The bureaucracy and corruption is stifling, but I give Filipinos credit for some progressiveness.
Specifically, they had two bloodless revolutions (EDSA I and II, ousting Marcos and Estrada, respectively). Manila is catching up with India as a location for call centers (kahit sino diyan alam mag English/everyone there knows English). There is a wind farm in northern Luzon, where a coconut biofuel plantation is going in, too.
PS. Mr. Ricardo Gonzalez, post here if there's anything stateside people can do that would be helpful.
If someone sends me a threatening letter, I should be able to make the threat public in order to get help for myself. That's just common sense.
You still can. This ruling only states that if such a letter is posted anonymously, there enough teeth in copyright law to require disclosure of the poster's identity. If there is a proper lawsuit subsequently filed, you are still entitled to a "fair use" defense, as well as a "free speech" defense, and whatever else.
The underlying concern is that someone can sue you for posting a cease-and-desist letter, not that they will necessarily win.
But you can be sued for anything at any time, as there are virtually no checks against baseless lawsuits.
I was sued for defamation when I blogged that a photo published by a corporation belonged to me, and they used it without permission.
In their lawsuit, they said it was really taken by "Michael Zubitskiy". Well, there is no such person.
I was sued in Oct. of 2005, had a federal trial in Nov. 2007 (represented myself), and
I'm currently waiting for the judge's verdict (it was a bench trial). In 2 years and 4 months, the courts have still not
ruled that this non-existent person doesn't exist (there has never been any evidence he's real). They added claims
against me for trademark infringement and unjust enrichment (I won on summary judgment).
They further claimed allowing visitors to post critical comments on my website was "tortuous interference
with prospective contractual relations", and despite the DMCA safe harbor this claim went to trial. I'm waiting for
the court's ruling and while I assume I'll prevail the fact remains you can be sued for anything.
This is the system we have, and if you have the guts to exercise your rights in a meaningful way
against others with more power than you, they may misuse the legal system to retaliate against you. This is not new,
but we are seeing more if it as the internet has empowered people to exercise their free speech rights in meaningful ways.
On one level, this increase in abusive (SLAPP) lawsuits shows people are finding their voice.
AGREED. If it's really my job to be paranoid, I can do that: I'll never give anyone a check (so now it's a savings account) and I'll never give out my credit card number or let anyone swipe it (so now it's a paperweight).
That's not the idea of our financial system, there is a balance, and the crisis is not with millions of people are posting their credit card numbers online -- it's with reckless credit. Blaming consumers is so absurd, and I find it hard to understand why so many people, people who are NOT careless with their personal financial information, buy into the idea that if someone else commits fraud, they are responsible.
Exactly -- the British bank was the victim, as was the Texas payday loan company who gave out $500 to a man "using the [LifeLock] CEO's widely publicized SSN". I don't see how the person who's identity was used is affected by this.
My Grandmother has excellent credit, no debt, is 94 and lives in a retirement home. She can no longer legally make decisions for herself, so she couldn't sign a contract if she wanted to (her money is not under her control). If I post all her vital financial and personal information, and other people fraudulently obtain credit with it, my Grandmother would not be victimized whatsoever -- only the merchants (incorrectly) extending credit would be. Their only recourse would be against the people who defrauded them, as it should be.
Isn't that the way is should be? The merchant who stands to profit by extending credit is the one who bears the cost if they take a bad risk? Third parties don't have any responsibility, other than to say "Nope, I never bought that/authorized it".
On a footnote, I think publicity (rather than anonymity) helps here -- if there is lots of verifiable information about the "real" you in the public domain, it's easier for others to spot an imposter.
When I was about 14, the Minneapolis City Pages did a story on him. The story said he was listed as "Zxzyx" in the Minneapolis phone book (so that he was guaranteed the last spot) and anyone could call him anytime. I looked in the phone book, and the listing was there, and I called. I was impressed that he had the guts to live completely out in the open (and it worked for him, too).
A subpoena for an IP trace ("tell me who owned this internet access account on this date") is not normally a burden.
If the subpoena instead requested the school "identify who was using this computer at this time", the school's response fits.
The subpoena requires the school investigate, not just disgorge a few records.
Maybe all the students in the dorm could each claim they were the guilty party? ("I'm Sparticus!")
I am defending myself (also pro se) against similar claims over my own gripe website/blog.
My litigation has gone on two years+ now. The other side dropped their defamation claim, and
I won summary judgment on their claims of trademark infringement and unjust enrichment. They have
three remaining claims -- appropriation of name and likeness, deceptive trade practices,
and interference with contractual relations (they don't want me to use the name and photo
of the guy who sued me, and they to hold me liable for comments visitors to my site posted)
The whole thing started when I saw a photo from my website in a
full-page phone book ad. The company sued me for defamation when I wrote about their unauthorized use
of my image. I have three copyright claims against them. The trial should take 2-3 days. Details are here:
Gregerson v. Vilana Financial, Inc.
...photographing kids and giving away their photo's on the interwebs isn't legal.
This is a first amendment issue.
A google image search for "kids" returns 67,400,000 results.
Can you give an example of the law which makes this illegal?
