I'm still at a loss as to why the UK feels that it has any jurisdiction whatsoever concerning copyrights outside of its borders, but I fear that we're going to see a lot of unfortunate lawsuits because of this.
I suspect if you read the actual judgement, there will be a long discussion where the courts points out exactly why they feel they have power to apply foreign laws, probably involving interpreting whatever laws govern what powers the UK courts have, with some clauses from international treaties.
Ultimately, it's the UK courts and UK legislators who have to decide whether courts there can enforce foreign laws, not the country who's laws are being enforced. Of course, their ability to ENFORCE the judgement against a defendant who isn't based in the UK isn't enhanced in any way. If a successful plaintiff wants to recover from a US-based defendant who has no assets in the UK, they're still going to have to convince a US court to enforce the UK judgement.
Maybe someone better acquainted with how US courts decide whether to enforce foreign judgements can shed some light on whether or not this is likely to actually happen.
They would have to bring it in the US if they wanted it to matter against us.
True, there's a difference between what the law is, and whether or not it actually affects you. But a lot of the argument in the comments isn't over "what copyright law applies to Techdirt", it's over what copyright law does and does not allow, with no clarification that it's only US law being discussed.
Don't assume that just because I'm in the US, I did not research the UK side.
I never made any assumptions about what you researched. I know you look at UK and Indonesian law, I saw your previous posts. My comment was not directed specifically at you. There have been endless discussions in the comments over whether or not Slater's creative input was enough to justify a copyright claim over the pictures. I just wanted to point out that this depends on who's standards you're following.
I would be careful about relying too heavily on the "fair use" argument. When most people think "fair use", they're thinking of fair use as it exists in US copyright law. I'm not sure what, if any, similar provisions the UK or Indonesia have in their laws, but I wouldn't just assume it's as permissive as what the US has. If any litigation did arise from this, there's no guarantee it would be in the US courts or under US law.
Where this was litigated would also affect the question of how much creative input Mr. Slater had to put into the picture to claim copyright over it. The UK has mostly followed what's known as the "sweat of the brow" approach - if you put work and effort into the creation of something, then you can claim copyright in it. The standard in the US is higher - they require more creativity and originality before you can claim copyright.
As a UK paper, the Metro almost certainly consulted UK copyright "experts", who would follow the UK approach.
Even if there were a copyright on the pictures (and there's not), Mike's use is fair. He isn't going to "go broke" unless sending the words "LOL! No." back to Caters is somehow prohibitively expensive now.
Sadly, if someone brings a lawsuit against you for copyright infringement, even if the lawsuit is totally baseless, you can't just write back with "LOL no". You're going to have to provide SOME sort of legal defense and file some documents with the court, and chances are you're going to want a lawyer's help with that. And that's going to cost money.
This is why so many lawsuits settle. Sometimes winning is more expensive than settling.
Without disputing that the CRTC is useless at policing these regulations, I'd say that relying on the free market to sort things out would fail even worse. The Internet access industry isn't like other industries. There is a HUGE barrier to entry: at some point, you have to run some sort of cable to the consumers home (unless you're talking about wireless access, which Geist wasn't). Running these tables is obviously a massively expense undertaking. And do we really want/need a different cable going into our homes for every Internet access provider? Say I hate my ISP and want to change. I call up one of their competitors and they tell me "Sure, but you have to wait a year while we dig up your neighborhood to run a cable to your house". Is that really "competition"?
So instead, we have a system where independent ISPs basically just resell bandwidth that they buy from the telcos and cable companies, using the cables that already exist. This gives the telcos and cable companies a lot of power to limit any new competition either by pricing this bandwidth ridiculously high, or by shaping the traffic flowing upstream from the independent, which affects the service the independent can offer to their customers.
Without some form of regulation, if the telcos and cable companies decide they want to traffic shape, then there's nothing the independents can do about it. No new competitor can just pop up and start offering non-shaped access. It's a situation where we need regulation in order to promote competition.
The CRTC complaint system sucks for two reasons. First, it doesn't prohibit traffic shaping, it just says the ISPs have to disclose that they do it. So the solution to many complaints is "Oh, there was inadequate disclosure. The ISp doesn't have to stop doing it, they just have to be better at disclosing it".
Secondly, it puts the burden of filing complaints on the consumer, then requires them to provide evidence. The average consumer isn't capable of obtaining and providing evidence sufficient to satisfy the CRTC. So you see complaints which consist of nothing more than "My internet access is slow", which the CRTC dismisses for lack of evidence.
(untitled comment)
The decision:
http://www.supremecourt.gov.uk/docs/UKSC_2010_0015_Judgment.pdf
(untitled comment)
I'm still at a loss as to why the UK feels that it has any jurisdiction whatsoever concerning copyrights outside of its borders, but I fear that we're going to see a lot of unfortunate lawsuits because of this.
