About that "sue and be damned" to the National Portrait Gallery ...

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Re: About that "sue and be damned" to the National Portrait Gallery ...

Ray Saintonge
Andrew Lih wrote:
> On Sat, Jul 11, 2009 at 9:54 AM, Thomas Dalton<[hidden email]> wrote:
>  
>> I don't know if there is precise precedent, but from what I've read I
>> think most people agree that "sweat of the brow" is, at least in some
>> cases, enough under UK law.
>>    
> I suppose we'd need a humidity reading from the room in which the
> photos were taken.
>  

 From that one might conclude that if the photos were taken during the
winter there would be no sweat of the brow. :-)

Ec

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Re: About that "sue and be damned" to the National Portrait Gallery ...

Ray Saintonge
In reply to this post by Robert Rohde
Robert Rohde wrote:

> There are serious legal disagreements about this, but people have
> argued for some time that the UK is perhaps the purest example of a
> "sweat of the brow" state with respect to their copyright law.  In
> other words, the prevailing view of many has been that UK law rewards
> an author's effort irrespective of creativity (neither "creative" nor
> "creativity" appear in the UK statute at all).
>
> There has never been a good test case, but serious people have opined
> that Bridgeman v. Corel (the US case establishing PD-Art for
> photographs of PD works) would have been decided the opposite way in
> UK courts.  In other words, there have been opinions that the effort
> involved in creating high quality photographs is by itself sufficient
> to embue that photograph with copyright protection in the UK even if
> the work being photographed is PD.  However, though there is no
> statutory requirement for creativity, there is one for originality.
> Hence, most of the arguments in the UK hence turn on whether such a
> photograph would qualify as "orginal" or not.  Some people believe
> that merely moving the image into a new medium is sufficiently novel
> to qualify for protection, while others dispute this.  Again, there
> isn't a lot of guidance on this point.
>
> As repugnant as the conclusion might be, it is entirely possible that
> the NPG could win this case under UK law and establish that
> photographs of PD works are definitively not PD in the UK.  It's not a
> sure thing, and comptent legal representation would no doubt make an
> important case out of it, but my reading of the commentaries in this
> area would such suggest that a victory by the NPG is entirely possible
> (and perhaps more likely than not) assuming the issue is decided based
> solely on UK copyright laws.

One should never be cocky about winning these things.  Once engaged the
defence needs to be carefully crafted.  There is always uncertainty when
a provision in the law has not been tested in the courts.

We also need to consider that NPG raised three areas of law: copyright,
database rights and contract.  If all of them are raised in a lawsuit
all need to be addressed.  Discussion so far has been limited to
copyright.  Contract raises the question of what distinguishes a
contract from terms of usage that must be sought on another page of the
site.  The database rights claim may be the difficult one to overcome,
though I note there that all the cited law is from regulations rather
than statutes.  Copyright is a child of statutes; mere regulations may
not expand these rights unless the statute provides clear authority to
do so.

Ec

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Re: About that "sue and be damned" to the National Portrait Gallery ...

Robert Rohde
In reply to this post by Geoffrey Plourde
On Fri, Jul 10, 2009 at 9:00 PM, Geoffrey Plourde<[hidden email]> wrote:
> Dcoetzee cannot comply, as the deletions would result in the loss of his admin bit.

Somehow I doubt they really want wiki-deletion anyway.

To "permanently delete from the hard drive of your computer (or any
computer upon which you or anyone from the Wikiemedia Foundation have
stored them) all images that you have derived from our client’s
website" would really require not just the admin bit, but rather
someone at the WMF going in and erasing the files directly so that
they can never be undeleted.

-Robert Rohde

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Re: About that "sue and be damned" to the National Portrait Gallery ...

Robert Rohde
In reply to this post by Ray Saintonge
On Fri, Jul 10, 2009 at 11:10 PM, Ray Saintonge<[hidden email]> wrote:

> Nathan wrote:
>> If Dcoetzee complies with the request made in the letter from the NPG, and
>> some other
>> user from the U.S. (having previously made copies of the images at issue)
>> uploads them
>> again, what recourse would the NPG have wrt its database rights and TOS
>> claims?
>>
>>
> Or better still if those alleged 3300 portraits were re-added by 330
> people contributing 10 each.

I don't think now is a good time to encourage such silliness.  Yes,
the case would be different if 300 people were involved from the very
beginning, but you aren't going to greatly alter the shape of things
by involving an extra 300 people in this way after the fact.

-Robert Rohde

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Re: About that "sue and be damned" to the National Portrait Gallery ...