I'm sure there are not model releases for each photo. Should Google pull all those "illegal"
images from their search results?
I've photographed kids and put their photos on the web, as have about a million other people.
Publishing on the web is a limited "giving away", but it does not mean I'm entering a contract to
license the photo for all conveivable use to anyone who swipes it.
Food for thought:
I took a photo of a toddler living on the streets of Manila, who may not have even had any parents
that could sign a release. That photo was used by a charity in Malaysia for a fundraising ad
(I was not paid). Which country's laws were broken? Which law? What kind of model release is needed?
More importantly, who was harmed?
A boy I photographed in the Philippines was killed. I was able to provide his grieving Mother with
a dozen photographs of him, I believe the only ones she has (one was placed on his hearse during the
procession to the cemetery). No, I did not have advanced permission to take those photos of Reynaldo.
Nobody was harmed, but instead the photos were a priceless treasure.
When a child is missing, if the most recent photo of them was not taken by the parents, but by
someone else and it was taken without a release, would you put the photo on TV, find the child, and then
sue the person who took the photo because they didn't get a release?
In the US, most laws related to model releases are case law, there is unfortunately no legislation that outlines
when a release is needed and what it should say. A model release valid in California may not work in New York,
much less Australia. Even then, certain uses (such as "sensitive subjects") require a different model release.
It's way too complicated to just say "all web publication of photos of children is illegal".
If you respect other people's first amendment rights, you will start out assuming people have a right
to publish/speak, and then very narrowly carve out limited exceptions where there is clear law. If you want
your image to remain private, the Restatement of Torts (Second) says it's NOT private:
"...No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation." --Restatement (Second) of Torts Section 652C, comment d (1977)
for not acquiring a model release before putting his image out for commercial use.
NO, it's NOT the photographer's fault (writes a photographer).
Commercial use includes EDITORIAL use, such as articles, textbooks, etc. which
requires no model release. You are actually talking about only one form of commercial use,
advertising use, in which case the PUBLISHER, not the photographer, needs a model release (the photographer is usually the one
who obtains a release, but it's for the benefit of anyone who publishes the photo in an ad).
A release helps the publisher prevail if a lawsuit for appropriation of likeness is brought (violation of a person's right of publicity).
There is a pervasive belief in the myth that:
All "commercial" use is advertising use and requires a model release. Most commercial use of photos is actually editorial, and no
model release is required (non-commercial use refers to personal use such as making a copy for yourself).
A photographer is liable for what other people do with his photos.
A release means you won't be sued (no, it only means you are more likely to win a lawsuit; anyone can sue for anything,
unfortunately).
If you publish a photo, YOU are liable, not the photographer or whoever gave you the photo.
As an example, a person may sell you a photo he didn't take, you publish it, and the true photographer
then sues YOU, the publisher, for copyright infringement.
Real life example: I am suing a corporation for copyright infringement right now, after they
published a photo of mine in their photo book ad (without my knowledge or consent). They claim a
photographer named "Michael Zubitskiy", who they got the photos from, is liable, and they
produced a signed and notarized sales agreement with him. The court ruled that they, the publisher,
have strict liability, nobody else. Under the logic that the photographer is to blame, and I had to sue Michael Zubitskiy,
I would have a problem -- Zubitskiy is a fictional person the corporation made up
(see if you can find him, I've offered a reward). No, my claim is against the publisher (as the court has ruled).
If a person was in my photo, they would ALSO sue the publisher, not alleged provider of the photo
(Zubitskiy, who doesn't exist) or me (who never consented to or knew about the advertising use of the photo).
The details of this litigation are here:
Gregerson v. Vilana case no. 06-cv-01164 D. Minn. (I'm not
a lawyer, I'm representing myself in court)
A person aggrieved for the publication of a photo must sue the publisher. That publisher could then sue
whoever provided the photo if there was a paid contract to buy certain permissions of use for the photo.
Australian Defamation Laws are ridiculously powerful.
A failed restaurant recently successfully sued a major newspaper for a negative review in the Australian High Court.
I'm defending myself (and my website) at trial in federal court in two months (November, 2007) against "deceptive trade practices" and "interference with prospective contractual relations" (a defamation claim was dropped).
My webpage criticizes a corporation that
published my stock photos without permission and refused to pay the licensing fee.
The federal court ruled last month that they were, in fact, guilty of infringement.
Yet the court is still allowing their claims
against my webpage to proceed, apparently based on comments posted by other victims of the same
corporation (which, under the Section 230 of the CDA, I'm not liable for anyway)
Next month is the TWO YEAR anniversary of the claims against me. Nothing on my webpage
is specifically cited as factually untrue, no evidence the webpage is false has been produced,
yet we are still going to trial -- ?!?. Although I expect to prevail,
I'm not sure this is hugely better than the Australian case (which I read about
previously and is pretty bad). I'm pro-se, doing this on my own
(my webpage with a chronology).
If I had a lawyer, my costs might be over $100,000 by now.
I've posted about my case here even though it could lead to MORE claims against me
as I truly in my heart believe in freedom of speech, and I won't concede to a
"chilling effect" because of baseless, SLAPP lawsuits.
