Category: Legal, Laws, and Regs

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Connecting Copyright

Virgin bites Creative Commons on the butt

Wayback Machine entry for post including comments.

Rogers Cadenhead finds an ad featuring Molly Holzschlag. About my post, he wrote:

Shelley Powers puts the blame for this squarely on Creative Commons for not educating users of its licenses. If you release photos for commercial reuse, but you don’t secure model releases from people they depict, you’re subjecting yourself — and those who use your work — to a thorough proctological workup by an intellectual property attorney.

Actually, I never said any of this. I said that this demonstrates that people are confused about the commercial license, because why on earth would a person add this CC license when they don’t have model releases? Or really want the photos used in ads?

Virgin Mobile’s part in this is less interesting, to me, than the issue of people putting a for-commercial CC license on a work that can’t possibly be used without a lot of additional work for commercial purposes. I didn’t once say that Virgin’s use of the photos wasn’t without its own problems.

Additionally, I’ve looked at many of the photos used in this campaign. Why on earth would the people use the commercial license with these items? None that I’ve seen are anything more than casual snapshots.

I’ve written–oh, a time or two–on my concerns regarding the Creative Commons licenses. I’ve stated that they’re confusing, that people are socially pressured and overly encouraged to use such without understanding the impact, and that we don’t really understand how these licenses work with existing laws.

Doug Pardee sent me an email giving me a heads up on an uproar at Flickr about photos Virgin Mobile is using for an ongoing campaign. Seems that Virgin Mobile used Flickr’s CC licensed photo search engine to find photos that allowed commercial use. The company then used such commercially, including a photo of an underage girl without her or her parents’ signed consent.

What’s interesting is the debate on this, as people who aren’t lawyers ask each other what does ‘commercial use’ mean, and when can a person publish a photo of an individual and so on. There is still a massive misunderstanding about the terms used in these licenses, and little done on the part of the CC promoters to do anything other then grunt, “CC, Good!”

Even now, with this discussion raging over at Flickr, another Flickr Forum item discusses the Wellcome Trust decision to release its image collection under CC, and then references those on Flickr who don’t do the same, saying, “Compare the Wellcome Trust’s attitude to that of some of the photographers here on Flickr who consider EVEN educational use of their photographs to be GRAND THEFT PHOTO.”

I would assume that the Wellcome Trust had lawyers who helped in the decision to release photos, and did so with a very clear understanding of the license, the implication, and what the CC licenses mean in regards to existing copyright laws. Obviously, the same cannot be said for many Flickr users, and social pressuring is only going to make matters worse.

In many countries, including the US and Australia, commercial use of photos requires signed consent of identifiable people, and signed consent of a guardian if the person is under legal age. To me, commercial use does not mean that your photos will be featured in a magazine. It means that your photos will be featured in an ad, and used to sell something. However, the only example of commercial use the CC organization provides is one where a person takes a photo and someone else prints it and sells the print. These are two completely different acts. Does this mean I’m wrong? If I am, then how does one classify the use of a photo in a commercial? As editorial use?

To me, editorial/educational (non-commercial) use means that your photos can be used in magazines or to accompany newspaper articles, or in classes or other forms of instruction. Such use also means that your photos can be used to promote organizations and attitudes you may despise, or even hate, but that’s besides the point.

This is what I understand about the CC, but I’m only a layman, and only have a layman’s view of all of this. Don’t look to the lawyers for advice, though; they’re so hemmed in by the rigid and restrictive rules of their profession, I’m surprised they can even identify themselves as lawyers, much less give a public opinion on anything.

Definitely don’t look for clarification or even discussion on these issues at the CC site. This is the ultimate ‘feel good’ organization, where the world is full of happy happy people creating happy happy works sharing with other happy happy people who would never abuse such generosity.

More at:

dsphotographic

Categories
Legal, Laws, and Regs

Speaking of which

I had written about the proposed projects for the five million in fines FERC fined Ameren. I may be interested in what’s happening in the aftermath of the Taum Sauk dam break, but one thing I’m not is a ‘local’, with a local’s intimate knowledge of the politics and the organizations. Black River News points today to a letter that a local, James Hawley, sent as response to the recommended proposals, and it is a direct look at how political many of the recommendations are.

(The FERC correspondence system is based on scanned correspondence and uses Java to display such, so the system isn’t particularly friendly. Access the letter through FERC, clicking on the link labeled Project Correspondence in the right side of the page–Hawley’s letter is the first in the list. If you have pop-up blockers, you’ll have to allow the site to open new windows to use the FERC document viewer.)