David Gerard-2
In reply to this post by Thomas Dalton
2009/7/11 David Gerard <[hidden email]>:

> It gets better: the editor they sent the threat to is an American.
> So, to recap: A UK organisation is threatening an American with legal
> action over what is unambiguously, in established US law, not a
> copyright violation of any sort.
> I can't see this ending well for the NPG.


In fact, the more legal success they have with this approach (and they
do have a plausible cause in the UK, if they throw enough money at
arguing so), the more *utterly radioactive* the publicity for them
will be.

I’ll be calling the NPG first thing Monday (in my capacity as “just a
blogger on Wikimedia-related topics”) to establish just what they
think they’re doing here. Other WMF bloggers and, if interested,
journalists may wish to do the same, to establish what their
consistent response is.


- d.

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Re: About that "sue and be damned" to the National Portrait Gallery ...

Mike.lifeguard-2
In reply to this post by Nathan Awrich
NPG claims that Dcoetzee would be liable for the infringement resultant
from him posting the photos on Commons. So, the reuse is a copyvio and
reuse of that is a copyvio and reuse of that... So it's not clear that
even removing the images would do anything to protect him.

Furthermore (and in a bizarre distortion of anything reasonable), NPG
actually claims copyright on photos that individual visitors take. So,
copyright on PD works is only OK if they own it... now that's just
ridiculous. I'm not sure appeasing them is possible or even a good idea;
this seems totally irrational and vindictive and furthermore contrary to
their mission as a public institution.

-Mike

On Fri, 2009-07-10 at 22:32 -0400, Nathan wrote:

> If Dcoetzee complies with the request made in the letter from the NPG, and
> some other
> user from the U.S. (having previously made copies of the images at issue)
> uploads them
> again, what recourse would the NPG have wrt its database rights and TOS
> claims?
>
> Nathan
>
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Re: About that "sue and be damned" to the National Portrait Gallery ...

John at Darkstar
In reply to this post by David Gerard-2
I sent out a press release earlier today to newspapers in Norway. It was
sent to around 200 recipients. Perhaps others could do the same thing.

John

David Gerard wrote:

> 2009/7/11 David Gerard <[hidden email]>:
>
>> It gets better: the editor they sent the threat to is an American.
>> So, to recap: A UK organisation is threatening an American with legal
>> action over what is unambiguously, in established US law, not a
>> copyright violation of any sort.
>> I can't see this ending well for the NPG.
>
>
> In fact, the more legal success they have with this approach (and they
> do have a plausible cause in the UK, if they throw enough money at
> arguing so), the more *utterly radioactive* the publicity for them
> will be.
>
> I’ll be calling the NPG first thing Monday (in my capacity as “just a
> blogger on Wikimedia-related topics”) to establish just what they
> think they’re doing here. Other WMF bloggers and, if interested,
> journalists may wish to do the same, to establish what their
> consistent response is.
>
>
> - d.
>
> _______________________________________________
> foundation-l mailing list
> [hidden email]
> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l

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Re: About that "sue and be damned" to the National Portrait Gallery ...

Ray Saintonge
In reply to this post by Mike.lifeguard-2
Mike.lifeguard wrote:
> Furthermore (and in a bizarre distortion of anything reasonable), NPG
> actually claims copyright on photos that individual visitors take. So,
> copyright on PD works is only OK if they own it... now that's just
> ridiculous. I'm not sure appeasing them is possible or even a good idea;
> this seems totally irrational and vindictive and furthermore contrary to
> their mission as a public institution.
>  
That would indeed be ridiculous, but it's not part of their letter to
Coetze.  They know that he's in the U.S. and didn't just show up at the
NPG with his camera to take all those pictures.  The claim is that he
took them from their database.  "Irrational" and "vindictive" don't
apply when they are looking after what they perceive to be their
legitimate interests.  "Capitalist" would be a more appropriate epithet.

Ec

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Re: About that "sue and be damned" to the National Portrait Gallery ...

David Gerard-2
In reply to this post by John at Darkstar
On 11/07/2009, John at Darkstar <[hidden email]> wrote:

> I sent out a press release earlier today to newspapers in Norway. It was
> sent to around 200 recipients. Perhaps others could do the same thing.


Before doing this, it may be an idea to run prospective press releases
past Jay and Mike. ([hidden email] and [hidden email]).

John, if you could forward Jay and Mike a copy of your press release,
and possibly a translation into English, that would I think be of help
to them :-)


- d.

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Re: About that "sue and be damned" to the National Portrait Gallery ...

Thomas Dalton
In reply to this post by John at Darkstar
2009/7/11 John at Darkstar <[hidden email]>:
> I sent out a press release earlier today to newspapers in Norway. It was
> sent to around 200 recipients. Perhaps others could do the same thing.