Maybe, maybe not. My cousin is married to a woman with whom he was in an online relationship.
I've been married for two years to a woman I met online (she was my fantasy, and still is).
She emailed me as a stranger in 2003 to ask for help with a document on my
website, and we became pen pals (platonic - there were 10,000 miles between us and we never
expected to meet). After I went to another part of Asia, she offered to show me around her country...I stayed for six months, and we're back in the USA now.
However, I think there is still some stigma associated with meeting someone online.
I am reluctant to tell people we met online without clarifying how.
A massive bridge collapsing underneath you is terrifying, e.g. a source of terror.
We could close the thousands of bridges in the US that, like the 35W bridge, are rated
"structurally deficient", in the name of preventing "another 8-1". This might help
expedite funding to rehab these bridges, and fighting the "terror" of unsafe bridges
would fit with our current national priorities.
I have blocked anoymizer access to my BBS for several years. It was only used by abusive posters to block their identity.
I agree, Unipeak was used to post a threatening comment on my webpage about litigation I'm involved in, apparently by the other party in the lawsuit:
date:2006-07-01 ip:207.234.209.125 Unipeak, anonymous proxy used by Andrew Vilenchik name:Anonymous comment:Chris, be aware I\'ve heard Andrew has relations with Russian mafia. I would be very careful. Winning the case may not mean $$ for you.
The details of multiple comments posted by Andrew Vilenchik
anonymously are on my site, in many cases he used anoymizers (which I will probably start blocking, too).
The motion to dismiss Geller's bad suit cites "Gregerson v. Vilana", a defamation/copyright
lawsuit I'm a party to (I'm the Plaintiff, Gregerson).
www.eff.org/legal/cases/sapient_v_geller/sapient_m otiontodismiss.pdf.
It's cited as a minor point in the memorandum on page 22, about fair use being an affirmative defense versus a basis for dismissal.
My case is described on my page:
Gregerson v. Vilana
I've been there -- Shenzhen, Beijing, Shanghai, Ningbo, Guilin, and about
eight small factory towns.
There are two things I will not criticize publicly until I'm retired or travelling:
Islamic extremists and the Chinese government.
My sense is that it's like those countries with draconian drug laws (e.g. the
death penalty for smuggling); you're fine as long as you don't get somehow associated
with drugs (e.g. something planted on you). If that happens, you are up the creek...no
right to counsel, a fair trial, humane treatment, etc.
I would compare it to cable versus broadcast TV,
whose usage rights are negotiated separately. I licensed a photo for
use on cable TV only for a smaller fee that I would charge
for use on national broadcast TV.
The print publication of National Geographic may have a circulation of
one million copies, sell a few thousand back issues, and sell a few hundred
microfiche archives, and the original licensing agreements were based on this
understanding. Neither party envisioned a medium which would
multiply circulation by ten-fold (the CD-ROM/DVD format). Nobody
expected a new medium to end up generating more revenue than
the original print edition itself.
The law was not designed to resolve this fairly, and neither were the
licensing agreements. In fairness, photographers should share in a
financial boon reaped by NG based on massive, unanticipated additional circulation
of the photographer's work.
In the future the standard agreement might have to be based on
per-unit royalties (like is common for a music CD)
instead of a flat licensing fee based upon the current medium/audience of a publication.
That may remedy what appears to be a shortcoming in the industry-standard
licensing, a shortcoming that NG is trying to exploit.
A magistrate judge ordered me to turn over all email requested by the other side in
a federal civil lawsuit. This included email to my parents and my wife which discussed my
feelings about the case, possible legal strategy, family member's health, etc.
I have come to understand that, in a civil case anyway, anything you document is
discoverable (with the exception of communication between youself and an attorney
and youself and an expert witness). I argued that the email was not relevant, but
the courts are usually inclined to allow the other side to see it and decide for
themselves. The other side got to pour over 500+ emails that have absolutely no relevant
information.
I'm in federal court now defending against a defamation per se lawsuit over
comments I wrote on my website. Summary judgment motions are scheduled for August.
I contacted a lawyer, but I have been representing myself.
Anyone know Michael Zubitskiy? I was sued when the other party published a photo
from my website and I wrote about it. They said the photo was really taken by
Michael Zubitskiy, a Russian-speaking man they met in a health club sauna. This corporation
claims they later paid Zubitskiy $850.00 in cash for a CD-ROM with some photos,
but have lost the CD and Zubitskiy's contact info.
The case was filed in 2005 and my website was under a restraining order for the first week.
In the past two years, nobody has located any trace of this Michael Zubitskiy (no health
club membership, driver's license, address, credit record, unlisted number, etc.).
I have long since produced the certificate of copyright registration for my photo, and a second
photo I discovered the other party had published.
They are suing me for a million dollars. They have a sales agreement signed by Zubitskiy,
but their employee who notarized it surrendered his notarial comission to the attorney general
in a consent decree to avoid a hearing on misconduct.
If it's helpful to compare the difference between small claims and federal court,
there is a detailed chronology of events at the link below. I believe people should
speak up, as you can be sued at any time for anything anyway.
details: vilana financial
I had a room across Roxas Blvd. from the U.S. embassy at
the Bayview hotel. The west-facing rooms there have an overhead view of
the U.S. embassy.