Among some of the criticisms of approved projects:

3) Case end loader, boom axe mower and two dump trucks–First, has any qualified company or person outside of the area looked at the existing trucks and equipment Reynolds County owns? Second, a boom axe mower is not environmentally friendly. It rips, mutilates and kills trees and vegetation. The Reynolds County Commissioners requested $259,500.00 for these trucks and equipment. I as others can’t get our roads maintained. Why would we want this equipment when only the selected get their county roads maintained? This again is for political gain and definitely should not be approved.
…
14) Building construction, dog purchase, and operational expenses for establishing a training facility for search-and-rescue dogs–This is the wording from AmerenUE’s web site, which exposes the deceptive motives from this panel. This wording doesn’t reveal that this is for hiring a K-9 handler and training center for drug and bomb sniffing dogs. Again, this money should not go for salaries and we don’t need bomb sniffing dogs.
…
22)Marketing and advertising campaign for the Iron County Hospital–This is a local hospital and everyone in the community knows where it is. People will not drive from Farmington, Potosi or anywhere else when their cities already have hospitals. The local paper says it’s for doctor recruitment. Which is it? Marketing and advertisement or doctor’s recruitment. Either way $70,000.00 is a lot of money for either purpose. Did they detail where this money is to be spent? This would be a total waste of money.
…
24) Purchase of a CT Scanner for the Advanced Healthcare Medical Center — This Center has had major financial problems in the past. This is supported by the Panels stipulation of “If the center goes out of business clause”. It states that the equipment must stay in Reynolds County if the Center goes out of business. The hospital in Iron County went out of business and it was years before another one was built. What is Reynolds County going to do if the Center goes under? Where will this scanner be stored and for how long?

The letter brings up more than enough to force FERC to get involved with this process. It seems to me that Ameren has used this to ‘buy’ the goodwill of the power elite in the community, which is not compatible with FERC’s admittedly vague and somewhat indifferent guidelines.

What I thought was even more interesting was a comment Hawley’s comments about a couple of the board members and their view of the Johnson’s Shut-Ins. He wrote:

One voting panel member, Jim Chadbourne, and the county commissioner, Wayne Henson, who had an influence with some of the projects, do not even understand the economic value of the Johnson Shut-Ins State Park. They have both stated that the park doesn’t bring any revenue to Reynolds or Iron County. With this bias, it’s obvious that they would summit projects away from “at or near the affected area”. We own a family campground and lodge next to the State Park and 85% of our business comes from the overflow of the Park.

Before the dam broke and one time when I was out at the park during the winter, among the visitors were a young couple from Japan, and a family from Germany. This during the down time, in a cold January where ice formed along the Shut-Ins. This region has such potential for tourism. Managed carefully and promoted wisely, it could be a strongly sustaining source of income for residents, as well as taxes for the community. It could be a place for families in the summer, and a business retreat or educational opportunity in the winter. With the unfortunate Taum Sauk dam break, there is even more potential for bringing visitors into the community–though such effort does require some imagination on the part of community leaders.

I’m astonished how little some of the people in the area seem to value what they have. To them, the Taum Sauk dam break seems less a tragedy, and more an unexpected windfall, which is an atrocious way to treat this event. Add this to the silence regarding the ongoing effort with the cleanup and I can’t see how the people of Missouri are being well served b this panel, or Ameren’s, efforts.

Categories
Just Shelley Legal, Laws, and Regs

Hanging up the keys

Recovered from the Wayback Machine.

A few weeks back, an 84 year old woman drove her car through a grade school lunchroom, killing an 8 year old. They haven’t come out with the specifics of what happened, but it was broad daylight, good weather, and the school was a distance off the road.

This led to more discussion about when people should hang up their keys. After this weekend, I’m even more acutely aware of this as an issue.

Yesterday, driving through a parking lot, a women coming in from a side road just pulled out in front of me, without looking, forcing me to slam on my brakes. I was lucky, and I didn’t hit her. Today another young woman wasn’t as lucky.

I had to go to the Radio Shack, at the mall near my house. The mall’s parking lot is typical for the area: a line of shops with a road in front and parking on the other side of the road. The only cross walks were in front of the all-you-can eat buffet and the department store.

I was standing by the side of the road, waiting for a break in the traffic to cross, when one person stopped for me to my left, and a woman to my right slowed down to stop. She stopped right in front of a lane leading into the road, in the lane closest to the shops. As I started across, I noticed another woman pulling out in the lane, right at the woman who was stopped. I yelled and waved my arms; the lady who was stopped was pretty limited on what she could do with a pedestrian, me, in the road and a car behind her.

