Mailing List Archive

2009/7/11 Ray Saintonge <saintonge@telus.net>:
> 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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2009/7/11 geni <geniice@gmail.com>:
> 2009/7/11 Thomas Dalton <thomas.dalton@gmail.com>:
>> 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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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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Thomas Dalton wrote:
> 2009/7/11 Ray Saintonge <saintonge@telus.net>:
>
>> 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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On Sat, Jul 11, 2009 at 12:57 PM,
Falcorian<alex.public.account+WikimediaMailingList@gmail.com> 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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On Sat, Jul 11, 2009 at 3:57 PM,
Falcorian<alex.public.account+WikimediaMailingList@gmail.com> 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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On Sat, Jul 11, 2009 at 4:03 PM, Ray Saintonge<saintonge@telus.net> 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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2009/7/11 Ray Saintonge <saintonge@telus.net>:
> 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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2009/7/11 Ray Saintonge <saintonge@telus.net>:


> >> 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 <saintonge@telus.net>:
>
>> 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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2009/7/11 Ray Saintonge <saintonge@telus.net>:
> 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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2009/7/11 Thomas Dalton <thomas.dalton@gmail.com>:

> 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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2009/7/11 Thomas Dalton <thomas.dalton@gmail.com>:

> Would I be right in assuming that you are American? You certainly have


Oh, and Ray is Canadian ;-p

(I had people in the Slashdot thread assuming I was American despite
the davidgerard.co.uk domain ...)


- d.

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2009/7/11 David Gerard <dgerard@gmail.com>:
> 2009/7/11 Thomas Dalton <thomas.dalton@gmail.com>:
>
>> Would I be right in assuming that you are American? You certainly have
>
>
> Oh, and Ray is Canadian ;-p

He should know better, then.

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2009/7/11 David Gerard <dgerard@gmail.com>:
> 2009/7/11 Thomas Dalton <thomas.dalton@gmail.com>:
>
>> 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.

It affects our hobby, it affects his life. I think he interests take precedence.

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Gregory Maxwell wrote:
> On Sat, Jul 11, 2009 at 4:03 PM, Ray Saintonge<saintonge@telus.net> 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.
>

Yes and no. Shaping public debate implies a certain degree of control
over this shape. That does have a dark side if there is no prior
understanding about where that public debate should be going. Wide
publicity may help fundraising for legal costs if things ever get that far.
> 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).
>

If they were previously complaining about low res photos, but are now
offering them as some kind of offer in compromise, there is room there
for positive movement. Others might see this as a sign of weakness in
their position. It's up to WMF to accept or not. The question then
becomes whether there is more to be gained from a satisfactory median
resolution, or an all out victory that opens up the possibility of a loss.
> 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.
Agreed, and it goes beyond just museums. Film makers, record producers,
newspapers ... all are finding the economic models that sustained them
before the internet age are collapsing. Kuhn said that a paradigm shift
would have victims. If NPG wins it case that situation won't be changed
by such a blip. We can probably agree that museums and other cultural
institutions are valuable assets to a society, and we can probably agree
that there are costs connected with maintaining those assets. It's also
evident that the informational value of each artifact is unique, and the
artifact is not multiplied to accommodate growing demand. Accepting low
resolution images may be a stepping stone to greater co-operation in the
future. Beyond that it becomes a need for cultural institutions to
recognize that they need the volunteer sector or risk pricing themselves
out of the market trying to meet the increasingly sophisticated demands
of the online communities. They will still need funding, but that
funding is not without limits. The funders live in a real world where
there are many other funding demands.

Ec

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Thomas Dalton wrote:
> 2009/7/11 Ray Saintonge <saintonge@telus.net>:
>
>> 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.
I'm Canadian, which means that I am familiar with the American
propaganda on some of these matters, though I can be equally critical of
Americans in other areas, or, in the sense of [[John Ralston Saul]], I
have learned to live with such complexities that are a part of the
Canadian collective unconscious. Under the circumstances your
misperception is understandable and forgivable.

I have no complaint about your caution and restraint; I support that.
There is ample reason to support the notion that Derrick's publication
of that letter was unwise, but too, there are positive elements to that
publication in that it opens up the conversation in much larger terms.
The underlying issues inherent in NPG's attitudes have wider
implications. It is unfortunate that they often cannot be resolved
outside of a specific legal case against a specific individual. Nothing
that you, I, other list members or the denizens of Slashdot can say will
have a direct effect on NPG v. Derrick if that ever becomes a real legal
case. Both sides will probably be advised by their own counsels to make
no further public statements. Those in a position to speak on behalf of
WMF are also wise to severely limit their comments.

Before answering this I responded to comments by Gregory Maxwell, and
the topics raised in that exchange by both sides.are probably the most
constructive direction that this thread could take.

Ec

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Gregory Maxwell wrote:
> 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!
>
Come now, let's not exaggerate. The profit would not be perpetual. You'd
have to take additional steps to pull that off. In about 95 years
(depending on the applicable copyright term), you'd need to slavishly
copy the works of art a second time, into whatever the universal format
of choice ends up being by then, and destroy the original copy lest it
fall into the public domain. Also, ensure that all licenses to use that
first copy expire at this time and require destruction of all
outstanding versions. Then you can have everybody re-up for another round.

--Michael Snow


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On Sun, Jul 12, 2009 at 1:54 AM, Michael Snow<wikipedia@verizon.net> wrote:
> Gregory Maxwell wrote:
>> 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!
>>
> Come now, let's not exaggerate. The profit would not be perpetual. You'd
> have to take additional steps to pull that off. In about 95 years
> (depending on the applicable copyright term), you'd need to slavishly
> copy the works of art a second time, into whatever the universal format
> of choice ends up being by then, and destroy the original copy lest it
> fall into the public domain. Also, ensure that all licenses to use that
> first copy expire at this time and require destruction of all
> outstanding versions. Then you can have everybody re-up for another round.

Well, thats what DRMed file formats are for.

But I always figured that that was the backup plan while retroactive
copyright extension was the principle tool here (for example, the EU
just recently retroactively extended copyright on music from 50 to 95
years; the US has done something like 3 retroactive extensions in the
past).

Another useful tool in this plan 'hosted content'— provide some flash
based viewer and no one ends up with a local copy. These are backed
up by anti-circumvention laws (fortunately the US law is gracious
enough to not apply to protections applied on non-copyrighted works).

There are also database rights. You may not own the works, but if you
can assert control over aggregates it is unlikely that copies will be
made that people in the future will be able to find.

But even without DRMed files, hosted content, and database laws the
regular pace of technology may well make the old digital copies
inaccessible: I have storage media (10MB bernoulli box!) and files
from the 80s that I can no longer read— so I can only imagine what a
hundred years will bring. Not to mention social upheaval and simple
errors causing the loss of data.

It's also the case that if organizations come to depend on this income
that they'll have an easy time of preserving it in the future, which
is really the whole reason that retroactive copyright extensions
happen. Offsetting the cost of digitization is completely reasonable,
but selling away our descendants rights is not a fair payment.

Copyright is a form of continual income, it doesn't stop when the cost
of labor is defrayed. Fortunately the US doesn't allow you to
'capture' public domain works quite so easily, and yet there is no
evidence for a lack of digitization here, so at least we have proof
that it's not necessary for us to abandon the public domain in order
to have digital copies.

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