The only way for the U.S. Embassy to know if I took a photo from
my window at the Bayview hotel is for the U.S. state department to subpoena me.
I can be served at:
Chris Gregerson
150 Green Ave. N.
New Richmond, WI 54017 USA
I asked the security department at the US Embassy in Manila for permission to take photos
across the street on a public sidewalk -- on Philippine soil -- just so they would know who I
was and could clear me in advance. The Philippine constitution also has freedom of speech
and the press, and the embassy security officer told me there was no law he knew of (US or
Philippine) against me taking photos. The embassy had no procedure to for me to get
authorization or clearance from them.
However, he made it very clear that if I did so,
he would have the Philippine National Police to detain, hold, and interrogate me,
after which they would detain, hold, and interrogate me.
Again, this detention would be for conduct they don't consider unlawful,
and I openly disclosed to them. I'm also a U.S. citizen, for what that's worth, and
I'm a professional photographer. Like the incident in the article, this is
presumably a civil rights violation.
The problem is that even if you prevail, the experience chills freedom of the press.
It makes exercising one's rights unnecessarily costly and burdensome. People will
reasonably have to weigh exercising their rights against harassment, legal or not,
by those who neither understand nor respect the rights of others to make
recordings in public places.
There have been protests outside the U.S. embassy in Manila, newsworthy events.
It is lawful to photograph them, but military, police, private security guards,
shop owners, or just the general public might harass or detain you based on ignorance of
the legal right and logical entitlement to take photos in public places.
When it was google street views, many people on slashdot labeled it invasion of privacy.
Now that the police are saying they, too, don't want to be recorded in public, it's perhaps
more relatable that anyone can record anything in public, as once you start making exceptions,
freedom of the press is no longer a right. I always assumed this is why freedom of the press
applies equally to all citizens, not just those the government decides are entitled to that right.
One minimal objectice standard of morality is that behavior which will wipe out your own group or species, or otherwise harm your own survival, is immoral. E.g, A culture or group which killed all of their own newborn babies would be, objectively speaking, immoral, proven by the fact they exterminated themselves. They failed.
Imprisoning people for engaging in free speech is not good for economic competitiveness, public mental health, or the advancement of better government. America is more competitive because people can freely innovate (in government, business, sciene, etc.) without being imprisoned.
So you can argue that repression is objectively immoral, as it harms the promotion of a group's welfare. As are things like genocide, poisoning your own country's water and food supply, and any behavior which contributes towards physically destroying your own (species/race/nationality).
I agree with many of your observations, if not your conclusion.
One witness did come forward anonymously. Howerver, his testimony was useless without a sworn affidavit. He agreed to provide one, then changed his mind, which left me hanging as far as claims I had made to the court. In the end, I did an IP trace (with a federal subpoena) in order to identify the source of his email to me. He then gave a helpful deposition, and never gave any reason he needed anonymity (and no harm has come to him).
You're right there is also off-line anonymity, which I think is also problematic. For example, the anthrax-filled letters sent in 2001. We still don't know who sent them, and I wish this was something we had a way of determining. There also were the packages sent by the "Unibomber". I would support a means of piercing off-line anonymity when such conduct occurs. The post office has changed their policies on packages to effect just that (anything over a pound must be mailed from the counter, rather than a drop box, so it's less anonymous).
A court of law in the country where the relevant server or ISP is located should be able to identify who is responsible for given online behavior, if that court finds there is evidence someone else's rights were violated by the behavior. This is how the off-line world works (e.g. tracing a phone call or getting an unlisted phone number via a subpoena or search warrant when a crime has occured).
Anectodal evidence is still evidence, you have offered none yourself. I'm not sure what the "baby" being trown out is, as humans don't have a need for anonymity under normal circumstances, it's the exception to the rule.
Unipeak and Affinity can oppose my subpoena and we would both get our day in court. But Affinity and Unipeak created an extra-judicial solution for themselves, a situation where they are above the law because even after they are heard and a court finds a user of their network harmed an innocent party, they keep that user from experiencing the normal, legal consequences of their criminal activity because Unipeak refuses to keep traffic logs and blocks browser cookies. This is not a political statement, Affintiy and Unipeak are doing this to turn a profit.
The really towering figures of the past century, like Jose Rizal, Mohandas Gandhi, ML King, and Nelson Madela, changed the world by speaking out publicly knowing they would be jailed or killed for their couragous acts. They could claim a valid need for anonymous speech, but they made a bigger impact by showing the strength of their convictions openly and publicly. I respect that attitude more than that of an anonymous poster, who cares enough to write about an issue but not enough to face the consequences.
After publishing the article, people came forward and told me of other publications where Vilenchik was using my photo. They gave me evidence that a sales agreement he produced in his lawsuit against me was fraudulent.
These people came forward because the article was published on my own website, which comes up high in search results, and I could not post the article there anonymously (without being discovered). The witnesses needed to have a way to reach me, and needed to know I was the photographer in question.