We both watched as this woman just drove into the side of her car. Bright sunshine, 100% visibility, the bloody car is right in front of her. She wasn’t looking to the front, though. Nor did she look to the left, either. She was looking to the right, and didn’t once look anywhere else. In fact, if the car to the left hadn’t stopped for me, it probably would have hit her, or she would have hit it.

I checked to make sure the woman who was hit was OK, and she was fine, suffering only a combination of being rattled and astonished. I then went over to the older woman to see if she was fine, and she said, “Oh, I’ll pay for the damage. Just have her contact me,” and then started to pull away.

I put my hand on her car, and told her, “Ma’am, you can’t go. You have to exchange insurance cards.” As she was blocking the lane, I mentioned she needed to pull over out of the way. Again, she started pulling forward without even looking, this time right at an SUV. I stopped her, and signaled the other horrified driver to go. Didn’t have to signal that driver more than once–she was out of there.

I got the older woman parked finally, and she got out. Sweetest thing you’ve ever seen. The younger woman was, also — more concerned that the other wasn’t hurt. Though this was a parking lot accident, she called the police and though they can’t cite anyone in a parking lot accident, I think she wanted the police to check out the older woman.

Bluntly, this woman did not belong behind the wheels of a car. She was easily confused, extremely malleable, and did not once properly check before making any moves. Not even completely aware of what she needed to do after an accident.

Hanging up the keys. For many, it means losing independence. For this older woman, it probably means not meeting her friends at that all-you-can-eat buffet, a favorite place for the seniors. For others, it means not taking off for the trails, not shopping, having to depend on others, trying to depend on public transportation, which is still quite poor in most communities.

I only just started driving in my 40’s, and I love to drive. I shudder at the thought of the time when I’ll have to give up my wheels. I hope I make that decision before it’s too late.

My Dad gave up driving at about 75, because he had arthritis in his back and neck, and it was too hard for him to look around for cars when he wanted to change lanes. It was tough for him to quite, because he was then dependent on family or whatever public transportation existed. Luckily, in Seattle, and then later in Bloomington, he did have access to public transportation.

One of the reasons he made this decision is because, long ago when he was a Washington state Patrolman, he was racing about 70 MPH to an accident scene, lights and sirens on, when a elderly man pulled right out in front of him. The man and his wife were killed, and Dad was in the hospital for three months.

Statistically, the most dangerous drivers are under 24, but the people who get involved in more accidents in ratio to how much they drive, are over 70. The AARP recognizes this and provides special driving classes for folks over 65.

In our state, once you hit 70, you have to get your license renewed every three years, rather than six. In Illinois, there are more restrictions, including driving tests every two years after you hit 80.

When is the time to quit? There are people capable of driving into their 90’s, but others suffering vision or other problems who should quit in their 50’s, or sooner. We’d like to leave this up to the individual, but as this woman today demonstrated, as the woman who killed the child, or the man who drove out in front of my father, people don’t always make the right decisions.

The day when I have to hang up my keys is far off, I hope. May I have enough wisdom to know when it’s time. I can’t help thinking, though, that the day I can’t drive anymore will be the beginning of the end for me.

Categories
Legal, Laws, and Regs

National Arbitration Forum: Above the law

I had hoped to be finished with the book by now, and also have resolved the issue I’ve had with the National Arbitration Forum, which euphemistically calls itself “The FORUM”.

Unfortunately the book isn’t finished, but should be next week. I wish I could say the same with NAF, but they have, despite the fact that I’ve shown that no arbitration agreement exists between me and the claimant and the claimant actually committed perjury–as demonstrated in the papers the claimant filed–the arbitrator, Robert Angstead a lawyer in Jefferson City, ruled in favor of the claimant for an amount beyond what the claimant asked: over 40,000 dollars. I’m assuming the many thousands more was the costs that NAF tacked on for their ‘affordable’ arbitration process. It doesn’t represent what the claimant actually paid for this process: yet another way to make a buck.

How arbitration works, as established by the Federal Arbitration Act (FAA), and supported by decisions in the Supreme Court, as well as state law and local court decisions, is that an arbitration agreement is like a written contract. Though the arbitrator rules on the overall contract, the arbitration agreement itself is severable from the contract and its validity is decided in a court of law. In other words, the courts decide on the substantive elements of the arbitration agreement, while the arbitrator can rule on the procedural elements (the arbitration procedure).

In this case, there wasn’t even a contract, much less an arbitration agreement between me and the claimant. The company who filed the claim provided an arbitration clause, copied, word for word, from the suggested wording provided by the National Arbitration Forum. In addition, the company wasn’t even an original party to the so-called agreement. When I asked them to show a full arbitration agreement between me and the original company, as well as some proof that they had a right to claim it for themselves, they provided a copy of an agreement that was a) for a different company and b) had grossly different wording from the original clause, and c) didn’t even name NAF as the arbitration company.

