Plus Two does not claim ownership of Your Content.” The site might be able to claim it owns a user’s screen name, but that’s about as far as it goes.

If you don’t own something, you have no legal say in how it’s being used, with a small handful of exceptional circumstances. In legal terms this is called having standing, and by 2p2’s own admission, only the original poster has those rights. The ironic, humorous part of it as this general benefits the forum owner, as it often relieves that owner of ultimate legal responsibility for what’s posted therein.

Malmuth has gone so far as to start a thread called the “Witteles Infringement Issue” – mind, it’s an imaginary, non-existent issue – and threatened to sticky the relevant thread and, seemingly, take more legal action if Witteles doesn’t stop copying individual users’ posts for further discussion.

Mindful of the vendetta, one can see that this is more bad blood than valid complaint, and one can only hope Witteles and PFA fight back.

So what could 2p2 to protect “its” content? First, the site would have to recognize what it does and doesn’t own. Individual posters are always free to protect their own rights by complaining about replication on other sites. By and large, however, all a forum can do, as a privately-owned offering, is to bar any unwanted outsiders from using that site’s services. Good luck blocking someone from reading what your site has to offer, personal vendetta or not.

(The opinions offered here are those of the author only, and do not necessarily represent the opinions of the owners and publishers of Fushdraw.net.

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