I agree that standing up for yourself can lead to "a lot of trouble". I'm figting in federal court to protect my right to speak the truth publicly. Maybe my problem is I have the guts to stick up for my constitutional rights instead of hiding behind anonymity.
I have been sued for defamation by a Russian businessman after I wrote a webpage that criticized him. One of my witnesses claimed the Russian threatened his life. A commment was later posted on my website using an anonymizing web proxy saying the businessman was in the Russian Mafia, and implying if I win in court I might loose my life.
I issued a federal subpoena for an IP trace to find out who made this threat. It went to Affinity Internet, who is the ISP for Unipeak, an anonymizing web proxy. I later learned Unipeak was the source of the comment threatening me, but Unipeak didn't have any valid contact information and their website says they keep no traffic logs.
My local police are now involved, my neighbors keep an eye on my house, and my wife and extended family are very upset about this threat, which we take seriously.
Whoo hoo! Hooray for anonymity! By all means, terrorize, threaten, steal, and engage in represehsible and illegal conduct with anonymity and impunity. I choose not to lie, cheat, or steal, but I tell the truth without anonymity and I face any consequences. By comparison, every criminal and scumbag wants anonymity.
Slashdot Mirror
The bureaucracy and corruption is stifling, but I give Filipinos credit for some progressiveness.
Specifically, they had two bloodless revolutions (EDSA I and II, ousting Marcos and Estrada, respectively). Manila is catching up with India as a location for call centers (kahit sino diyan alam mag English/everyone there knows English). There is a wind farm in northern Luzon, where a coconut biofuel plantation is going in, too.
PS. Mr. Ricardo Gonzalez, post here if there's anything stateside people can do that would be helpful.
You still can. This ruling only states that if such a letter is posted anonymously, there enough teeth in copyright law to require disclosure of the poster's identity. If there is a proper lawsuit subsequently filed, you are still entitled to a "fair use" defense, as well as a "free speech" defense, and whatever else.
The underlying concern is that someone can sue you for posting a cease-and-desist letter, not that they will necessarily win. But you can be sued for anything at any time, as there are virtually no checks against baseless lawsuits.
I was sued for defamation when I blogged that a photo published by a corporation belonged to me, and they used it without permission. In their lawsuit, they said it was really taken by "Michael Zubitskiy". Well, there is no such person. I was sued in Oct. of 2005, had a federal trial in Nov. 2007 (represented myself), and I'm currently waiting for the judge's verdict (it was a bench trial). In 2 years and 4 months, the courts have still not ruled that this non-existent person doesn't exist (there has never been any evidence he's real). They added claims against me for trademark infringement and unjust enrichment (I won on summary judgment). They further claimed allowing visitors to post critical comments on my website was "tortuous interference with prospective contractual relations", and despite the DMCA safe harbor this claim went to trial. I'm waiting for the court's ruling and while I assume I'll prevail the fact remains you can be sued for anything.
This is the system we have, and if you have the guts to exercise your rights in a meaningful way against others with more power than you, they may misuse the legal system to retaliate against you. This is not new, but we are seeing more if it as the internet has empowered people to exercise their free speech rights in meaningful ways. On one level, this increase in abusive (SLAPP) lawsuits shows people are finding their voice.
AGREED. If it's really my job to be paranoid, I can do that: I'll never give anyone a check (so now it's a savings account) and I'll never give out my credit card number or let anyone swipe it (so now it's a paperweight).
That's not the idea of our financial system, there is a balance, and the crisis is not with millions of people are posting their credit card numbers online -- it's with reckless credit. Blaming consumers is so absurd, and I find it hard to understand why so many people, people who are NOT careless with their personal financial information, buy into the idea that if someone else commits fraud, they are responsible.
Exactly -- the British bank was the victim, as was the Texas payday loan company who gave out $500 to a man "using the [LifeLock] CEO's widely publicized SSN". I don't see how the person who's identity was used is affected by this.
My Grandmother has excellent credit, no debt, is 94 and lives in a retirement home. She can no longer legally make decisions for herself, so she couldn't sign a contract if she wanted to (her money is not under her control). If I post all her vital financial and personal information, and other people fraudulently obtain credit with it, my Grandmother would not be victimized whatsoever -- only the merchants (incorrectly) extending credit would be. Their only recourse would be against the people who defrauded them, as it should be.
Isn't that the way is should be? The merchant who stands to profit by extending credit is the one who bears the cost if they take a bad risk? Third parties don't have any responsibility, other than to say "Nope, I never bought that/authorized it".
On a footnote, I think publicity (rather than anonymity) helps here -- if there is lots of verifiable information about the "real" you in the public domain, it's easier for others to spot an imposter.
When I was about 14, the Minneapolis City Pages did a story on him. The story said he was listed as "Zxzyx" in the Minneapolis phone book (so that he was guaranteed the last spot) and anyone could call him anytime. I looked in the phone book, and the listing was there, and I called. I was impressed that he had the guts to live completely out in the open (and it worked for him, too).
A subpoena for an IP trace ("tell me who owned this internet access account on this date") is not normally a burden. If the subpoena instead requested the school "identify who was using this computer at this time", the school's response fits. The subpoena requires the school investigate, not just disgorge a few records.
