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Printablenamepeace said: The sole reason for my post was to note that Prince does have certain rights and has the right to enforce them. My other point made was that a site organizer can do so legitimately if they comply with basic concepts of intellectual property and seek qualified legal counsel.
I agree with that. I think I didn’t entirely understand your point, because you said: "The hard truth is, Prince is right, and he is well within his legal rights to take action against those who use his likeness or copyrighted works without permission." It seemed like you were saying that these websites Prince has taken action against are acting illegal by definition. I see now that you didn't mean to say that. He doesn't appear to be very judicious in picking his legal battles.
That’s the polite way of saying he is acting like a bully. 
Conclusion: Prince got no case.
Assuming that the conditions are as you described above, then I'd go along with that. Which is why I recommended that a site organizer consult a lawyer first. And I can tell you from experience that on any given day a judge is inclined to disagree with your analysis, even if it IS correct. That's the reality and risk any site organizer must acknowledge and accept. That’s true. Courts (especially in first instance) can never be expected to rule the same each time, definitly not when the circumstances are different and especially not when dealing with the more murky sides of (copyright) law such as providing information on bootlegs. There are no clear cut answers to the questions raised. Websites like these indeed should consult with an IP lawyer first if they want to limit their risks as much as possible. Problem is tho’ that when it concerns a fan site, made without money but with love for the music, paying a lawyer usually isn’t an option. Abrazo said: namepeace said: Based on what I've seen I say the targetted sites do not "encourage", "advertise", nor "facilitate sales or exchanges" of bootlegged material. Advertisements promote a product, offer it, tell you what it costs and where to get it with the purpose of convincing the consumer to buy it. As far as I could tell, what these sites do is very far from that. A discussion of the contents and quality of the boots with a clear disclaimer that no info is given on how and where to get them is not enough to constitute "encouragement", "advertising" or "facilitating the sales or exchanges"of bootlegged material.
Then they're likely okay. Look, I am not saying that Prince is totally right or that the site organizers have committed violations per se. All I am saying is Prince has certain rights that are enforceable in certain circumstances. I see what you mean now because your choice of words is more careful and precise. I agree, Prince has his rights. No doubt about it. Once it’s clear his rights are being infringed upon I wouldn’t object to him trying to enforce them. However, are they in this case? My answer based upon the facts known to me is no, or at least, not likely. These kind of cases Prince starts, like many of the cases in 1999, just aren’t that easy to judge in favour of him. Instead of going after the obvious wrong doers like WB or Sabotage and Moonraker, Prince again goes after his own fans, his own bread and water, who build sites out of love for his music. Yes, that may be illegal, and that may be not, but if that is doubtfull or absolutely no monies are made I don’t see why he should spend the dollars (his fans paid him), over and over, on such stupid and frivilous actions. Then it just beomes a pathetic matter of ego, pride and stupidity. Abrazo said: namepeace said: However, there could be a case of indirect, or contributory copyright infringement. There comes the "encouragement" argument in.
That analysis uses more terms of art but isn't much different from mine. Isn't Prince entitled to discover whether such links exist? He is. And he doesn't have to proof it's copyright infringement. the burden of proof lies on the defendant in copyright infringement cases. But as long as it’s not established as fact, or at the very least very likely that such links indeed exists nobody can honestly say these sites are acting illegal. People should be held innocent unless proven otherwise. Sending cease and desist letters without offering an oppurtunity to strike a deal and/or make changes therefore isn't really giving these sites a fair chance of defending themselves, nor is it exaclty lawfull to pressure others into doing something without having a clear basis in the law to do so. It's just bullying. since no copying or publishing of bootlegs is being done by these websites themselves there is no direct copyright infringement of bootlegged works case here (i.e. copyright infringement committed by the wesbites themselves)
Again, if the website facilitates bootleg sales, then it is violative. If it doesn't then it doesn't. But doesn't Prince and his lawyers have the right to discernt these things? Or should he just sit back and let things take their course? Yes, of course they have the right to "discern", but that isn’t the same as having the right to shut them down or accuse them of the worst copyright crimes when that is not established as fact, or at least very likely. The facts, as known to us, at the very least, indicate clearly that these sites do not facilitate bootleg sales, but only discussion of the contents and quality. If a court establishes the facts the same way and rules the explanation of the website in defense as sufficient it will likely say to Prince that it’s up to him then to convince the court that the website does facilitate bootleg sales. Let me ask you something first: If I would be actively encouraging soemone to buy bootlegs in a private conversation would I be acting illegal? Could you call Prince and have my ass busted? No, I didn't think so. What the other person has done is their own personal responsibility. me encouraging him is not infringing on any copyrights.
