... the National Portrait Gallery appear to be sending legal threats to individual uploaders, after the Foundation ignored their claims as utterly, utterly specious.
http://commons.wikimedia.org/wiki/User:Dcoetzee/NPG_legal_threat
The editor in question is US-based.
So. What is WMF's response to this odious attempt to enclose the commons?
- d.
I have, at least, indeffed the user account on en.wp used to send this, and told them to follow up with Mike Godwin rather than onwiki.
On Fri, Jul 10, 2009 at 4:36 PM, David Gerarddgerard@gmail.com wrote:
... the National Portrait Gallery appear to be sending legal threats to individual uploaders, after the Foundation ignored their claims as utterly, utterly specious.
http://commons.wikimedia.org/wiki/User:Dcoetzee/NPG_legal_threat
The editor in question is US-based.
So. What is WMF's response to this odious attempt to enclose the commons?
- d.
foundation-l mailing list foundation-l@lists.wikimedia.org Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
2009/7/11 David Gerard dgerard@gmail.com:
... the National Portrait Gallery appear to be sending legal threats to individual uploaders, after the Foundation ignored their claims as utterly, utterly specious.
http://commons.wikimedia.org/wiki/User:Dcoetzee/NPG_legal_threat
The editor in question is US-based.
So. What is WMF's response to this odious attempt to enclose the commons?
I don't know if the WMF can/will do much. When we've discussed this situation hypothetically in the past the consensus was that we would all rally round and pay for the appropriate legal representation required (I hereby pledge £10). Wikimedia UK may also be able to help, I don't know (we don't yet have a lawyer, but for something this specific we can find one). I don't know if WMUK wants to get involved with this sort of thing but if it does it could be a useful vehicle for collecting the funds. I have cross-posted this to the UK list.
I imagine the user in question has no choice but the fight the case, since he doesn't have the power to fix the alleged infringement (the commons community may decide to remove them, but our community tends to be of the opinion that we shouldn't bow down to such legal threats, especially under non-US law). I don't know as much about UK copyright law as perhaps I should, given my choice of hobby and my location, but I would be surprised if there was enough creativity or work involved in taking a photograph of a painting for it to be independently copyrightable.
On Fri, Jul 10, 2009 at 5:05 PM, Thomas Daltonthomas.dalton@gmail.com wrote:
2009/7/11 David Gerard dgerard@gmail.com:
... the National Portrait Gallery appear to be sending legal threats to individual uploaders, after the Foundation ignored their claims as utterly, utterly specious.
http://commons.wikimedia.org/wiki/User:Dcoetzee/NPG_legal_threat
The editor in question is US-based.
So. What is WMF's response to this odious attempt to enclose the commons?
I don't know if the WMF can/will do much. When we've discussed this situation hypothetically in the past the consensus was that we would all rally round and pay for the appropriate legal representation required (I hereby pledge £10). Wikimedia UK may also be able to help, I don't know (we don't yet have a lawyer, but for something this specific we can find one). I don't know if WMUK wants to get involved with this sort of thing but if it does it could be a useful vehicle for collecting the funds. I have cross-posted this to the UK list.
I imagine the user in question has no choice but the fight the case, since he doesn't have the power to fix the alleged infringement (the commons community may decide to remove them, but our community tends to be of the opinion that we shouldn't bow down to such legal threats, especially under non-US law). I don't know as much about UK copyright law as perhaps I should, given my choice of hobby and my location, but I would be surprised if there was enough creativity or work involved in taking a photograph of a painting for it to be independently copyrightable.
Technically, the user could just ignore this - a lawsuit in a UK court without relevant jurisdiction, under US law as applies, can be ignored. A default judgement against him might be entered, however, and that might make future travel to Europe difficult.
One might suggest attempting to get criminal charges for barratry brought in the users' home jurisdiction in the US, but that is probably a stretch.
I hope someone's made sure Mike is aware... ?
2009/7/11 George Herbert george.herbert@gmail.com:
Technically, the user could just ignore this - a lawsuit in a UK court without relevant jurisdiction, under US law as applies, can be ignored. A default judgement against him might be entered, however, and that might make future travel to Europe difficult.
Would they stop you at the airport to enforce a civil judgement? Criminal, certainly, but I'm not sure about civil.
One might suggest attempting to get criminal charges for barratry brought in the users' home jurisdiction in the US, but that is probably a stretch.
They have only threatened to sue him once and the case isn't entirely without merit (I don't think the matter has ever actually been determined in UK case law), so I don't see that going anywhere.
I hope someone's made sure Mike is aware... ?
I will.
