Your comment is akin to saying "Wow, you mean someone entered a public library that everyone is allowed to enter" when in fact the charge is that the person went in and set fire to the books. And your comment is akin to saying "The US Government is burning books because the arsonist works for at US House of Representatives".
The point is more that they're changing the original positions that were claimed as fact to being positions they claim were based on what was probable. Thats a BIG difference in my book. Who is "they"? There is no "they". Its a staffer in the office of a single Representative (1 out of the total number of 435).
This one person, and just a person who is using Wikipedia just like everyone else, is just a tiny cog in a little subassembly of a small piece of the "They" (meaning the US Government).
This whole damned thing is FUD. People in the US Government are allowed to edit Wikipedia, just like everyone else -- and the edits those people make are subject to the same peer review and revision, just like everyone else.
Its nothing if not backpedaling. You are right. It's not "backpeddling", so therefore it's "nothing".
Just because one employee of the US Government made a bone-headed edit in Wikipedia does NOT make it "US Government Censors Wikipedia" (the 'article' title). It doesn't make it "backpeddling". It doesn't make it anything at all other than a bone-headed edit by someone who just happens to work for the US Government.
This will cause some ISP's to limit free access to port 25 on home networks: we can get over that. Tomorrow's Slashdot headline: "Comcast filtering email! We need net neutrality now!"
Would it be too obvious to point out that what enables abuse of services including spam and such in the first place are botnets? Kill the botnets and you kill spam. Great idea. How do you propose we do that?
You are absolutely right and furthermore I'll add this little tidbit that you missed.
Liquid that hot mixed with the styrofoam/paper cup and plastic lid made for a disaster waiting to happen. The coffee cup and its lid quite literally began to melt and disintegrate under the heat. If she hadn't spilled it in her lap right then, she would have spilled it the next time she picked up the cup.
That's $1,000,000... EACH. We know they sold 12 of them to Lenovo plus the one that blew up, so that's $13,000,000 right there. It's highly unlikely they sold more than just that. If they sold only 500 of them, that's half a billion dollars.
Of course, IBM/Lenovo can sue for whatever they want -- that doesn't mean they are actually going to win that in court.
I actually followed this article's delete fiasco and I can tell you that there were many more votes for keeping than on the page the parent listed. Funny how the history doesn't show any of that. Oh, I'm sure you'll say that the admin editted the history file too, but your credibility is stretching a little thin.
Clearly the administrator, JtkieferT, is deleting votes and using fairly arbitrary criteria to delete them. Not really. I looked it over and I tend to agree with what JtkieferT did. First of all, it's time to get a couple of misconceptions out of the way.
Misconception #1: It's not a "vote". It's a debate. There's no tally of votes and plurality has no meaning. The arguments presented are what is supposed to have meaning. If there are 10 "deletes" with no justification and 1 "keep" with a well-detailed and sound argument, the "keep" may be considered worth more than the "deletes".
Misconception #2: It's not a democracy and users are not equal in standing. Arguments from well-established and respected users are weighted much more heavily than users with 1 or 2 edits. This is to prevent the kind of astroturfing that was done in the linked discussion. It was incredibly obvious that the vast majority those "keeps" were from people who ONLY came to WP to "vote". They were not interested in or participants of the project and several created their accounts for the sole purpose of "voting" in this one debate. These people's "votes" were summarily discounted.
It also seemed obvious to me that these guys posted somewhere "Hey! This article is about to be deleted. Everyone come vote to keep it!" bringing a bunch of people to flood the debate with "keeps" who otherwise would not participate in the project at all. The administrator caught on and called them on it. So they got mad that their free advertising got deleted despite their astroturfing, called the administrator abusive, and made a call to/. to reduce their funding as revenge. Sounds truly mature to me.
You are absolutely right. Next time I'm in the market to buy software that filters and/or logs and/or spies on internet traffic, I'll be sure not to buy from THESE guys.
The problem is that if the user can kill it, so can the virus. A lot of viruses have anti-anti-virus routines built in them to detect and disable anti-virus software from detecting and disabling THEM. It's a warzone out there.
