The Supreme Court has ruled that Chan's posting did not constitute stalking under GAs anti-stalking statute. Footenote 2 makes it clear they did not even need to consider how to reconcile GA law or the lower courts ruling with 1st amendment because the ELI forum activities were not stalking. The ruling itself is here: http://www.gasupreme.us/sc-op/pdf/s14a1652.pdf
I'm actually a little disappointed in this paragraph Two things can be said for Kienitz. First, defendants did not need to use the copyrighted work. They wanted to mock the Mayor, not to comment on Kienitz’s skills as a photographer or his artistry in producing this particular photograph.
There’s no good reason why defendants should be allowed to appropriate someone else’s copyrighted efforts as the starting point in their lampoon, when so many noncopyrighted alternatives (including snapshots they could have taken themselves) were available. The fair-use privilege under §107 is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors. (Many copyright owners would block all paro-‐‑ dies, for example, and the administrative costs of finding and obtaining consent from copyright holders would frustrate many academic uses.)
As you correctly noted: there aren't boat loads of non-copyrighted images for people to pick from. In reality, every image is copyrighted when created, a fact the 7th circuit presumably knows. But I also have an objection that relate to why this image has a unique 'non creative' element that makes it especially useful when someone wants to make a political comment on the mayor. That element is: it's the image the politician uses to represent himself to the public. In fact: the mayor uses it on his own promotional web page.
I think when students (or anyone) are making parody t-shirts, it's very important that those who see the image recognize the subject being parodied. In this case, that subject is Mayor Soglin. Yet, to parody any image of the mayor, they need to transform and distort image a lot. In this case, they did the latter leaving only the outline and smile. Fair enough.
But after the image is distorted, there's a risk people will not recognize the subject, Soglin. So why is it that people can recognize it's Soglin? The reason is that this was Soglin's official portrait and the 'outline' (which is not copyrightable) still matches an images many people will have seen in Soglin's promotional materials.
So it seems to me that while the students didn't intend to comment on Kienitz's skills or artistry, it nevertheless was fairly important to use a portrait that Soglin has chosen to represent himself to voters. That's a much smaller class of photos than just any old photo including one the students could select for themselves. Moreover, this photo -- the one the mayor uses on his public web page-- is likely the single best one to use because the mayor uses it.
Note that students cannot create an image with the element "mayor soglin uses this image to represent himself on his own web site", by taking one of their own. Also, all or nearly all images a mayor uses to represent himself on his own website will be copyrighted by someone and that someone will often not wish to permit the image to be used to parody or criticize the subject of the photo.
btw: Note the notion that images used by subjects (like mayors) have a special status when used as parody eviscerates any concern that someone parodying this particular image would harm Kienitz's financial prospects because those wishing to parody a mayor will tend to pick whatever images the person they want to criticize has selected. Kienitz's was selected for parody because Soglin was using it. Soglin or others deciding to use another photographer in the future would only mean the photograph they choose would be the one Soglin picked. So, Soglin would realize that he couldn't protect himself from parody by picking a different photographer and that factor ought to be removed from his choice of image when selecting promotional materials.
Re: Re: Re: Re: Hypocrisy much?" Was posted using Tor. I was not presented a Captcha. There seems to have been a delay before it appeared, but I was able to post.
It's not hypocrisy for techdirt to be one of the sites that presents captchas to some or even all TOR IPs. The fact that they do only means they are one of the sites Tor needs to approach in Step two:
Step two is to sort the problem websites based on how amenable they would be to our help. Armed with the toolkit of options we found in step one, we should go to the first (most promising) site on the list and work with them to understand their problem. Ideally we can adapt one of the ideas from the toolkit; otherwise we'll need to invent and develop a new approach tailored to their situation and needs.
Currently, techdirt clearly has some sort of problem that arises from Tor IPs. Techdirt has implemented a solution of their own devising and which matches Techdirt's values. That solution is captchas. I'd guess the problem is likely comment spam, though I can't be sure. But that solution is entirely reasonable if Techdirt wants to minimize comment spam without the need for heavy costly human powered moderation, while permitting most comments to appear in real time.
It's likely Tor as an entity either doesn't know problem Techdirt is experiencing with Tor is or Tor a notion but don't have a solution they can offer techdirt or the 'solutions' some Tor supporters offer does not solve Techdirt's problem as defined by techdirt. (The above grumbling which seems to suggest that a user being presented a captcha is somehow unacceptable also suggests that some Tor users simply do not recognize that Techdirt might actually have valid reasons to test whether a particular connection is or is not a bot.)
I think Tor is wise to decide to implement their stage 2 and begin to ask those running sites (e.g. Techdirt, Wikipedia, google) what problems they are seeing, and apply Tor's own resources to trying to find solutions help Tor's customers (i.e. "Tor users") get the quality experience Tor customers hope for. Working to improve the experience for Tor users should be Tor's responsibility, not everyone else's.
Meanwhile, those running their own sites (e.g. Techdirt) can spend time protecting their own sites from the sorts of things one does see over over anonymous proxies of all sorts-- including Tor -- and from some service providers with bad reputations--- like automated sign up bots, comment spam, hack attempts, unauthorized vulnerability testing (done to find exploits) and other things that do happen over Tor. To the extent that Tor is sometimes used for these things, Tor IPs will be blocked altogether, presented captchas or treated differently from IPs associated with providers that cancel access of those customers that indulge in these sorts of behaviors.
Techdirt has not posted any stories submitted by lucia liljegren.
Re:
The above was me.
The above is me. I forgot to sign in. :(
Georgia Supreme Court: Chan didn't stalk.
