The National Portrait Gallery in London is threatening to sue an American who downloaded high-resolution digital copies of paintings from their website and uploaded them to Wikipedia. The catch: all of the paintings have long been in the public domain. In the States, this would be a problem. American copyright law requires some “spark” of creativity on the part of the person claiming copyright. It’s not really hard to demonstrate such a spark, but a simple scan of a public domain painting certainly would not qualify. But under UK copyright law, the standard is “sweat of the brow”. The amount of labour and skill it takes to faithfully reproduce the paintings would be enough to grant copyright in a new work (the digital photos). So of course the NPG wish to sue in the UK, arguing that the NPG servers are based in the UK and that Wikipedia is targeted at British users too. (Disclaimer: jurisdiction is not my strongest point.) On the first argument, I think they’re wrong. The guy had every right to download the images from the UK servers and following that everything he did was done in the States (where the copyright is not recognized). You can’t sue somebody just because what they did in another country would have infringed on a right had they done it in your own. On the second, I kind of think they’re grasping. By that logic, they could sue the guy in any country they wanted. There’s a contractual argument as well, but it’s not detailed well in the demand letter. It appears to be based on an implied contract because there was a “License this image” link on the website.
There’s something annoying to me about government-funded organizations that archive public domain work acting to keep that work out of the public domain. I understand that they go to a lot of expense to scan these images, but isn’t the whole point of museums to share culture?
My latest IPilogue article What Jay Leno taught me about domain disputes should be up by now. It presented an interesting problem. Topics at IPilogue are assigned by email a few days in advance. We generally just get a link to a news article. But while the article I got on Jay Leno made it sound like a big deal, the case was actually the equivalent of a zoning dispute. There was nothing in it that hadn’t been said a thousand times before (the case was actually copy-and-pasted from an earlier case by the same panelist). Like I said, this presented me with a problem. I didn’t have time to get in touch with the editors and I didn’t have anything compelling to write about.
I solved (I think) this problem by noticing that everything had been said a thousand times before and yet I had never heard it before. There are five types of articles on domain dispute resolution: (1) celebrity gains control of HisOrHerName.com, (2) evil corporation steals Pokey.org from 12 year old kid, (3) case demonstrates that dispute resolution doesn’t work, (4) technological or social change means end to dispute resolution, (5) jokers keep control of obviously infringing website with wacky donkey argument. I did a lot of research for this article and this list is exhaustive. So I figured I could sneak in a little article on the criteria governing the process and though it might not be compelling, it might be useful.
I left out of the article a scenario that seems plausible to me but I cannot find any evidence of having occurred. What if a person registered a famous trademark and used it for a personal website? Let’s say, for a more concrete example, I registered CocaCola.com and put my blog up there. I’m not competing with Coke, but I’m getting some traffic that is meant for them. I am not sure what way that would go. There is an exception for valid commercial uses and where the domain is a nickname. But what if I just wanted to steal Coke’s traffic for my non-commercial site and had no other reason to use that domain?
Also, while writing this I got to think about an idea I had a while back (I think I posted it on IPilogue someplace). Someone should start a username registry:
- Trademark owners and celebrities register their desired usernames
- New social networks and websites reserve those names
- One in a thousand social networks becomes worth joining
- Trademark owners pay to the network a price based on size or some other metric for the reserved name
That way, when the next Twitter comes along, CNN can be sure that newtwitter.com/CNN is available. They’ll have to pay for the privilege, but they won’t be penalized for not being early adopters. It also means a little free money for the social network.
The word is starting to grow on me. I used to really dislike it. It sounded like something out of a Saturday morning cartoon. Mostly it (along with “cyberspace”) just encourages people to talk about the Internet as if it were a place. The Internet isn’t a place, it’s a bunch of computers and wires that talk to each other. The whole “cyberspace” metaphor is useful for quickly explaining something, but it doesn’t really represent what is going on in your computer.
My first IPilogue article was just published: What is Cybercrime? It’s mainly a comment on another article on the same subject which basically defines cybercrimes as crimes taking place in cyberspace and then concludes that none exist: all cybercrimes are just regular crimes adapted to work in cyberspace. The author does, in a later article, express a little embarrassment at the term but she does not acknowledge its unsuitability. I say rather that cybercrimes are just unique computer crimes. They’re crimes that weren’t possible without computers but they don’t require us to invent some kind of allegory to make them fit into our existing system of criminal laws.