Because of this, anti-virus software embeds itself very deeply in the system and runs with ring 0 privs to prevent virii from subverting them.
No, they're not different concepts. In practice, the permission given must be in written form (verbal permission is too easy to repudiate) and written permission to use an individual's image for commercial purposes is the definition of "model release". Since when and says who? Many, in fact most, statements of consent are NOT written down, from allowing a cop search my trunk to having sex with my girlfriend. However, as I mentioned in my original post, its considered a VERY good idea to have it on paper in these situations, but there is not, as you claim, any law -- case or otherwise -- that absolutely requires it as you purport. It is ONLY very good practice. This is a civil case so the court only requires a 'balance of probabilities' that consent was given. If the court rules that consent was more likely than not given, even if its not on paper, then consent is considered given. There's TONS of case law on this and to claim otherwise is poppycock.
our argument here rests entirely on the fact that she's not suing her friend. I'm sure that's because he's her friend, but even if she hated him and wanted to burn him, her lawyer would almost certainly still tell her not to bother suing him, because under the law he has *NO* liability. She's not only NOT suing him, but he's her CO-PLAINTIFF. That, to me, makes all the difference in the world. That means that the model and the photographer, as a single entity, are suing Virgin for doing something that they -- again as a single entity -- gave them permission to do via the license and promissory estoppel prevents them, as a unit, from going back on that.
In addition, remember that the burden of proof lies on the plaintiffs. Virgin does NOT have to prove that they gave consent, but rather the model and the photographer, as a single unit, have to prove they did NOT. Since the model and the photographer are acting as a single unit in this case, it would be ridiculous for the plaintiff to say they intentionally published their own photographs (on Flickr) under a license which allowed commercial reuse without their own consent!
law wouldn't consider implied permission adequate even if they did. Sure it would. Does all the time. Look up "implied consent" some time.
You originally said that US law required a model release to publish. I said this was not true and I stand by that. There is no law that requires a MODEL RELEASE.
That is DIFFERENT than "supporting the right of individuals to control the commercial use of their face". You are right that there laws regarding that. However, there are limits to that control (for example, if the person is incidental or indistinguishable). There are also ways to control this that do NOT require a model release (one example would be that self-portraits would not require the photographer to sign a release for himself).
In other words, you took something very specific (model release), made it more general (any commercial use), then called me wrong. That's called a straw man, my friend.
My overall argument is this: There was not a model release signed between the photographer and the model. However, there's no law requiring that a model release be signed for it to be used, only permission given (those are different concepts). Now, here's where your argument comes in. If the model sued the photographer or if the photographer was not a part of the suit at all, the model would have a much stronger case using what you said: She has a right to control the commercial use of her image. However, the photographer and the model are acting together as plaintiffs. This, by default, assumes that the model and the photographer have no quarrels with each other including that the model has no issues with the photographer publishing her photo under a license that allows for third-party commercial use. Because of that, my opinion is that the model HAS given tacit permission to use her photo exactly as it was.
So, to summarize, even though she has not signed a model release per se, her actions indicate permission was, in fact, granted -- which is all the law requires.
CC is a copyright license. The photographer made NO PROMISES other than that he waives his copyright restrictions on the photo to the extent promised in the license. ...and the "other than that he waives his copyright restrictions on the photo to the extent promised in the license" is the promise that Virgin relied on. I love your sentence though. It was cute. It was like saying: The guy COMPLETELY SURVIVED other than than that part where he died.
Let's break down this diclaimer:
UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, That is, any additional written agreement between the parties supersedes this one.
LICENSOR OFFERS THE WORK AS-IS The licensor has no obligation to modify the work to suit anyone else, including and especially you.
AND ONLY TO THE EXTENT OF ANY RIGHTS HELD IN THE LICENSED WORK BY THE LICENSOR. If I try to license "The Da Vinci Code" or the Bible, nothing in this license is binding.
THE LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, Here's the fun bit. The licensor, through this license anyway, does not claim that....
WARRANTIES OF TITLE, he owns the work -- NOTE: This is to protect the licensor not the licensee
MARKETABILITY, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, if you try to sell it, that you'll get anything for it. Here to protect the licensor.