Come on, now. That comparison is totally inapposite to the situation I am addressing. That is different from a site easily accessible to the WORLD AT LARGE and which itemizes bootlegs by collections, dates, and tracks. If a site is touting bootlegs, even if they're not making a penny, Prince could conceivably send a "cease and desist" letter and consult with the site organizer for more information. If the site operator is violating the law or is uncooperative, I think Prince could take legal action. Okay I agree, that comparison wasn’t a real good one, but I gave it to show you the principle of the situation. Providing information, whether in private or in public, on products that violate copyright rules does not automatically constitute infringement of copyright. It’s not entirely clear where the boundaries lie when it concerns contributory or vicarious copyright infringement, but it is clear that it is not a form of direct copyright infringement. Therefore negotiations with the site owners based on requests to adapt the site to the copyright owner's wishes is then a more reasonable and fruitfull tactic than bullying them with a demand to shut down all operations. Because the problem ultimately is that it can not conclusively be said that these sites violate his rights. As long as it can’t sending cease and desist letters and demanding the sites to be taken down without negotiations on changes and without a clear judicial precedent is simply bullying and further maybe even shooting yourself in the foot, because you can become liable for abusing your rights. Rights Prince may just simply betrying to protect, but nevertheless abuses for his own warped agenda. Abrazo said: namepeace said: He didn't do it for 20 long years in his carreer. If he would have waived any right he would have done that a long time ago already. Prince has been coy about his approach to bootlegs, I agree, but with copyrighted works, registration is a key issue, particularly with boots. All the unreleased stuff is, on information and belief, registered and copyrighted. So if he finds out someone is selling, say, "Charade" without his permission, he has a right to stop them. No doubt about it. And since all the offically unreleased outtakes are copyrighted even without a registration he basically always has a case based on copyright infringement when it is a FACT that someone is selling copies of these tracks without his permission. "Now with trademark cases, the waiver issue is a little more important." Right, but we are not dealing with that, unless Prince is again claiming that his symbol and name are trademarked protected and the trademark right infringed. ... he does retain the right not to have his image used for the purposes of making money without his permission. Regardless of whether he owns the copyright to the image, if it is being used for the furtherance of a business enterprise without his permission, he is being damaged. That is a misappropriation of likeness issue (a tort claim) as opposed to a pure copyright claim.
If the use of his image for money making purposes is done outside the limits of the law there is no question about that. But, the facts concerning the targetted wesbites indicate that these sites are not operating with a commcerical purpose. Remember that a news site, which reports on public affairs, is altogether different from a fan site which has the potential of generating advertising revenues.
But what if it doesn’t generate advertising revenues? (which seems to be the case here) Right, then there isn’t much to complain is there? Besides, newspapers, TV news programs etc. definitly normally have a commercial purpose with publishing photograps depicting the image and likeness of a person. Next to that they have freedom of information purposes. In the case of these website the owners should just have to show and convince the judge that their purpose is solely to inform on and not to endorse bootlegging and I would expect them to be let of the legal hook if accepted. And as far as your copyright analysis, a copyright lawyer may disagree with you, and if you're a site operator who has not consulted a lawyer, then that means one thing: you pay through the nose to hire or you shut down.
The area of contributory copyright infringement is a murky part of copyright law. There are no clear cut answers to situations where than may be the case. So, yes a colleague may disagree. You are not my "friend" because you threaten my security. | |
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But its also our right to build up websites too, is it not?   &  | |
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Abrazo said: I agree with that. I think I didn’t entirely understand your point, because you said: "The hard truth is, Prince is right, and he is well within his legal rights to take action against those who use his likeness or copyrighted works without permission." It seemed like you were saying that these websites Prince has taken action against are acting illegal by definition. I see now that you didn't mean to say that. Good! Abrazo said: namepeace said: He doesn't appear to be very judicious in picking his legal battles.
That’s the polite way of saying he is acting like a bully. 
[Courts (especially in first instance) can never be expected to rule the same each time, definitly not when the circumstances are different and especially not when dealing with the more murky sides of (copyright) law such as providing information on bootlegs. There are no clear cut answers to the questions raised.
Indeed. Websites like these indeed should consult with an IP lawyer first if they want to limit their risks as much as possible. Problem is tho’ that when it concerns a fan site, made without money but with love for the music, paying a lawyer usually isn’t an option.
Yup. But fan site organizers now know the risks of expressing their unconditional love for an artist. Sad but true. Based on what I've seen I say the targetted sites do not "encourage", "advertise", nor "facilitate sales or exchanges" of bootlegged material. Advertisements promote a product, offer it, tell you what it costs and where to get it with the purpose of convincing the consumer to buy it. As far as I could tell, what these sites do is very far from that. A discussion of the contents and quality of the boots with a clear disclaimer that no info is given on how and where to get them is not enough to constitute "encouragement", "advertising" or "facilitating the sales or exchanges"of bootlegged material.