Maybe all the students in the dorm could each claim they were the guilty party? ("I'm Sparticus!")
I am defending myself (also pro se) against similar claims over my own gripe website/blog. My litigation has gone on two years+ now. The other side dropped their defamation claim, and I won summary judgment on their claims of trademark infringement and unjust enrichment. They have three remaining claims -- appropriation of name and likeness, deceptive trade practices, and interference with contractual relations (they don't want me to use the name and photo of the guy who sued me, and they to hold me liable for comments visitors to my site posted)
The whole thing started when I saw a photo from my website in a full-page phone book ad. The company sued me for defamation when I wrote about their unauthorized use of my image. I have three copyright claims against them. The trial should take 2-3 days. Details are here: Gregerson v. Vilana Financial, Inc.
This is a first amendment issue. A google image search for "kids" returns 67,400,000 results. Can you give an example of the law which makes this illegal? I'm sure there are not model releases for each photo. Should Google pull all those "illegal" images from their search results?
I've photographed kids and put their photos on the web, as have about a million other people. Publishing on the web is a limited "giving away", but it does not mean I'm entering a contract to license the photo for all conveivable use to anyone who swipes it.
Food for thought:
In the US, most laws related to model releases are case law, there is unfortunately no legislation that outlines when a release is needed and what it should say. A model release valid in California may not work in New York, much less Australia. Even then, certain uses (such as "sensitive subjects") require a different model release. It's way too complicated to just say "all web publication of photos of children is illegal".
If you respect other people's first amendment rights, you will start out assuming people have a right to publish/speak, and then very narrowly carve out limited exceptions where there is clear law. If you want your image to remain private, the Restatement of Torts (Second) says it's NOT private:
NO, it's NOT the photographer's fault (writes a photographer).
Commercial use includes EDITORIAL use, such as articles, textbooks, etc. which requires no model release. You are actually talking about only one form of commercial use, advertising use, in which case the PUBLISHER, not the photographer, needs a model release (the photographer is usually the one who obtains a release, but it's for the benefit of anyone who publishes the photo in an ad). A release helps the publisher prevail if a lawsuit for appropriation of likeness is brought (violation of a person's right of publicity).
There is a pervasive belief in the myth that:
If you publish a photo, YOU are liable, not the photographer or whoever gave you the photo. As an example, a person may sell you a photo he didn't take, you publish it, and the true photographer then sues YOU, the publisher, for copyright infringement.
Real life example: I am suing a corporation for copyright infringement right now, after they published a photo of mine in their photo book ad (without my knowledge or consent). They claim a photographer named "Michael Zubitskiy", who they got the photos from, is liable, and they produced a signed and notarized sales agreement with him. The court ruled that they, the publisher, have strict liability, nobody else. Under the logic that the photographer is to blame, and I had to sue Michael Zubitskiy, I would have a problem -- Zubitskiy is a fictional person the corporation made up (see if you can find him, I've offered a reward). No, my claim is against the publisher (as the court has ruled).
If a person was in my photo, they would ALSO sue the publisher, not alleged provider of the photo (Zubitskiy, who doesn't exist) or me (who never consented to or knew about the advertising use of the photo). The details of this litigation are here: Gregerson v. Vilana case no. 06-cv-01164 D. Minn. (I'm not a lawyer, I'm representing myself in court)
A person aggrieved for the publication of a photo must sue the publisher. That publisher could then sue whoever provided the photo if there was a paid contract to buy certain permissions of use for the photo.
I'm defending myself (and my website) at trial in federal court in two months (November, 2007) against "deceptive trade practices" and "interference with prospective contractual relations" (a defamation claim was dropped).
My webpage criticizes a corporation that published my stock photos without permission and refused to pay the licensing fee. The federal court ruled last month that they were, in fact, guilty of infringement. Yet the court is still allowing their claims against my webpage to proceed, apparently based on comments posted by other victims of the same corporation (which, under the Section 230 of the CDA, I'm not liable for anyway)
Next month is the TWO YEAR anniversary of the claims against me. Nothing on my webpage is specifically cited as factually untrue, no evidence the webpage is false has been produced, yet we are still going to trial -- ?!?. Although I expect to prevail, I'm not sure this is hugely better than the Australian case (which I read about previously and is pretty bad). I'm pro-se, doing this on my own (my webpage with a chronology). If I had a lawyer, my costs might be over $100,000 by now.
I've posted about my case here even though it could lead to MORE claims against me as I truly in my heart believe in freedom of speech, and I won't concede to a "chilling effect" because of baseless, SLAPP lawsuits.
I've been married for two years to a woman I met online (she was my fantasy, and still is). She emailed me as a stranger in 2003 to ask for help with a document on my website, and we became pen pals (platonic - there were 10,000 miles between us and we never expected to meet). After I went to another part of Asia, she offered to show me around her country...I stayed for six months, and we're back in the USA now.
However, I think there is still some stigma associated with meeting someone online. I am reluctant to tell people we met online without clarifying how.
A massive bridge collapsing underneath you is terrifying, e.g. a source of terror. We could close the thousands of bridges in the US that, like the 35W bridge, are rated "structurally deficient", in the name of preventing "another 8-1". This might help expedite funding to rehab these bridges, and fighting the "terror" of unsafe bridges would fit with our current national priorities.