NONINFRINGEMENT, he didn't rip it off from someone else illegally. Again, this is to protect the licensor.
OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. or that its not broken.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU. unless you live in Massachusetts.
So, to sum up, the second part of this disclaimer block protects the licensor against people SUING HIM, not to be used as a basis to sue others. In other words, and this is the important part, disclaimers and estoppel are SHIELDS not SWORDS. They can be used as defenses whensued, but can NOT be used to sue someone else.
The photographer did not promise them the photo was okay for commercial use, he only waived his copyright. That's a completely separate issue from whether or not a model release had been obtained. In US (and, by what I read, Australian) law, it's the responsibility of the publisher of a photograph to verify the model release. First of all, he didn't waive his copyright. To waive (which means "give up all claim to") his copyright means that he's putting it into the public domain. He did not do that. He LICENSED his work using a license that allowed for commercial use. Let's be careful with our terminology.
The license itself is a promise (i.e. a contract). The license says, in essence, "I promise you can use this photo if you abide by these terms." Virgin abided by the terms and relied upon the subsequent photographer's promise that they could then use the photo. The photographer can't offer material under a license then change his mind later when he doesn't like the result. That's what estoppel is all about.
Now, let's talk about model releases. There is NO law in the US, at all, that requires a model release to publish anything. Period. It is in everyone's best interest, legally, to do so, but there's no crime or tort in not getting one. So let's end that line of argument right here and now. Since there is no law regarding this, I would say it would be up to the court to decide who has such a responsibility.
If the model does not like that the fact photographer made the photo available for commercial use, the issue is between the model and the photographer. Because the model and photographer filed suit as a single entity, the court will very likely consider that fact alone as a tacit agreement of release between the model and the photographer.
It's not reasonable to assume that releases have been signed for every photo on Flickr. ... and its not Virgin's place to care. There's an aspect in contract law called "Estoppel" that applies here. They acted on the photographer's promise (in this case, the promise came in the form of a CC license) that they could use the photo commercially and they relied upon that promise in their ad campaign.
The photographer (who is a plaintiff in this case) is now estopped from going back on that promise and collecting damages from Virgin for acting in good faith upon the plaintiff's promise.
I see a summary judgment coming very quickly here.
Nope, it's not a contract. It's a conditional license Nope, a conditional license is a type of contract: "a legally binding exchange of promises or agreement between parties that the law will enforce".
Did you even bother to click on the link that he provided you? You obviously didn't bother to read it. The Heart of Atlanta Hotel was a "private business" too and because they do business with the public (from customers potentially from other states), the Supreme Court ruled that the Commerce Clause of the Constitution can be used to apply the Civil Rights Act.
What is that, Courier New on the tabs and widgets? That font is on the Windows menu bar and widgets. Whoever took the screenshots seemed to have made Courier part of their Windows theme, for whatever reason. The font is not a part of the product itself.
Try spending a day wearing an eyepatch or something, and it'll quickly become apparent why two eyes are better than one. While you are almost certainly right, you'd be amazed how well the mind adapts in such situations. I have no depth perception at all. Zip, zero, none. I can't throw or catch with any semblance of accuracy at all. You'll never find me in the NBA or the NFL. However, for every day activities such as opening doors, driving a car, maneuvering a staircase, and even playing pool/billiards, I'm just fine. I don't find it a hindrance at all for every day activities because my mind has adapted to compensate for my lack of depth perception.
Can someone define this epithet? What I don't understand is why you have responded to the several people have attempted to explain this 'epithet' to you quite antagonistically and even with abject hostility. It is almost as if those answering the question were somehow insulting you personally, which is just as strange to me as the epithet is to you.
I'm not going to attempt to explain what has already been explained several times before. You already know the answer, or can figure it out easily enough if you put your mind to it. I don't think you are actually interested in doing that though. In the words of the immortal Shakespeare you "doth protest too much, methinks."
Does the FCC realize it is making earnest citizens literally sick with disappointment? A medical breakthrough! I'm really impressed. The FCC is spreading illness throughout the country and using "disappointment" as the disease carrier.
