Mailing List Archive

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 Gerard<dgerard@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.
>
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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.

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On Fri, Jul 10, 2009 at 5:05 PM, Thomas Dalton<thomas.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... ?


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george.herbert@gmail.com

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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.

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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"?

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On Fri, Jul 10, 2009 at 5:25 PM, Thomas Dalton<thomas.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.


--
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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.

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We're in contact with Derrick. We're looking at ways we may be able to help.

I think that since this case involves an individual (at least right now),
we'd probably do best not to game out strategy on it in a public mailing
list. So while discussing the general theory of copyright as it relates to
this case is fine, I don't think it's a good idea to talk about specific
responses here just yet.


--Mike
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On Fri, Jul 10, 2009 at 5:05 PM, Thomas Dalton<thomas.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

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On Sat, Jul 11, 2009 at 8:52 AM, Robert Rohde<rarohde@gmail.com> wrote:
> On Fri, Jul 10, 2009 at 5:05 PM, Thomas Dalton<thomas.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

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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.

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On Fri, Jul 10, 2009 at 9:44 PM, Thomas Dalton<thomas.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.

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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.

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On Sat, Jul 11, 2009 at 9:54 AM, Thomas Dalton<thomas.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

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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 Dalton<thomas.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.


--
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george.herbert@gmail.com

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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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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
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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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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

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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

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Andrew Lih wrote:
> On Sat, Jul 11, 2009 at 9:54 AM, Thomas Dalton<thomas.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

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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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On Fri, Jul 10, 2009 at 9:00 PM, Geoffrey Plourde<geo.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

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On Fri, Jul 10, 2009 at 11:10 PM, Ray Saintonge<saintonge@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

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