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 ...

Tristan Thomas-4
Seconded.

On 11/07/2009 19:52, Rjd0060 wrote:

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

Ray Saintonge
In reply to this post by John at Darkstar
John at Darkstar wrote:

> 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.
>
>  
The problem here seems with the term "press release", which suggests
some kind of official status.  There is nothing official about a mailing
list discussion, or even about the choice by the threatened individual
to make the lawyer's letter public.

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 Geoffrey Plourde
Geoffrey Plourde wrote:
> Lets finish up the press releases and drop this thread. NPG can read it too. Has a US press release been sent out?
>
>
>  
There's no problem with keeping this thread going, as long as we don't
pretend that there is anything official about the comments.  Keeping the
debate public serves the politics of the situation.  It keeps eyes on an
issue that's way off the radar for most people.

Ec

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

Thomas Dalton
2009/7/11 Ray Saintonge <[hidden email]>:
> Geoffrey Plourde wrote:
>> Lets finish up the press releases and drop this thread. NPG can read it too. Has a US press release been sent out?
>>
>>
>>
> There's no problem with keeping this thread going, as long as we don't
> pretend that there is anything official about the comments.  Keeping the
> debate public serves the politics of the situation.  It keeps eyes on an
> issue that's way off the radar for most people.

As long as we stick to abstract discussions of legal theory, I see no
problem with this thread. Anything else is of questionable wisdom. You
don't discuss legal strategy in public without thinking it through
very carefully and while none of us actually have a say in the legal
strategy it still isn't wise for us to publicly speculate.

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

Ray Saintonge
In reply to this post by Thomas Dalton
Thomas Dalton 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.
>
>  
He did choose to make the letter public.

Ec

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

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

> Thomas Dalton 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.
>>
>>
> He did choose to make the letter public.

How is that relevant?

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

Ray Saintonge
Thomas Dalton wrote:

> 2009/7/11 Ray Saintonge <[hidden email]>:
>  
>> Thomas Dalton 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.
>>>      
>> He did choose to make the letter public.
>>    
> How is that relevant?
If he didn't want public comments he would not have made the letter
public; he might have chosen more private WMF channels.

Ec

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

George William Herbert
In reply to this post by Thomas Dalton
For what it's worth - it's on slashdot now, so it presumably is about
to make its rounds through other press as well.


--
-george william herbert
[hidden email]

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

I think we can safely assume that the NPG it is not going to follow a
legal strategy that gives them a significant risk of facing millions
in legal bills. Due to the conventions of English law it is generally
unwise to overplay your hand when requesting damages.

As to staying out of it. As a private subject I'm pretty much free to
do whatever I like for the pretty obvious reason that if that was not
the case you would provide a great weapon for those wishing to cause
further problems for those threatened with lawsuits.


--
geni

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

Thomas Dalton
In reply to this post by Ray Saintonge
2009/7/11 Ray Saintonge <[hidden email]>:
> If he didn't want public comments he would not have made the letter
> public; he might have chosen more private WMF channels.

Do you know that he sought legal advice before publishing the letter?
If he didn't, then is may not have been an informed choice. If he's
made a strategic mistake by publishing the letter and not keeping
control of the PR then we shouldn't aggravate that unnecessarily.

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

Thomas Dalton
In reply to this post by geni
2009/7/11 geni <[hidden email]>:

> 2009/7/11 Thomas Dalton <[hidden email]>:
>> You can't know that and it's not your place to guess. Just stay out of
>> it unless Derrick asks for your help.
>
> I think we can safely assume that the NPG it is not going to follow a
> legal strategy that gives them a significant risk of facing millions
> in legal bills. Due to the conventions of English law it is generally
> unwise to overplay your hand when requesting damages.
>
> As to staying out of it. As a private subject I'm pretty much free to
> do whatever I like for the pretty obvious reason that if that was not
> the case you would provide a great weapon for those wishing to cause
> further problems for those threatened with lawsuits.

You are free to do a great many things, that doesn't mean it is a good
idea to actually do them.

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

Falcorian-2
Why are these images on Commons? According to [[Commons:Licensing]]:
"Wikimedia Commons accepts only media [...] that are in the public domain in
at least the United States and in the source country of the work."
Is it because they are potentially PD in the UK, but it's unclear?

