I guess that should say "IF the heir sold something they didn't have the right to sell". The claim doesn't seem too sure about what exactly happened to the statute, and I'm not saying my argument is absolutely watertight. I just think that there's enough going on here that we can't just throw our hands up and say "PRIVITY OF CONTRACT" and be done with it.
Where are you getting this idea that the sole liability of the heirs will be to give back the statute? The claim alleges the statute has been sold on eBay. The heir sold something they didn't have the right to sell, they can absolutely be liable for monetary damages.
I'd argue that the bylaws create a limit on the rights that were transferred to the original recipient. It's not a matter of being bound by a contract; it's a matter of only being able to pass on the rights that you have. He only ever had the right to dispose of the statute AFTER giving the Academy a chance to buy it back. When he died and it transferred to his heirs, they inherited those same rights. It's a matter of property rights, not contractual obligations.
The argument would go: The estate didn't have the right to dispose of the statute without first giving the Academy the right of first refusal. So when they purported to transfer possession of the statute to the heirs, no actual rights to the statute were transferred. Then when the family disposed of the statute, without having any rights to it, there's a conversion claim there.
Besides, maybe an order for possession of the statute is all they want. If you look at the prayer for relief, one of the things they ask for is a chance to buy the statue for $10. To me, that means their real goal in this lawsuit is not getting money but recovering the statute.
Actually, the bylaws state it cannot be "disposed of", even by operation of law, so there's even an argument to be made that the Academy should have been offered the chance to purchase the statue even before it passed on to his heirs.
I'm not saying its definitely a winning argument, but it seems more plausible to me than this breach of contract approach.
I actually think they do have a case to be made here, although I'd have framed it as a property law issue. When the Academy gave Robert Surtees the statute, they didn't give it to him outright. They gave it to him subject to a right of first refusal. He can only pass on the rights he has, which means when he died and the statute passed on to his heirs, it passed on subject to that same right of first refusal.
But instead these lawyers have framed it as a contract law issue. That just seems odd to me. They may ultimately argue the property law issue but if that was their strategy, they certainly didn't make it clear in this claim.
This doesn't surprise me at all, but to some people, the idea that you would pay money for something you can get for free is mind-blowing, no matter how much convenient the experience was for you. It's just a matter of personal priorities.
I had a flight the other day and I realized while sitting in the departure lounge that I didn't have anything to read on the plane. I pulled out my Kobo eReader, got on the airport wireless network and bought a copy of Don Quixote for $2. Don Quixote is in the public domain and there are tons of free versions floating around. I could have pulled out my laptop, downloaded a PDF and then transferred it to my eReader. But for me it was worth spending $2 for the convenience of getting the book quickly and easily and in a format that displays nicely on my Kobo.
A few days later I happened to mention this to a friend and he was STUNNED.
"But it's free" "Yeah, but the version I got displays nicely on the Kobo and I didn't feel like pulling my laptop out of my bag and dicking around with USB cords in the departure lounge". "But...it's free! Look, you can get it from Project Gutenberg or the Google Play Store" "Yeah, but it was only $2 and it was more convenient to just get it from the Kobo store" "But... you could have got it for free!"
I followed this case closely and I wish it had come down the other way. All we needed was one judge to go the other way. Sigh.
That said, I think you misinterpret what the court was talking about when it talked about evidence disappearing. They weren't talking about the contents of the phone disappearing but other evidence that they would locate via the contents of the phone. For instance, in this case the evidence was stolen jewellery, which could be easily fenced or otherwise disposed of if it wasn't located quickly. There was also a gun involved, which the police obviously wanted to locate very quickly.
I'm not saying that just because it makes the cops lives easier, we should let them do it. But if we're going to criticize a decision, it's important to get the details right.
While I play GTAV and enjoy it and I agree that it's clear the people who wrote that petition have never actually played the game or even talked to anyone who has, I'm not sure I like the way you're spinning the free speech issue in this post.
The second thing we must be absolutely clear on is that for anyone that values free speech, be it government or a corporate entity, the fact that these women issuing their petition are abuse survivors doesn't matter even a little bit.
First, as you identify, these are private entities so the legal conception of free speech doesn't really factor in to it (unless Australian law really does offer free speech guarantees which apply to private entities, which I doubt). So this must be that vaguely defined "free speech as a social norm" concept that people love to toss around. But even then, I still don't see it.
Target and KMART aren't preventing Rockstar from speaking. They just aren't providing them with a platform to do it, and I don't think they have an obligation to. They have free speech interests too. Clearly they see choosing to sell or not to sell the game as a way to send a message to their customers, and they have the right to choose which message they send.
It doesn't mean I support their decision, I just don't see this as a free speech issue.
US telecom critics might be amused to know that the CRTC (Canada's answer to the FCC) just finished a two week hearing on Canada's ISP regulatory regime. As is Canada's way, there were constant comparisons to Europe (in which ISPs are typically more regulated than Canada) and the US (in which ISPs are less regulated than Canada).
The incumbent Canadian telephone and cable companies, who of course want less regulation, repeatedly held up the US as a shining example of telecom excellence and a case study in the beneficial effects of de-regulation.
Never has a game broken my heart more than Crazy Taxi. I sunk way too much time into the Gamecube version. When I fired up the PS3 version and heard the "new" soundtrack, I felt like a little kid, unwrapping a gift that is clearly a new video game, only to find out it's some edutainment that Mom found at the local Everything-For-A-Dollar store.
Under Canadian copyright law, Hadfield himself would probably be protected from a lawsuit by Bowie's music publisher. Canada's "Non-Commercial User-Generated Provision" states: Non-commercial user-generated content
29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if
(a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;
(b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;
(c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and
(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one
Unfortunately, YouTube worries about US law and so they would likely still have taken it down if Hadfield didn't get permission from the publisher.
The court did not say that parents are required to become all-seeing and all-powerful beings capable of supervising their children's every waking action. The duty of care required by parents will be different depending on the circumstances of the case and all the court was saying was that in this particular case, these particular parents breached the duty of care presented by these particular circumstances. Which probably wasn't a hard result to reach considering they didn't even take the most basic of steps. All we can really learn from this case is that if your kid gets busted making a defamatory Facebook profile, you should probably inquire as to whether he has taken it down.
(I feel safe making this claim because I notice that, as far as the law of negligence goes, even Randazza doesn't have a problem with how this case went).
I also don't read the CDA quite as liberally as Randazza does. If I was on the other side of that file, I'd argue that an action for negligent supervision of a child does not "treat the defendant as a publisher or speaker of information", and so section 230 does not apply. But I'm quite happy to concede that Randazza knows far more about that topic than I do. (Us Canadian lawyers needn't concern ourselves with such things).