I just hope that my ex-girlfriend doesn't find out about this, or I'll be a goner.
Slashdot Mirror
Police helicopter pilots are notoriously good at finding people on the ground. That's their job, after all.
Well forgive me for a fucking typo. I'll go flagellate myself into a bloody pulp to atone for my grave sin.
This one person, and just a person who is using Wikipedia just like everyone else, is just a tiny cog in a little subassembly of a small piece of the "They" (meaning the US Government).
This whole damned thing is FUD. People in the US Government are allowed to edit Wikipedia, just like everyone else -- and the edits those people make are subject to the same peer review and revision, just like everyone else. Its nothing if not backpedaling. You are right. It's not "backpeddling", so therefore it's "nothing".
Just because one employee of the US Government made a bone-headed edit in Wikipedia does NOT make it "US Government Censors Wikipedia" (the 'article' title). It doesn't make it "backpeddling". It doesn't make it anything at all other than a bone-headed edit by someone who just happens to work for the US Government.
You are absolutely right and furthermore I'll add this little tidbit that you missed.
Liquid that hot mixed with the styrofoam/paper cup and plastic lid made for a disaster waiting to happen. The coffee cup and its lid quite literally began to melt and disintegrate under the heat. If she hadn't spilled it in her lap right then, she would have spilled it the next time she picked up the cup.
That's $1,000,000... EACH. We know they sold 12 of them to Lenovo plus the one that blew up, so that's $13,000,000 right there. It's highly unlikely they sold more than just that. If they sold only 500 of them, that's half a billion dollars.
Of course, IBM/Lenovo can sue for whatever they want -- that doesn't mean they are actually going to win that in court.
Misconception #1: It's not a "vote". It's a debate. There's no tally of votes and plurality has no meaning. The arguments presented are what is supposed to have meaning. If there are 10 "deletes" with no justification and 1 "keep" with a well-detailed and sound argument, the "keep" may be considered worth more than the "deletes".
Misconception #2: It's not a democracy and users are not equal in standing. Arguments from well-established and respected users are weighted much more heavily than users with 1 or 2 edits. This is to prevent the kind of astroturfing that was done in the linked discussion. It was incredibly obvious that the vast majority those "keeps" were from people who ONLY came to WP to "vote". They were not interested in or participants of the project and several created their accounts for the sole purpose of "voting" in this one debate. These people's "votes" were summarily discounted.
It also seemed obvious to me that these guys posted somewhere "Hey! This article is about to be deleted. Everyone come vote to keep it!" bringing a bunch of people to flood the debate with "keeps" who otherwise would not participate in the project at all. The administrator caught on and called them on it. So they got mad that their free advertising got deleted despite their astroturfing, called the administrator abusive, and made a call to
You are absolutely right. Next time I'm in the market to buy software that filters and/or logs and/or spies on internet traffic, I'll be sure not to buy from THESE guys.
The problem is that if the user can kill it, so can the virus. A lot of viruses have anti-anti-virus routines built in them to detect and disable anti-virus software from detecting and disabling THEM. It's a warzone out there.
Because of this, anti-virus software embeds itself very deeply in the system and runs with ring 0 privs to prevent virii from subverting them.
In addition, remember that the burden of proof lies on the plaintiffs. Virgin does NOT have to prove that they gave consent, but rather the model and the photographer, as a single unit, have to prove they did NOT. Since the model and the photographer are acting as a single unit in this case, it would be ridiculous for the plaintiff to say they intentionally published their own photographs (on Flickr) under a license which allowed commercial reuse without their own consent! law wouldn't consider implied permission adequate even if they did. Sure it would. Does all the time. Look up "implied consent" some time.
You twisted what I said.
You originally said that US law required a model release to publish. I said this was not true and I stand by that. There is no law that requires a MODEL RELEASE.
That is DIFFERENT than "supporting the right of individuals to control the commercial use of their face". You are right that there laws regarding that. However, there are limits to that control (for example, if the person is incidental or indistinguishable). There are also ways to control this that do NOT require a model release (one example would be that self-portraits would not require the photographer to sign a release for himself).