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

Ray Saintonge
In reply to this post by Thomas Dalton
Thomas Dalton wrote:

> 2009/7/11 Ray Saintonge <[hidden email]>:
>  
>> If he didn't want public comments he would not have made the letter
>> public; he might have chosen more private WMF channels.
>>    
>
> Do you know that he sought legal advice before publishing the letter?
> If he didn't, then is may not have been an informed choice. If he's
> made a strategic mistake by publishing the letter and not keeping
> control of the PR then we shouldn't aggravate that unnecessarily.
>
>  
ROTFL. He published it; that's a fact.  It would be very rare indeed for
anyone to have sought legal advice before making online comments.  The
NPG site, like many others, has a link to its terms of service.  How
often does *anyone* who uses such sites ever get legal advice before
proceeding?   Some of these require you to agree that you understand the
terms; that's about like agreeing that pigs can fly.  Some ask you to
accept the jurisdiction of the courts in the site's home country; does
that really override inalienable rights in one's own country? Is the
legal profession in any position to provide valid legal advice at
reasonable cost to every situation that might be affected?

If in retrospect, publishing the letter is seen as a strategic mistake,
it can't be unpublished.  There are arguments available for it being a
strategic positive.

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 Falcorian-2
On Sat, Jul 11, 2009 at 12:57 PM,
Falcorian<[hidden email]> wrote:
> Why are these images on Commons? According to [[Commons:Licensing]]:
> "Wikimedia Commons accepts only media [...] that are in the public domain in
> at least the United States and in the source country of the work."
> Is it because they are potentially PD in the UK, but it's unclear?

See: http://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-Art_tag/Straw_Poll

Especially the introductory comments.  This has been handled as a special case.

-Robert Rohde

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

Gregory Maxwell
In reply to this post by Falcorian-2
On Sat, Jul 11, 2009 at 3:57 PM,
Falcorian<[hidden email]> wrote:
> Why are these images on Commons? According to [[Commons:Licensing]]:
> "Wikimedia Commons accepts only media [...] that are in the public domain in
> at least the United States and in the source country of the work."
> Is it because they are potentially PD in the UK, but it's unclear?

Wikimedia's long standing position is that if copying a public domain
work makes it copyrighted it would effectively eliminate the public
domain.

It's far from clear that the NPG's position will stand even under UK
law: The specific matter hasn't been tried, and the US court that
tried it also reached the same conclusion under UK law.


 http://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-Art_tag#Why_do_we_allow_the_.7B.7BPD-Art.7D.7D_tag_to_be_used_for_photographs_from_any_country.3F


Consider the incentive system that you create when you combine a
copyright system which is effectively perpetual through retroactive
extensions plus the ability to copyright any work in the public domain
by making a slavish reproduction:

New exciting viable business plans emerge, such as:

1) Obtain classic works of art and slavishly digitize them.
2) Destroy the works of art
3) Perpetual profit!

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

Gregory Maxwell
In reply to this post by Ray Saintonge
On Sat, Jul 11, 2009 at 4:03 PM, Ray Saintonge<[hidden email]> wrote:
[snip]
> If in retrospect, publishing the letter is seen as a strategic mistake,
> it can't be unpublished.  There are arguments available for it being a
> strategic positive.

One argument for it being a mistake is that the early disclosure has
diminished his supporters ability to shape the public debate.

There are some relevant pieces of information that would influence
people's opinions, things like that the NPG previously complaining
about low resolution photographs and photographs taken by the
uploaders. (I haven't gone and tried to find examples from the latter
from the NPG, but UK museums have routinely tried to assert copyright
over photographs taken by commons contributors).

The real interesting story here is that museums all over the over the
world believe that holding the physical good gives them unlimited
rights to regulate all uses of copies and even rights to regulate
discussions of those works, and that they are now beginning to partner
with commercial service providers seeking to monetize that control and
becoming litigious as a result. In the end the public's access to the
works shrinks, the public domain is eroded, and the lie is put to the
lofty claims of education, promotion, and preservation included in the
grant requests and mission statements of museums.

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

Thomas Dalton
In reply to this post by Ray Saintonge
2009/7/11 Ray Saintonge <[hidden email]>:

> ROTFL. He published it; that's a fact.  It would be very rare indeed for
> anyone to have sought legal advice before making online comments.  The
> NPG site, like many others, has a link to its terms of service.  How
> often does *anyone* who uses such sites ever get legal advice before
> proceeding?   Some of these require you to agree that you understand the
> terms; that's about like agreeing that pigs can fly.  Some ask you to
> accept the jurisdiction of the courts in the site's home country; does
> that really override inalienable rights in one's own country? Is the
> legal profession in any position to provide valid legal advice at
> reasonable cost to every situation that might be affected?
>
> If in retrospect, publishing the letter is seen as a strategic mistake,
> it can't be unpublished.  There are arguments available for it being a
> strategic positive.

This is not a laughing matter. It doesn't matter what the legal merits
are or what is a good strategy, the fact remains that you don't know
what you are talking about and it has nothing to do with you, so just
shut up.