I suspect if you read the actual judgement, there will be a long discussion where the courts points out exactly why they feel they have power to apply foreign laws, probably involving interpreting whatever laws govern what powers the UK courts have, with some clauses from international treaties.
Ultimately, it's the UK courts and UK legislators who have to decide whether courts there can enforce foreign laws, not the country who's laws are being enforced. Of course, their ability to ENFORCE the judgement against a defendant who isn't based in the UK isn't enhanced in any way. If a successful plaintiff wants to recover from a US-based defendant who has no assets in the UK, they're still going to have to convince a US court to enforce the UK judgement.
Maybe someone better acquainted with how US courts decide whether to enforce foreign judgements can shed some light on whether or not this is likely to actually happen.
(untitled comment)
For those of you wanting to dig a little deeper, the judgement is available here:
http://www.nysd.uscourts.gov/cases/show.php?db=special&id=120
Re: Re:
They would have to bring it in the US if they wanted it to matter against us.
True, there's a difference between what the law is, and whether or not it actually affects you. But a lot of the argument in the comments isn't over "what copyright law applies to Techdirt", it's over what copyright law does and does not allow, with no clarification that it's only US law being discussed.
Don't assume that just because I'm in the US, I did not research the UK side.
I never made any assumptions about what you researched. I know you look at UK and Indonesian law, I saw your previous posts. My comment was not directed specifically at you. There have been endless discussions in the comments over whether or not Slater's creative input was enough to justify a copyright claim over the pictures. I just wanted to point out that this depends on who's standards you're following.
(untitled comment)
I would be careful about relying too heavily on the "fair use" argument. When most people think "fair use", they're thinking of fair use as it exists in US copyright law. I'm not sure what, if any, similar provisions the UK or Indonesia have in their laws, but I wouldn't just assume it's as permissive as what the US has. If any litigation did arise from this, there's no guarantee it would be in the US courts or under US law.
Where this was litigated would also affect the question of how much creative input Mr. Slater had to put into the picture to claim copyright over it. The UK has mostly followed what's known as the "sweat of the brow" approach - if you put work and effort into the creation of something, then you can claim copyright in it. The standard in the US is higher - they require more creativity and originality before you can claim copyright.
As a UK paper, the Metro almost certainly consulted UK copyright "experts", who would follow the UK approach.
Re: Re: Re: Re: Re:
Even if there were a copyright on the pictures (and there's not), Mike's use is fair. He isn't going to "go broke" unless sending the words "LOL! No." back to Caters is somehow prohibitively expensive now.
Sadly, if someone brings a lawsuit against you for copyright infringement, even if the lawsuit is totally baseless, you can't just write back with "LOL no". You're going to have to provide SOME sort of legal defense and file some documents with the court, and chances are you're going to want a lawyer's help with that. And that's going to cost money.
This is why so many lawsuits settle. Sometimes winning is more expensive than settling.
(untitled comment)
Without disputing that the CRTC is useless at policing these regulations, I'd say that relying on the free market to sort things out would fail even worse. The Internet access industry isn't like other industries. There is a HUGE barrier to entry: at some point, you have to run some sort of cable to the consumers home (unless you're talking about wireless access, which Geist wasn't). Running these tables is obviously a massively expense undertaking. And do we really want/need a different cable going into our homes for every Internet access provider? Say I hate my ISP and want to change. I call up one of their competitors and they tell me "Sure, but you have to wait a year while we dig up your neighborhood to run a cable to your house". Is that really "competition"?
So instead, we have a system where independent ISPs basically just resell bandwidth that they buy from the telcos and cable companies, using the cables that already exist. This gives the telcos and cable companies a lot of power to limit any new competition either by pricing this bandwidth ridiculously high, or by shaping the traffic flowing upstream from the independent, which affects the service the independent can offer to their customers.
Without some form of regulation, if the telcos and cable companies decide they want to traffic shape, then there's nothing the independents can do about it. No new competitor can just pop up and start offering non-shaped access. It's a situation where we need regulation in order to promote competition.
The CRTC complaint system sucks for two reasons. First, it doesn't prohibit traffic shaping, it just says the ISPs have to disclose that they do it. So the solution to many complaints is "Oh, there was inadequate disclosure. The ISp doesn't have to stop doing it, they just have to be better at disclosing it".
Secondly, it puts the burden of filing complaints on the consumer, then requires them to provide evidence. The average consumer isn't capable of obtaining and providing evidence sufficient to satisfy the CRTC. So you see complaints which consist of nothing more than "My internet access is slow", which the CRTC dismisses for lack of evidence.