In other words, you took something very specific (model release), made it more general (any commercial use), then called me wrong. That's called a straw man, my friend.
My overall argument is this: There was not a model release signed between the photographer and the model. However, there's no law requiring that a model release be signed for it to be used, only permission given (those are different concepts). Now, here's where your argument comes in. If the model sued the photographer or if the photographer was not a part of the suit at all, the model would have a much stronger case using what you said: She has a right to control the commercial use of her image. However, the photographer and the model are acting together as plaintiffs. This, by default, assumes that the model and the photographer have no quarrels with each other including that the model has no issues with the photographer publishing her photo under a license that allows for third-party commercial use. Because of that, my opinion is that the model HAS given tacit permission to use her photo exactly as it was.
So, to summarize, even though she has not signed a model release per se, her actions indicate permission was, in fact, granted -- which is all the law requires.
Let's break down this diclaimer: UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING, That is, any additional written agreement between the parties supersedes this one. LICENSOR OFFERS THE WORK AS-IS The licensor has no obligation to modify the work to suit anyone else, including and especially you. AND ONLY TO THE EXTENT OF ANY RIGHTS HELD IN THE LICENSED WORK BY THE LICENSOR. If I try to license "The Da Vinci Code" or the Bible, nothing in this license is binding. THE LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE WORK, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, Here's the fun bit. The licensor, through this license anyway, does not claim that.... WARRANTIES OF TITLE, he owns the work -- NOTE: This is to protect the licensor not the licensee MARKETABILITY, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, if you try to sell it, that you'll get anything for it. Here to protect the licensor. NONINFRINGEMENT, he didn't rip it off from someone else illegally. Again, this is to protect the licensor. OR THE ABSENCE OF LATENT OR OTHER DEFECTS, ACCURACY, OR THE PRESENCE OF ABSENCE OF ERRORS, WHETHER OR NOT DISCOVERABLE. or that its not broken. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SUCH EXCLUSION MAY NOT APPLY TO YOU. unless you live in Massachusetts.
So, to sum up, the second part of this disclaimer block protects the licensor against people SUING HIM, not to be used as a basis to sue others. In other words, and this is the important part, disclaimers and estoppel are SHIELDS not SWORDS. They can be used as defenses whensued, but can NOT be used to sue someone else.
The license itself is a promise (i.e. a contract). The license says, in essence, "I promise you can use this photo if you abide by these terms." Virgin abided by the terms and relied upon the subsequent photographer's promise that they could then use the photo. The photographer can't offer material under a license then change his mind later when he doesn't like the result. That's what estoppel is all about.
Now, let's talk about model releases. There is NO law in the US, at all, that requires a model release to publish anything. Period. It is in everyone's best interest, legally, to do so, but there's no crime or tort in not getting one. So let's end that line of argument right here and now. Since there is no law regarding this, I would say it would be up to the court to decide who has such a responsibility.
If the model does not like that the fact photographer made the photo available for commercial use, the issue is between the model and the photographer. Because the model and photographer filed suit as a single entity, the court will very likely consider that fact alone as a tacit agreement of release between the model and the photographer.
The photographer (who is a plaintiff in this case) is now estopped from going back on that promise and collecting damages from Virgin for acting in good faith upon the plaintiff's promise.
I see a summary judgment coming very quickly here.
Did you even bother to click on the link that he provided you? You obviously didn't bother to read it. The Heart of Atlanta Hotel was a "private business" too and because they do business with the public (from customers potentially from other states), the Supreme Court ruled that the Commerce Clause of the Constitution can be used to apply the Civil Rights Act.
Based on his calm, reasoned, mature responses to me, I can't help but to agree with you, Khaed.
I'm not going to attempt to explain what has already been explained several times before. You already know the answer, or can figure it out easily enough if you put your mind to it. I don't think you are actually interested in doing that though. In the words of the immortal Shakespeare you "doth protest too much, methinks."
YHBT YHL HAND
I just hope that my ex-girlfriend doesn't find out about this, or I'll be a goner.