On Fri, Jul 10, 2009 at 5:25 PM, Thomas Daltonthomas.dalton@gmail.com wrote:
2009/7/11 George Herbert george.herbert@gmail.com:
Technically, the user could just ignore this - a lawsuit in a UK court without relevant jurisdiction, under US law as applies, can be ignored. A default judgement against him might be entered, however, and that might make future travel to Europe difficult.
Would they stop you at the airport to enforce a civil judgement? Criminal, certainly, but I'm not sure about civil.
There has been significant discussion about this, relative to UK libel / slander claims / lawsuits against US authors or speakers. I don't know of anyone who was stopped, but some UK courts have asserted that they could and would if the defendant didn't show up.
First, I doubt that the FBI would investigate a barratry complaint (Counselors, does such a provision exist in the US Code?) If they did, the courts would be reluctant to actually hear such a case because the person being prosecuted would actually have to be present to answer to the charges. I highly suspect that the UK would snicker at any such extradition request.
Second, IANAL but have never heard of someone being stopped for civil judgments at the airport. If they attempt to file a criminal case for copyright infringement, you would have a problem.
________________________________ From: George Herbert george.herbert@gmail.com To: Wikimedia Foundation Mailing List foundation-l@lists.wikimedia.org Sent: Friday, July 10, 2009 5:29:03 PM Subject: Re: [Foundation-l] About that "sue and be damned" to the National Portrait Gallery ...
On Fri, Jul 10, 2009 at 5:25 PM, Thomas Daltonthomas.dalton@gmail.com wrote:
2009/7/11 George Herbert george.herbert@gmail.com:
Technically, the user could just ignore this - a lawsuit in a UK court without relevant jurisdiction, under US law as applies, can be ignored. A default judgement against him might be entered, however, and that might make future travel to Europe difficult.
Would they stop you at the airport to enforce a civil judgement? Criminal, certainly, but I'm not sure about civil.
There has been significant discussion about this, relative to UK libel / slander claims / lawsuits against US authors or speakers. I don't know of anyone who was stopped, but some UK courts have asserted that they could and would if the defendant didn't show up.
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
Dcoetzee cannot comply, as the deletions would result in the loss of his admin bit.
________________________________ From: Nathan nawrich@gmail.com To: Wikimedia Foundation Mailing List foundation-l@lists.wikimedia.org Sent: Friday, July 10, 2009 7:32:39 PM Subject: Re: [Foundation-l] About that "sue and be damned" to the National Portrait Gallery ...
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 _______________________________________________ foundation-l mailing list foundation-l@lists.wikimedia.org Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
On Fri, Jul 10, 2009 at 9:00 PM, Geoffrey Plourdegeo.plrd@yahoo.com 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
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.
Ec
On Fri, Jul 10, 2009 at 11:10 PM, Ray Saintongesaintonge@telus.net 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
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
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
On 11/07/2009, George Herbert george.herbert@gmail.com wrote:
Technically, the user could just ignore this - a lawsuit in a UK court without relevant jurisdiction, under US law as applies, can be ignored. A default judgement against him might be entered, however, and that might make future travel to Europe difficult.
Note that the most recent attempts by the UK legal system to extend their reach to actions in the US (libel judgements) is resulting in new US law specifically disallowing such things.
I hadn't realised at the time of my original post that the editor in question was American.
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.
o_0
I hope someone's made sure Mike is aware... ?
I posted to the comcom list, cc Mike. The Wikimedia twittersphere is going fucking batshit about this (unsurprisingly), it may have legs. No-one at the NPG who could deal with this will be in until Monday (it's 1:30am here); I wonder if they'll be surprised at the orderly queue of people at their door with pitchforks and torches.
I scribbled a blog post to try to make stuff clearer: http://davidgerard.co.uk/notes/2009/07/11/sue-and-be-damned/
- d.
On Fri, Jul 10, 2009 at 5:05 PM, Thomas Daltonthomas.dalton@gmail.com wrote: <snip>
I don't know as much about UK copyright law as perhaps I should, given my choice of hobby and my location, but I would be surprised if there was enough creativity or work involved in taking a photograph of a painting for it to be independently copyrightable.
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.
-Robert Rohde
On Sat, Jul 11, 2009 at 8:52 AM, Robert Rohderarohde@gmail.com wrote:
On Fri, Jul 10, 2009 at 5:05 PM, Thomas Daltonthomas.dalton@gmail.com wrote:
<snip>
I don't know as much about UK copyright law as perhaps I should, given my choice of hobby and my location, but I would be surprised if there was enough creativity or work involved in taking a photograph of a painting for it to be independently copyrightable.
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.