The Supreme Court has ruled that Chan's posting did not constitute stalking under GAs anti-stalking statute. Footenote 2 makes it clear they did not even need to consider how to reconcile GA law or the lower courts ruling with 1st amendment because the ELI forum activities were not stalking. The ruling itself is here:
http://www.gasupreme.us/sc-op/pdf/s14a1652.pdf
I'm actually a little disappointed in this paragraph
Two things can be said for Kienitz. First, defendants did not need to use the copyrighted work. They wanted to mock the Mayor, not to comment on Kienitz’s skills as a photographer or his artistry in producing this particular photograph.
There’s no good reason why defendants should be allowed to appropriate someone else’s copyrighted efforts as the starting point in their lampoon, when so many noncopyrighted alternatives (including snapshots they could have taken themselves) were available. The fair-use privilege under §107 is not designed to protect lazy appropriators. Its goal instead is to facilitate a class of uses that would not be possible if users always had to negotiate with copyright proprietors. (Many copyright owners would block all paro-‐‑
dies, for example, and the administrative costs of finding and obtaining consent from copyright holders would frustrate many academic uses.)
As you correctly noted: there aren't boat loads of non-copyrighted images for people to pick from. In reality, every image is copyrighted when created, a fact the 7th circuit presumably knows. But I also have an objection that relate to why this image has a unique 'non creative' element that makes it especially useful when someone wants to make a political comment on the mayor. That element is: it's the image the politician uses to represent himself to the public. In fact: the mayor uses it on his own promotional web page.
I think when students (or anyone) are making parody t-shirts, it's very important that those who see the image recognize the subject being parodied. In this case, that subject is Mayor Soglin. Yet, to parody any image of the mayor, they need to transform and distort image a lot. In this case, they did the latter leaving only the outline and smile. Fair enough.
But after the image is distorted, there's a risk people will not recognize the subject, Soglin. So why is it that people can recognize it's Soglin? The reason is that this was Soglin's official portrait and the 'outline' (which is not copyrightable) still matches an images many people will have seen in Soglin's promotional materials.
So it seems to me that while the students didn't intend to comment on Kienitz's skills or artistry, it nevertheless was fairly important to use a portrait that Soglin has chosen to represent himself to voters. That's a much smaller class of photos than just any old photo including one the students could select for themselves. Moreover, this photo -- the one the mayor uses on his public web page-- is likely the single best one to use because the mayor uses it.
Note that students cannot create an image with the element "mayor soglin uses this image to represent himself on his own web site", by taking one of their own. Also, all or nearly all images a mayor uses to represent himself on his own website will be copyrighted by someone and that someone will often not wish to permit the image to be used to parody or criticize the subject of the photo.
btw: Note the notion that images used by subjects (like mayors) have a special status when used as parody eviscerates any concern that someone parodying this particular image would harm Kienitz's financial prospects because those wishing to parody a mayor will tend to pick whatever images the person they want to criticize has selected. Kienitz's was selected for parody because Soglin was using it. Soglin or others deciding to use another photographer in the future would only mean the photograph they choose would be the one Soglin picked. So, Soglin would realize that he couldn't protect himself from parody by picking a different photographer and that factor ought to be removed from his choice of image when selecting promotional materials.
Re: Re: Re: Re: Re: Hypocrisy much?
I wanted to mention that my comment
"anon, Sep 6th, 2014 @ 10:17pm
Re: Re: Re: Re: Hypocrisy much?"
Was posted using Tor. I was not presented a Captcha. There seems to have been a delay before it appeared, but I was able to post.
Re: Re: Re: Hypocrisy much?
It's not hypocrisy for techdirt to be one of the sites that presents captchas to some or even all TOR IPs. The fact that they do only means they are one of the sites Tor needs to approach in Step two:
Step two is to sort the problem websites based on how amenable they would be to our help. Armed with the toolkit of options we found in step one, we should go to the first (most promising) site on the list and work with them to understand their problem. Ideally we can adapt one of the ideas from the toolkit; otherwise we'll need to invent and develop a new approach tailored to their situation and needs.
Currently, techdirt clearly has some sort of problem that arises from Tor IPs. Techdirt has implemented a solution of their own devising and which matches Techdirt's values. That solution is captchas. I'd guess the problem is likely comment spam, though I can't be sure. But that solution is entirely reasonable if Techdirt wants to minimize comment spam without the need for heavy costly human powered moderation, while permitting most comments to appear in real time.
It's likely Tor as an entity either doesn't know problem Techdirt is experiencing with Tor is or Tor a notion but don't have a solution they can offer techdirt or the 'solutions' some Tor supporters offer does not solve Techdirt's problem as defined by techdirt. (The above grumbling which seems to suggest that a user being presented a captcha is somehow unacceptable also suggests that some Tor users simply do not recognize that Techdirt might actually have valid reasons to test whether a particular connection is or is not a bot.)
I think Tor is wise to decide to implement their stage 2 and begin to ask those running sites (e.g. Techdirt, Wikipedia, google) what problems they are seeing, and apply Tor's own resources to trying to find solutions help Tor's customers (i.e. "Tor users") get the quality experience Tor customers hope for. Working to improve the experience for Tor users should be Tor's responsibility, not everyone else's.
Meanwhile, those running their own sites (e.g. Techdirt) can spend time protecting their own sites from the sorts of things one does see over over anonymous proxies of all sorts-- including Tor -- and from some service providers with bad reputations--- like automated sign up bots, comment spam, hack attempts, unauthorized vulnerability testing (done to find exploits) and other things that do happen over Tor. To the extent that Tor is sometimes used for these things, Tor IPs will be blocked altogether, presented captchas or treated differently from IPs associated with providers that cancel access of those customers that indulge in these sorts of behaviors.