Please, nobody else take unilateral action. You're not the one being
sued, it isn't your call.

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Re: About that "sue and be damned" to the National Portrait Gallery ...

John at Darkstar
In reply to this post by David Gerard-2
This is public and has been so since the first posting. The press
release was just a reference of whats going on at Wikimedia Commons, the
specific user page describing the case and this mailing list. It is sent
out through the mailing list for Wikimedia Norway and it is not a
statement on the behalf of Wikimedia Foundation or anybody else.

If someone feel they should not be quoted on what they write on this
mailing list they should probably not write it at all as this list is
public. This seems to be a real problem as people tend to believe that
they write something for me, myself and us two, while the rest of the
world infact can read it at will.

John

David Gerard wrote:

> On 11/07/2009, John at Darkstar <[hidden email]> wrote:
>
>> I sent out a press release earlier today to newspapers in Norway. It was
>> sent to around 200 recipients. Perhaps others could do the same thing.
>
>
> Before doing this, it may be an idea to run prospective press releases
> past Jay and Mike. ([hidden email] and [hidden email]).
>
> John, if you could forward Jay and Mike a copy of your press release,
> and possibly a translation into English, that would I think be of help
> to them :-)
>
>
> - d.
>
> _______________________________________________
> foundation-l mailing list
> [hidden email]
> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
>

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Re: About that "sue and be damned" to the National Portrait Gallery ...

John at Darkstar
In reply to this post by Thomas Dalton
This was public as soon as it got posted on Wikimedia Commons.
The press notice is on our Signpost.
http://no.wikipedia.org/wiki/Wikipedia:Tinget#Brukere_p.C3.A5_Wikimedia_Commons_i_tvist_med_National_Portrait_Gallery

John

Thomas Dalton wrote:

> 2009/7/11 John at Darkstar <[hidden email]>:
>> I sent out a press release earlier today to newspapers in Norway. It was
>> sent to around 200 recipients. Perhaps others could do the same thing.
>
> Please, nobody else take unilateral action. You're not the one being
> sued, it isn't your call.
>
> _______________________________________________
> foundation-l mailing list
> [hidden email]
> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
>

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Re: About that "sue and be damned" to the National Portrait Gallery ...

Geoffrey Plourde
In reply to this post by John at Darkstar
Lets finish up the press releases and drop this thread. NPG can read it too. Has a US press release been sent out?




________________________________
From: John at Darkstar <[hidden email]>
To: Wikimedia Foundation Mailing List <[hidden email]>
Sent: Saturday, July 11, 2009 10:12:14 AM
Subject: Re: [Foundation-l] About that "sue and be damned" to the National Portrait Gallery ...

This is public and has been so since the first posting. The press
release was just a reference of whats going on at Wikimedia Commons, the
specific user page describing the case and this mailing list. It is sent
out through the mailing list for Wikimedia Norway and it is not a
statement on the behalf of Wikimedia Foundation or anybody else.

If someone feel they should not be quoted on what they write on this
mailing list they should probably not write it at all as this list is
public. This seems to be a real problem as people tend to believe that
they write something for me, myself and us two, while the rest of the
world infact can read it at will.

John

David Gerard wrote:

> On 11/07/2009, John at Darkstar <[hidden email]> wrote:
>
>> I sent out a press release earlier today to newspapers in Norway. It was
>> sent to around 200 recipients. Perhaps others could do the same thing.
>
>
> Before doing this, it may be an idea to run prospective press releases
> past Jay and Mike. ([hidden email] and [hidden email]).
>
> John, if you could forward Jay and Mike a copy of your press release,
> and possibly a translation into English, that would I think be of help
> to them :-)
>
>
> - d.
>
> _______________________________________________
> foundation-l mailing list
> [hidden email]
> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
>

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Re: About that "sue and be damned" to the National Portrait Gallery ...

Thomas Dalton
In reply to this post by John at Darkstar
2009/7/11 John at Darkstar <[hidden email]>:
> This is public and has been so since the first posting. The press
> release was just a reference of whats going on at Wikimedia Commons, the
> specific user page describing the case and this mailing list. It is sent
> out through the mailing list for Wikimedia Norway and it is not a
> statement on the behalf of Wikimedia Foundation or anybody else.

Handling the press isn't a simple matter of giving them the facts, you
have to work out what it is you want from them first and you have no
idea what Derrick wants from the press.

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Re: About that "sue and be damned" to the National Portrait Gallery ...