I agree, Unipeak was used to post a threatening comment on my webpage about litigation I'm involved in, apparently by the other party in the lawsuit:
The details of multiple comments posted by Andrew Vilenchik anonymously are on my site, in many cases he used anoymizers (which I will probably start blocking, too).The motion to dismiss Geller's bad suit cites "Gregerson v. Vilana", a defamation/copyright lawsuit I'm a party to (I'm the Plaintiff, Gregerson). www.eff.org/legal/cases/sapient_v_geller/sapient_m otiontodismiss.pdf.
It's cited as a minor point in the memorandum on page 22, about fair use being an affirmative defense versus a basis for dismissal.
My case is described on my page:
Gregerson v. Vilana
I've been there -- Shenzhen, Beijing, Shanghai, Ningbo, Guilin, and about eight small factory towns.
There are two things I will not criticize publicly until I'm retired or travelling: Islamic extremists and the Chinese government.
My sense is that it's like those countries with draconian drug laws (e.g. the death penalty for smuggling); you're fine as long as you don't get somehow associated with drugs (e.g. something planted on you). If that happens, you are up the creek...no right to counsel, a fair trial, humane treatment, etc.
I would compare it to cable versus broadcast TV, whose usage rights are negotiated separately. I licensed a photo for use on cable TV only for a smaller fee that I would charge for use on national broadcast TV.
The print publication of National Geographic may have a circulation of one million copies, sell a few thousand back issues, and sell a few hundred microfiche archives, and the original licensing agreements were based on this understanding. Neither party envisioned a medium which would multiply circulation by ten-fold (the CD-ROM/DVD format). Nobody expected a new medium to end up generating more revenue than the original print edition itself.
The law was not designed to resolve this fairly, and neither were the licensing agreements. In fairness, photographers should share in a financial boon reaped by NG based on massive, unanticipated additional circulation of the photographer's work.
In the future the standard agreement might have to be based on per-unit royalties (like is common for a music CD) instead of a flat licensing fee based upon the current medium/audience of a publication. That may remedy what appears to be a shortcoming in the industry-standard licensing, a shortcoming that NG is trying to exploit.
A magistrate judge ordered me to turn over all email requested by the other side in a federal civil lawsuit. This included email to my parents and my wife which discussed my feelings about the case, possible legal strategy, family member's health, etc.
I have come to understand that, in a civil case anyway, anything you document is discoverable (with the exception of communication between youself and an attorney and youself and an expert witness). I argued that the email was not relevant, but the courts are usually inclined to allow the other side to see it and decide for themselves. The other side got to pour over 500+ emails that have absolutely no relevant information.
details are here:vilana financial
I'm in federal court now defending against a defamation per se lawsuit over comments I wrote on my website. Summary judgment motions are scheduled for August. I contacted a lawyer, but I have been representing myself.
Anyone know Michael Zubitskiy? I was sued when the other party published a photo from my website and I wrote about it. They said the photo was really taken by Michael Zubitskiy, a Russian-speaking man they met in a health club sauna. This corporation claims they later paid Zubitskiy $850.00 in cash for a CD-ROM with some photos, but have lost the CD and Zubitskiy's contact info.
The case was filed in 2005 and my website was under a restraining order for the first week. In the past two years, nobody has located any trace of this Michael Zubitskiy (no health club membership, driver's license, address, credit record, unlisted number, etc.). I have long since produced the certificate of copyright registration for my photo, and a second photo I discovered the other party had published.
They are suing me for a million dollars. They have a sales agreement signed by Zubitskiy, but their employee who notarized it surrendered his notarial comission to the attorney general in a consent decree to avoid a hearing on misconduct. If it's helpful to compare the difference between small claims and federal court, there is a detailed chronology of events at the link below. I believe people should speak up, as you can be sued at any time for anything anyway.
details: vilana financial
I had a room across Roxas Blvd. from the U.S. embassy at the Bayview hotel. The west-facing rooms there have an overhead view of the U.S. embassy.
The only way for the U.S. Embassy to know if I took a photo from my window at the Bayview hotel is for the U.S. state department to subpoena me. I can be served at:
Chris Gregerson
150 Green Ave. N.
New Richmond, WI 54017 USA
I asked the security department at the US Embassy in Manila for permission to take photos across the street on a public sidewalk -- on Philippine soil -- just so they would know who I was and could clear me in advance. The Philippine constitution also has freedom of speech and the press, and the embassy security officer told me there was no law he knew of (US or Philippine) against me taking photos. The embassy had no procedure to for me to get authorization or clearance from them.
However, he made it very clear that if I did so, he would have the Philippine National Police to detain, hold, and interrogate me, after which they would detain, hold, and interrogate me. Again, this detention would be for conduct they don't consider unlawful, and I openly disclosed to them. I'm also a U.S. citizen, for what that's worth, and I'm a professional photographer. Like the incident in the article, this is presumably a civil rights violation.