Yes, and the letter from NPG seems to assert that:
"...we can confirm that every one of the images that you have copied is the product of a painstaking exercise on the part of the photographer that created the image in which significant time, skill, effort and artistry have been employed and that there can therefore be no doubt that under UK law all of those images are copyright works under s.1(1)(a) of the CDPA"
This is where in the US, Bridgeman v Corel established that a "slavish" reproduction of a PD work does not constitute a new work that can be protected by copyright.
-Andrew
2009/7/11 Andrew Lih andrew.lih@gmail.com:
Yes, and the letter from NPG seems to assert that:
"...we can confirm that every one of the images that you have copied is the product of a painstaking exercise on the part of the photographer that created the image in which significant time, skill, effort and artistry have been employed and that there can therefore be no doubt that under UK law all of those images are copyright works under s.1(1)(a) of the CDPA"
This is where in the US, Bridgeman v Corel established that a "slavish" reproduction of a PD work does not constitute a new work that can be protected by copyright.
We know that isn't the case under UK law, the question is whether the photographs involved substantial investment of resources.
On Fri, Jul 10, 2009 at 9:44 PM, Thomas Daltonthomas.dalton@gmail.com wrote:
2009/7/11 Andrew Lih andrew.lih@gmail.com:
Yes, and the letter from NPG seems to assert that:
"...we can confirm that every one of the images that you have copied is the product of a painstaking exercise on the part of the photographer that created the image in which significant time, skill, effort and artistry have been employed and that there can therefore be no doubt that under UK law all of those images are copyright works under s.1(1)(a) of the CDPA"
This is where in the US, Bridgeman v Corel established that a "slavish" reproduction of a PD work does not constitute a new work that can be protected by copyright.
We know that isn't the case under UK law, the question is whether the photographs involved substantial investment of resources.
No we don't. The specific matter at hand has never been in front of a court. It's just not clear cut, but it wasn't in the US prior to bridgeman either.
Moreover, Bridgman was also decided the same way under UK law by the US court. While this isn't binding, and may be bunk it does say that someone of nontrivial (although foreign) legal expertise studied the issue carefully and reached a differing opinion.
2009/7/11 Gregory Maxwell gmaxwell@gmail.com:
This is where in the US, Bridgeman v Corel established that a "slavish" reproduction of a PD work does not constitute a new work that can be protected by copyright.
We know that isn't the case under UK law, the question is whether the photographs involved substantial investment of resources.
No we don't. The specific matter at hand has never been in front of a court. It's just not clear cut, but it wasn't in the US prior to bridgeman either.
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.
On Sat, Jul 11, 2009 at 9:54 AM, Thomas Daltonthomas.dalton@gmail.com wrote:
2009/7/11 Gregory Maxwell gmaxwell@gmail.com:
This is where in the US, Bridgeman v Corel established that a "slavish" reproduction of a PD work does not constitute a new work that can be protected by copyright.
We know that isn't the case under UK law, the question is whether the photographs involved substantial investment of resources.
No we don't. The specific matter at hand has never been in front of a court. It's just not clear cut, but it wasn't in the US prior to bridgeman either.
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.
-Andrew
Andrew Lih wrote:
On Sat, Jul 11, 2009 at 9:54 AM, Thomas Daltonthomas.dalton@gmail.com 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
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
Thomas Dalton wrote:
Wikimedia UK may also be able to help, I don't know (we don't yet have a lawyer, but for something this specific we can find one). I don't know if WMUK wants to get involved with this sort of thing but if it does it could be a useful vehicle for collecting the funds.
I think it would be tactically unsound for WMUK to involve itself in this unless directly asked by the WMF. By doing so it would make itself an unnecessary target.
Ec
The UK Intellectual Property Office (http://www.ipo.gov.uk) says:
"A work can only be original if it is the result of independent creative effort. It will not be original if it has been copied from something that already exists. If it is similar to something that already exists but there has been no copying from the existing work either directly or indirectly, then it may be original.
The term "original" also involves a test of substantiality - literary, dramatic, musical and artistic works will not be original if there has not been sufficient skill and labour expended in their creation. But, sometimes significant investment of resources without significant intellectual input can still count as sufficient skill and labour."
That's the relevant bit of law. Is the intellectual input and investment of resources involved in taking such a photograph "substantial"?
Thomas Dalton wrote:
The UK Intellectual Property Office (http://www.ipo.gov.uk) says:
...
That's the relevant bit of law. Is the intellectual input and investment of resources involved in taking such a photograph "substantial"?
Anyone who's been around here for any amount of time is familiar with the substantive arguments, but until an actual suit is filed they have yet to present the substance of their case. In the absence of such a presentation we are only speculating about what they might do.
It is a big advantage for a putative defendant to let the plaintiff do all the work, and then poke at an overlooked weak spot in the attack.
Ec
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