Thomas Dalton
In reply to this post by Geoffrey Plourde
2009/7/11 Geoffrey Plourde <[hidden email]>:
> Lets finish up the press releases and drop this thread. NPG can read it too. Has a US press release been sent out?

I doubt it. The WMF handles US press releases and they aren't stupid
enough to talk to the press until they know what they're talking
about.

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Re: About that "sue and be damned" to the National Portrait Gallery ...

geni
In reply to this post by Thomas Dalton
2009/7/11 Thomas Dalton <[hidden email]>:
> 2009/7/11 John at Darkstar <[hidden email]>:
>> I sent out a press release earlier today to newspapers in Norway. It was
>> sent to around 200 recipients. Perhaps others could do the same thing.
>
> Please, nobody else take unilateral action. You're not the one being
> sued, it isn't your call.

Legally at the moment no one is being sued. Additionally none of the
actions being carried out would be in contempt of court even if there
was an ongoing case at this point.

--
geni

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Re: About that "sue and be damned" to the National Portrait Gallery ...

Thomas Dalton
2009/7/11 geni <[hidden email]>:

> 2009/7/11 Thomas Dalton <[hidden email]>:
>> 2009/7/11 John at Darkstar <[hidden email]>:
>>> I sent out a press release earlier today to newspapers in Norway. It was
>>> sent to around 200 recipients. Perhaps others could do the same thing.
>>
>> Please, nobody else take unilateral action. You're not the one being
>> sued, it isn't your call.
>
> Legally at the moment no one is being sued. Additionally none of the
> actions being carried out would be in contempt of court even if there
> was an ongoing case at this point.

I'm not talking about legalities, I'm talking about responsible
behaviour. The NPG may well be willing to reach a reasonable
settlement but they are less likely to do so if Wikimedians have been
speaking ill of them in the popular press. You don't know if Derrick
wants to fight this or not.

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Re: About that "sue and be damned" to the National Portrait Gallery ...

geni
2009/7/11 Thomas Dalton <[hidden email]>:

> 2009/7/11 geni <[hidden email]>:
>> 2009/7/11 Thomas Dalton <[hidden email]>:
>>> 2009/7/11 John at Darkstar <[hidden email]>:
>>>> I sent out a press release earlier today to newspapers in Norway. It was
>>>> sent to around 200 recipients. Perhaps others could do the same thing.
>>>
>>> Please, nobody else take unilateral action. You're not the one being
>>> sued, it isn't your call.
>>
>> Legally at the moment no one is being sued. Additionally none of the
>> actions being carried out would be in contempt of court even if there
>> was an ongoing case at this point.
>
> I'm not talking about legalities, I'm talking about responsible
> behaviour. The NPG may well be willing to reach a reasonable
> settlement but they are less likely to do so if Wikimedians have been
> speaking ill of them in the popular press. You don't know if Derrick
> wants to fight this or not.

The case is under English and welsh law. For solid legal reasons the
NPG will be willing to make a reasonable settlement.

Since we know that the NPG are not completely stupid and English law
in any case lacks statutory damages it would seem to be somewhat
improbable that any course of action we can take can make them insist
on an unreasonable settlement.

--
geni

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Re: About that "sue and be damned" to the National Portrait Gallery ...

Thomas Dalton
2009/7/11 geni <[hidden email]>:
> The case is under English and welsh law. For solid legal reasons the
> NPG will be willing to make a reasonable settlement.
>
> Since we know that the NPG are not completely stupid and English law
> in any case lacks statutory damages it would seem to be somewhat
> improbable that any course of action we can take can make them insist
> on an unreasonable settlement.

You can't know that and it's not your place to guess. Just stay out of
it unless Derrick asks for your help.

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Re: About that "sue and be damned" to the National Portrait Gallery ...

Rjd0060 -
Perhaps everybody should take that advice.  I find it mildly amusing that
suddenly we have a list full of legal experts.  Can we let those relevant
people do what the will now and stop speculating/guessing/etc. here and
elsewhere?

---
Rjd0060
[hidden email]


On Sat, Jul 11, 2009 at 2:49 PM, Thomas Dalton <[hidden email]>wrote:

> 2009/7/11 geni <[hidden email]>:
> > The case is under English and welsh law. For solid legal reasons the
> > NPG will be willing to make a reasonable settlement.
> >
> > Since we know that the NPG are not completely stupid and English law
> > in any case lacks statutory damages it would seem to be somewhat
> > improbable that any course of action we can take can make them insist
> > on an unreasonable settlement.
>
> You can't know that and it's not your place to guess. Just stay out of
> it unless Derrick asks for your help.
>
> _______________________________________________
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1234