The problem is that even if you prevail, the experience chills freedom of the press. It makes exercising one's rights unnecessarily costly and burdensome. People will reasonably have to weigh exercising their rights against harassment, legal or not, by those who neither understand nor respect the rights of others to make recordings in public places.
There have been protests outside the U.S. embassy in Manila, newsworthy events. It is lawful to photograph them, but military, police, private security guards, shop owners, or just the general public might harass or detain you based on ignorance of the legal right and logical entitlement to take photos in public places.
When it was google street views, many people on slashdot labeled it invasion of privacy. Now that the police are saying they, too, don't want to be recorded in public, it's perhaps more relatable that anyone can record anything in public, as once you start making exceptions, freedom of the press is no longer a right. I always assumed this is why freedom of the press applies equally to all citizens, not just those the government decides are entitled to that right.
One minimal objectice standard of morality is that behavior which will wipe out your own group or species, or otherwise harm your own survival, is immoral. E.g, A culture or group which killed all of their own newborn babies would be, objectively speaking, immoral, proven by the fact they exterminated themselves. They failed.
Imprisoning people for engaging in free speech is not good for economic competitiveness, public mental health, or the advancement of better government. America is more competitive because people can freely innovate (in government, business, sciene, etc.) without being imprisoned.
So you can argue that repression is objectively immoral, as it harms the promotion of a group's welfare. As are things like genocide, poisoning your own country's water and food supply, and any behavior which contributes towards physically destroying your own (species/race/nationality).
I agree with many of your observations, if not your conclusion.
One witness did come forward anonymously. Howerver, his testimony was useless without a sworn affidavit. He agreed to provide one, then changed his mind, which left me hanging as far as claims I had made to the court. In the end, I did an IP trace (with a federal subpoena) in order to identify the source of his email to me. He then gave a helpful deposition, and never gave any reason he needed anonymity (and no harm has come to him).
You're right there is also off-line anonymity, which I think is also problematic. For example, the anthrax-filled letters sent in 2001. We still don't know who sent them, and I wish this was something we had a way of determining. There also were the packages sent by the "Unibomber". I would support a means of piercing off-line anonymity when such conduct occurs. The post office has changed their policies on packages to effect just that (anything over a pound must be mailed from the counter, rather than a drop box, so it's less anonymous).
A court of law in the country where the relevant server or ISP is located should be able to identify who is responsible for given online behavior, if that court finds there is evidence someone else's rights were violated by the behavior. This is how the off-line world works (e.g. tracing a phone call or getting an unlisted phone number via a subpoena or search warrant when a crime has occured).
Anectodal evidence is still evidence, you have offered none yourself. I'm not sure what the "baby" being trown out is, as humans don't have a need for anonymity under normal circumstances, it's the exception to the rule.
Unipeak and Affinity can oppose my subpoena and we would both get our day in court. But Affinity and Unipeak created an extra-judicial solution for themselves, a situation where they are above the law because even after they are heard and a court finds a user of their network harmed an innocent party, they keep that user from experiencing the normal, legal consequences of their criminal activity because Unipeak refuses to keep traffic logs and blocks browser cookies. This is not a political statement, Affintiy and Unipeak are doing this to turn a profit.
The really towering figures of the past century, like Jose Rizal, Mohandas Gandhi, ML King, and Nelson Madela, changed the world by speaking out publicly knowing they would be jailed or killed for their couragous acts. They could claim a valid need for anonymous speech, but they made a bigger impact by showing the strength of their convictions openly and publicly. I respect that attitude more than that of an anonymous poster, who cares enough to write about an issue but not enough to face the consequences.
After publishing the article, people came forward and told me of other publications where Vilenchik was using my photo. They gave me evidence that a sales agreement he produced in his lawsuit against me was fraudulent.
These people came forward because the article was published on my own website, which comes up high in search results, and I could not post the article there anonymously (without being discovered). The witnesses needed to have a way to reach me, and needed to know I was the photographer in question.
I agree that standing up for yourself can lead to "a lot of trouble". I'm figting in federal court to protect my right to speak the truth publicly. Maybe my problem is I have the guts to stick up for my constitutional rights instead of hiding behind anonymity.
I have been sued for defamation by a Russian businessman after I wrote a webpage that criticized him. One of my witnesses claimed the Russian threatened his life. A commment was later posted on my website using an anonymizing web proxy saying the businessman was in the Russian Mafia, and implying if I win in court I might loose my life.
I issued a federal subpoena for an IP trace to find out who made this threat. It went to Affinity Internet, who is the ISP for Unipeak, an anonymizing web proxy. I later learned Unipeak was the source of the comment threatening me, but Unipeak didn't have any valid contact information and their website says they keep no traffic logs.
Further research showed the Russian, Andrew Vilenchik, was a user of Unipeak. See Vilenchik's anonymous comments.
My local police are now involved, my neighbors keep an eye on my house, and my wife and extended family are very upset about this threat, which we take seriously.
Whoo hoo! Hooray for anonymity! By all means, terrorize, threaten, steal, and engage in represehsible and illegal conduct with anonymity and impunity. I choose not to lie, cheat, or steal, but I tell the truth without anonymity and I face any consequences. By comparison, every criminal and scumbag wants anonymity.
A full description of the Lawsuit is online