20/11/2007

Oh what a tangled web…

[Edit. This was originally posted on Friday evening 16/11/07. Not that I’m getting all conspiratorial but it disappeared in the great site downtime and server change… There was also originally an image, which has vanished from the server and apparently was deleted (by me) on my home machine. So, albeit imageless, I defy the internet gods and post this again]

While Musharraf tries to overcome the rule of law by imprisoning all the lawyers and the Lord Chief Justice pleads, probably in vain, for a genuine discussion of prison policy, Nearly Legal’s scarce free moments today have been largely consumed by the ramifications of the posturing of a small ex-pop star.

NB: What follows is based on a cursory acquaintance with copyright law, here and abroad. All corrections and clarifications from proper IP lawyers and international private law lawyers (looking at you, Martin) are welcomed.

The artist formerly known as Prince (hereinafter ‘ex-Prince’) won plaudits, even from Geeklawyer, for giving away his last album with a certain ‘newspaper’. From hero to zero, he then promptly employed the services of ‘Websheriff’, a copyright protection firm in the US, to get fan sites to take down copyright images. Not, in itself, a good move – threatening to sue your most ardent fans.

A largely British online community of mickey takers, b3ta (Not safe for work), promptly decided that Prince was the target of its weekly parodic photoshoparama.

Websheriff turned up and issued both b3ta and the individual posters with DCMA take down notices. After a few days b3ta pulled the forum pages, replacing them with, to anyone who knows the site, a very obviously ‘dictated by the other side’s lawyers’ statement.

Now bear with me, because this is where it gets complicated. The owners of b3ta, and most of the posters, are British and live in the UK. To that extent, they are not subject to US law. However i) the English courts will likely enforce a civil judgment of a US court, meaning that a prosecution in the US is a problem; and ii) b3ta’s servers are based in the US, meaning that the hosts are vulnerable to the after effects of a DCMA takedown notice.

Not complicated enough? Try this. English copyright law, as it stands, does not admit a defence of parody or satire under fair use. Under English law, then, the utterly parodic use of copyright imagery of ex-Prince may well fall foul of copyright law. But Websheriff used US law, specifically the DCMA. In US law, there is an established and well tested defence of parodic or satiric use. There is also a potential counter claim for a false take down request under the DCMA. (There is apparently some question over Websheriff’s legal ability to issue DCMA takedown notices – more on this to come if I can find anything).

So, b3ta’s position was probably stronger under US law than English law, but, as a very popular but not hugely wealthy site, it is not surprising that they declined to defend a US based case. They were also no doubt under considerable pressure from the US hosting company.

Of course, as a PR move, taking on a site like b3ta is a catastrophically stupid thing to do. That forum thread might have gone, but the ramifications will spread out far and wide across the interweb. Maybe involving googlebombs or mass infringement, the result will inevitably be the destruction of the ex-Prince’s reputation. It is likely that the ex-Prince will find himself facing an exponentially increasing bill from Websheriff for the service of destroying his public image.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

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