As I’m sure you’re aware, in Mustapha v. Culligan of Canada the plaintiff had a mental breakdown after seeing a fly in bottle of water he had purchased from the defendant. The Supreme Court of Canada overturned a $341,000 judgement in favour of the plaintiff because the damage suffered by Mr. Mustapha was too remote. [Law students, particularly 1Ls, may want to just skip to the next paragraph] Liability for negligence requires that three things be proved: (1) the defendant breached the standard of care, (2) the defendant owed a duty to the particular plaintiff, (3) the injuries of the plaintiff were caused by the defendant’s negligent act. The SCC dealt with the first two issues quickly and moved onto causation. Remoteness provides a limit on causation in law; the defendant is only liable if the type of damage suffered was reasonably foreseeable. Even though the fly in the bottle did cause Mr. Mustapha’s breakdown, it was not “reasonably foreseeable that a person of ordinary fortitude would have suffered personal injury” and the defendant was not held liable for it in law.
The issue I have in mind is the use of the “ordinary person” in this case. The use of the ordinary person makes sense in one-on-one interaction. If I interact with a single person out of 800,000 in this city, the odds of that person being ordinary are quite high. If, however, you are in business and dealing with thousands of the 800,000 people in the city, the odds of running into more eccentric people go up—and if you’re in the bottled water business, the odds are probably even higher (cf. Mr. Monk Goes to Mexico). It would be almost an absolute certainty that one of Culligan’s customers would be a germaphobe likely to suffer extreme mental distress if they got a bottle of water with a fly (or other foreign object).
The ordinary crowd contains a certain percentage of germaphobes, people with nut allergies, vegetarians, and people keeping Kosher or Halal. Yet, the ordinary person is likely none of these. The bigger the group you interact with, the less valid the assumption of the ordinary person becomes. The ordinary person does not have a peanut allergy, but a company that negligently let peanuts get into a normally peanut-free chocolate bar would likely be held liable if it were eaten by someone who did. Perhaps the court might have determined that the extreme germaphobe is so rare that he simply is not foreseeable, but if the extreme germaphobe is merely uncommon then they ought to have foreseen the possibility of harm to someone.
I think people enjoy naming things. That’s why we create distinctions even when they don’t seem to serve a practical purpose; it gives us more things to name. Unilateral and bilateral contracts, for example.
But first, an extremely short bit on offer and acceptance. Pretty straightforward: someone makes an offer—that is they signal somehow that they would agree to some set of terms–and then somebody else accepts the offer–by signalling that they also agree to those same terms.
A bilateral contract is one in which these terms set out obligations for both parties. The parties agree and then each carries out his own side. In a unilateral contract, only one party has obligations. Now, we know—or, at least, as far as I know—you can’t make a one-sided contract. Both parties are supposed to get something. So such a contract is formed where the act of acceptance and the fulfilment of one party’s notional duties under the contract are the same act. The example Professor Benson seems to enjoy is this: A says to B “I will give you $10 if you mow my lawn.” B, in this case, would accept by mowing the lawn. At that point, A would be contractually obligated to pay B even though B was never contractually obligated to anything.
It seems to me that any offer that could give rise to a unilateral contract could quite easily be accepted and a bilateral contract created. Imagine that B had replied: “OK, I will mow your lawn for $10.” Would that not create a contract such that A could expect the mowing and B the $10? The important thing to take from this is that the phrases unilateral and bilateral contract have no meaning until the contract exists. The most you can say is that some contracts allow a method of acceptance that simultaneously fulfils the second party’s obligations. But what, from the post-contract perspective, is the difference between a unilateral contract and a bilateral contract in which one party fulfils their side first?
We haven’t covered consideration but the hints we have received about it give me hope that I will be able to further explain my discomfort once we do.
I just walked by my dad’s stereo and some talk radio guys were discussing a bill that the NDP are putting forward in Ontario to presume consent for organ donorship (odd, Firefox tells me that’s not a word).
The problem, apparently, is that too many people are getting hit by cars without signing their organ donor cards. I am of two minds on this. On the one mind, I think it’s kind of silly or selfish to try to keep your organs after you die. On the other, I dislike the idea of presuming consent to have something taken from you. I think that I would side with the NDP on this if there wasn’t a third option.
The problem is not so much that people are neglecting to become organ donors. It’s that being an organ donor means having to sign and carry and care for a flimsy little piece of paper for five years. Of all the cards that I have to take care of, the organ donor card is the least durable. Or was the least durable. I had to take it out of my wallet a year after I put it in there because it was so messed up.
The solution is, rather than give people a separate piece of paper with their driver’s license, make them declare their consent at the DMV when they renew their license. Then make note of the answer on their driver’s license. Very few people walk around without that.