[Foundation-l] About that "sue and be damned" to the NationalPortrait Gallery ...

[Gregory Maxwell]

On Sat, Jul 11, 2009 at 6:17 PM, Gregory Maxwell<gmaxwell at gmail.com> wrote:
> On Sat, Jul 11, 2009 at 5:49 PM, Tom Maaswinkel<tom.maaswinkel at 12wiki.eu> wrote:
> [snip]
>> They only thing that I don't understand is that they claim that no-one from
>> the wikimedia foundation ever responded to this. Is there any reason for
>> this?
>
> That isn't what they claimed.
>
> They claimed:
> "Our client contacted the Wikimedia Foundation in April 2009 to
> request that the images be removed but the Wikimedia Foundation has
> refused to do so […]"
>
> The initial complaint (OTRS #2009060110061897 for those with access)
> was made by a commercial partner (in the US) of the NPG, and was the
> typically legally uninformed nonsense that comes in often enough to
> have a boilerplate reply. They were given the standard "Wikimedia and
> it's servers are based in the US. Under US law such images are public
> domain per Bridgeman Art Library v. Corel Corp. Therefore no
> permission is
> required to use them." response.  Presumably the commercial vendor got
> the NPG to make the legal threat under UK law because we adequately
> expressed that there was clearly no copyright concern under US law.


For clarity sake I should point out that the neither the complaint to
Wikimedia, nor the response to the OTRS reply, included any offer of
compromise.

In the past these kinds of arrangements have been negotiated. But
escalating with legal force makes a sham of any good faith effort to
negotiate, sadly.

As a practical matter, and a matter of principle, we can't accept that
people can take exclusive ownership of the public domain simply by
performing a little dance. Nor can we accept that UK law can be
imposed on the Wikimedia Foundation or its US contributors, as under
UK law our projects could likely not exist for a even day.