Could we close this thread? It is proving entirely unproductive and
potentially harmful.

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

Ray Saintonge
2009/7/11 Ray Saintonge <[hidden email]>:
   

> >> If he didn't want public comments he would not have made the letter
> >> public; he might have chosen more private WMF channels.
> >>    
>  
Thomas Dalton replied:
> Do you know that he sought legal advice before publishing the letter?
> If he didn't, then is may not have been an informed choice. If he's
> made a strategic mistake by publishing the letter and not keeping
> control of the PR then we shouldn't aggravate that unnecessarily.



Thomas Dalton wrote:

> 2009/7/11 Ray Saintonge <[hidden email]>:
>  
>> ROTFL. He published it; that's a fact.  It would be very rare indeed for
>> anyone to have sought legal advice before making online comments.  The
>> NPG site, like many others, has a link to its terms of service.  How
>> often does *anyone* who uses such sites ever get legal advice before
>> proceeding?   Some of these require you to agree that you understand the
>> terms; that's about like agreeing that pigs can fly.  Some ask you to
>> accept the jurisdiction of the courts in the site's home country; does
>> that really override inalienable rights in one's own country? Is the
>> legal profession in any position to provide valid legal advice at
>> reasonable cost to every situation that might be affected?
>>
>> If in retrospect, publishing the letter is seen as a strategic mistake,
>> it can't be unpublished.  There are arguments available for it being a
>> strategic positive.
>>    
>
> This is not a laughing matter. It doesn't matter what the legal merits
> are or what is a good strategy, the fact remains that you don't know
> what you are talking about and it has nothing to do with you, so just
> shut up.
>
> Could we close this thread? It is proving entirely unproductive and
> potentially harmful.
>  
I've restored the comments that I was replying to since you deleted them
to wilfully mischaracterize my "ROTFL" as applying to the general issue
rather than your silly comments.

I've yet to see any evidence that you know what you are talking about.
Your opposition to any kind of free speech on this by making up stories
about potential harm prove this.  Just because your contributions are
entirely unproductive doesn't mean that this applies to what many others
are saying.  I may not agree with all of them, but I would not find that
sufficient reason to suppress them.

Ec

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

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

> I've restored the comments that I was replying to since you deleted them
> to wilfully mischaracterize my "ROTFL" as applying to the general issue
> rather than your silly comments.
>
> I've yet to see any evidence that you know what you are talking about.
> Your opposition to any kind of free speech on this by making up stories
> about potential harm prove this.  Just because your contributions are
> entirely unproductive doesn't mean that this applies to what many others
> are saying.  I may not agree with all of them, but I would not find that
> sufficient reason to suppress them.

Would I be right in assuming that you are American? You certainly have
that religious view of free speech that is typical of Americans...
This has nothing to do with suppression of free speech, it has to do
with being responsible about what you say. I am not a legal expert and
I have no spoken to Derrick about his wishes, which is why I am being
very careful about what I say and do. All I am asking is that other
people in the same position show the same restraint.

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

David Gerard-2
2009/7/11 Thomas Dalton <[hidden email]>:

> Would I be right in assuming that you are American? You certainly have
> that religious view of free speech that is typical of Americans...
> This has nothing to do with suppression of free speech, it has to do
> with being responsible about what you say. I am not a legal expert and
> I have no spoken to Derrick about his wishes, which is why I am being
> very careful about what I say and do. All I am asking is that other
> people in the same position show the same restraint.


The problem is that this is an issue that affects all of us, not just
Derrick - which is presumably (I haven't heard anything from him on
this issue other than the publication of the threat letter) why his
immediate response was to publish the letter.

(When I've gotten threat letters over the internet, my immediate
response has been to publish them in full, then publish the letter
upset that I published the first letter. I do realise not everyone is
like me, thankfully.)

This affects all of us, so is all of our business.

On one end, an encroachement on the public domain being enforced by a
threat letter from seriously expensive lawyers - that's flatly
unconscionable and unacceptable to many.

On the other, people who are presently working with museums to get
them to release their collections under a suitable free content
licence by the "ask nicely" method - GLAM-WIKI is real soon, for
example. This fouls up their work too - the hordes of pissed-off
pitchfork-wielding nerds make a lot of unehlpful noise, and also the
NPG setting a pathological example to other museums (meaning a bad
outcome for the NPG may be *required* to demonstrate this is a bad
idea). Both make this letter from the NPG *really badly timed*. But
then, we didn't set the timing.

(I wonder if they realised sending the letter on a Friday would give
everyone the whole weekend to get pissed off and work out our next
step.)

So yeah, messing things up for Derrick would be bad. But a discussion
is on-topic and *important*, because this matter affects everyone
here.


- d.

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