When I asked it to provide proof that it had inherited this agreement, they provided a document that not only did not provide this proof, it contradicted their original claim, signed under threat of perjury. Oh, and I believe that the signature on the original claim was a copy made from a signature of a person who is no longer even with the company. So much for the wording about ‘personally reviewing’ the claim under threat of perjury.

I pointed out to NAF that the company had not only committed perjury, it also hadn’t filed the proper papers in violation of NAF’s own procedure–deliberating excluding all of the wording about my rights to discovery during the process–and that the point was moot anyway, because I disputed the existence of the arbitration agreement and it was then up to the courts to decide if one existed.

NAF, though, which operates under a pseudo legal immunity, doesn’t feel that it needs to support a) the law, or b) it’s own procedures. If it did follow the law, or its own procedures, or even gave more than a cursory glance to the evidence, it risked antagonizing a company that files hundreds, thousands of these claims and is worth a whole lot more money than I am. Yes, wasn’t arbitration supposed to be between parties on equal footing? You don’t seriously believe that, do you?

NAF continued with the arbitration procedure, and not only did the arbitrator rule against me, he and the company actually wrote a falsehood in the ruling: making statements that were not true, and which I have proof were not true. They definitely did not, according to the award, follow the “substantive law” in this decision.

What does this have to do with any of you?

Do you have a credit card? You have an arbitration agreement with the company who issued it. Signed a mortgage? Ditto the bank or mortgage company. Had a home built? Bought a car. Yup, car company agreement. Got treated at the doctor’s? Notice that fine print about the arbitration clause? Bought a computer online? You should hear the Dell computer buyers who got screwed because of the arbitration agreement Dell uses. So does Gateway. Most companies that provide online purchases of larger equipment now have arbitration clauses hidden somewhere in their sites. You buy, you arbitrate.

Have a phone? Guess what. How about cable?

Had your identity stolen and charges rang up in your name? Think you’re protected by law? Think again: companies have used arbitration to attempt to collect debts incurred through the use of a stolen identity. That’s one for the OpenID folks, eh?

If you take a new job now, check the employee agreement: there’s a very good chance you’ll find an arbitration clause. If you end up being discriminated against because of disability or sex, you won’t be able to have your day in court. No, you’ll be at NAF’s or AAA’s or JAMs tender mercies. Tell me: how much are you worth? I bet not as much as your employer.

Did you know that arbitration even trumps civil rights and the work of the Equal Opportunity Commission? From the article just linked:

“Thanks to mandatory arbitration, the securities industry is still a field dominated by white men,” Ireland said. “Women and people of color are forced to work in offices where managers have little fear of, or respect for, civil rights laws because they are essentially immune.”

Many of these arbitration agreements are to prevent or circumvent class action lawsuits. What this means is if a car company puts out a defective car and people get hurt and killed because of it, they, or their relatives, can’t file a class action lawsuit against the car company. They have to take it to arbitration. Companies like NAF who do not follow the law, and don’t even make a pretense of doing so.

How many times in a consumer arbitration case does the consumer win, rather than the corporation? I’d have to look up my figures again, but I believe it is less than 2% of the time.

I will, of course, file a motion to vacate this award. Even in this state which favors arbitration, I should be able to get this award vacated–there absolutely no support for this decision, or the fact that they continued with arbitration in violation of the law. I also plan on suing the company that initiated this process because they’ve committed fraud in their arbitration filing. But I really want to take on NAF. Why? Because no one, and no company, no organization, is above the law in this land. Since NAF attends conferences specifically to recruit companies such as the one that filed the complaint against me, and these companies invariably win with NAF operating in complete impunity with its quasi-judicial legal immunity, I believe this demonstrates that NAF is complicit in this fraudulent effort to bypass my legal protections. They certainly didn’t follow the law as they market on their site.

Luckily I can file suit against NAF and the other company in Missouri rather than NAF’s own home state of Minnesota, as NAF just hired the wife of the governor of Minnesota, Mary Pawlenty as the company’s chief counsel. Talk about getting the politicians on your side.

Arbitration: The way for equal parties to resolve their differences in a civilized manner. And it’s affordable, too. Yeah, right, and if you believe that, have I got a credit card company for you.

Categories
Legal, Laws, and Regs

Where’s the harm

I was asked in comments associated with the post on Judge Dierker, what’s the harm in someone saying something offensive.

Read the original story in the Riverfront Times about the woman and the case that forms the basis for the first chapter in Judge Dierker’s book.

Then tell me: do you see harm?