I agree there are distinctions, but those matter very little to Prince and/or his counsel. So some nice tribute sites have been shut down over the years. Prince has his rights. No doubt about it. Once it’s clear his rights are being infringed upon I wouldn’t object to him trying to enforce them.
However, are they in this case? My answer based upon the facts known to me is no, or at least, not likely. These kind of cases Prince starts, like many of the cases in 1999, just aren’t that easy to judge in favour of him. Instead of going after the obvious wrong doers like WB or Sabotage and Moonraker, Prince again goes after his own fans, his own bread and water, who build sites out of love for his music. Yes, that may be illegal, and that may be not, but if that is doubtfull or absolutely no monies are made I don’t see why he should spend the dollars (his fans paid him), over and over, on such stupid and frivilous actions. Then it just beomes a pathetic matter of ego, pride and stupidity. I agree that it makes no strategic or economic or career sense to waste time and resources on the harmless sites. You don't "throw good money after bad." Rather, you go after the people that are in your pocket first. Prince may know or understand what he's doing, but I don't. Abrazo said: namepeace said: However, there could be a case of indirect, or contributory copyright infringement. There comes the "encouragement" argument in.
That analysis uses more terms of art but isn't much different from mine. Isn't Prince entitled to discover whether such links exist?
He is. And he doesn't have to proof it's copyright infringement. the burden of proof lies on the defendant in copyright infringement cases. But as long as it’s not established as fact, or at the very least very likely that such links indeed exists nobody can honestly say these sites are acting illegal. People should be held innocent unless proven otherwise. I see your point. Sending cease and desist letters without offering an oppurtunity to strike a deal and/or make changes therefore isn't really giving these sites a fair chance of defending themselves, nor is it exaclty lawfull to pressure others into doing something without having a clear basis in the law to do so. It's just bullying.
The negotiations should take place after the CAD letter. If there is no resolution thereafter, then legal action ensues. At least, that's the way I understand it. And a lot of lawyers know that a lot of targeted individuals will close up shop upon mere receipt of a letter because they can't pay the freight to defend themselves. Abrazo said: since no copying or publishing of bootlegs is being done by these websites themselves there is no direct copyright infringement of bootlegged works case here (i.e. copyright infringement committed by the wesbites themselves)
namepeace said: Again, if the website facilitates bootleg sales, then it is violative. If it doesn't then it doesn't. But doesn't Prince and his lawyers have the right to discernt these things? Or should he just sit back and let things take their course?
Yes, of course they have the right to "discern", but that isn’t the same as having the right to shut them down or accuse them of the worst copyright crimes when that is not established as fact, or at least very likely. The facts, as known to us, at the very least, indicate clearly that these sites do not facilitate bootleg sales, but only discussion of the contents and quality. But as you mentioned, that poses an interesting question which has not been resolved. Can a website which discusses or piques interest in bootlegged materials be liable for copyright infringement? I dunno. If a court establishes the facts the same way and rules the explanation of the website in defense as sufficient it will likely say to Prince that it’s up to him then to convince the court that the website does facilitate bootleg sales.
Providing information, whether in private or in public, on products that violate copyright rules does not automatically constitute infringement of copyright. It’s not entirely clear where the boundaries lie when it concerns contributory or vicarious copyright infringement, but it is clear that it is not a form of direct copyright infringement. Therefore negotiations with the site owners based on requests to adapt the site to the copyright owner's wishes is then a more reasonable and fruitfull tactic than bullying them with a demand to shut down all operations. Because the problem ultimately is that it can not conclusively be said that these sites violate his rights. OK. I see your point. Abrazo said: namepeace said: Remember that a news site, which reports on public affairs, is altogether different from a fan site which has the potential of generating advertising revenues.
But what if it doesn’t generate advertising revenues? (which seems to be the case here) Right, then there isn’t much to complain is there? Besides, newspapers, TV news programs etc. definitly normally have a commercial purpose with publishing photograps depicting the image and likeness of a person. Next to that they have freedom of information purposes. In the case of these website the owners should just have to show and convince the judge that their purpose is solely to inform on and not to endorse bootlegging and I would expect them to be let of the legal hook if accepted.[/quote] I'd agree with that. Abrazo said: namepeace said: And as far as your copyright analysis, a copyright lawyer may disagree with you, and if you're a site operator who has not consulted a lawyer, then that means one thing: you pay through the nose to hire or you shut down.
The area of contributory copyright infringement is a murky part of copyright law. There are no clear cut answers to situations where than may be the case. So, yes a colleague may disagree.[/quote] Indeed. Good discussion. [This message was edited Thu Jan 22 8:07:00 PST 2004 by namepeace] Good night, sweet Prince | 7 June 1958 - 21 April 2016
Props will be withheld until the showing and proving has commenced. -- Aaron McGruder | |
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Thank you namepeace. Interesting debate on this topic. (on all threads )You are not my "friend" because you threaten my security. | |
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