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It is highly worthwhile to compare
EVI's actions against
EPO and more recently against
PRMI with recent case law established when
Diebold Inc was forced to pay US$125,000 in damages and fees to
various parties for illegally using the
DMCA take-down process.
In that case, Diebold's served cease
& desist notices under the DMCA provisions on internet service providers
including the
Online Policy Group (OPG) demanding that OPG take down an email
archive originating within Diebold where Diebold claimed full copyright. In
the subsequent summary judgement, Diebold were found to have knowingly
materially misrepresented that publication of the email archive
constituted copyright infringement. As part of the discussion in the summary
judgement against Diebold, the judge made the point that:
The purpose, character, nature of the use, and the effect of the use upon
the potential market for or value of the copyrighted work all indicate that
at least part of the email archive is not protected by copyright law.
Specifically the judge stated:
Moreover, Diebold has identified no specific commercial purpose or interest
affected by publication of the email archive, and there is no evidence that
such publication actually had or may have any affect on the putative market
value, if any, of Diebold’s allegedly copyrighted material. Even if it is
true that portions of the email archive have commercial value, there is no
evidence that Plaintiffs have attempted or intended to sell copies of the
email archive for profit. Publishing or hyperlinking to the email archive
did not prevent Diebold from making a profit from the content of the archive
because there is no evidence that Diebold itself intended to or could profit
from such content.
In the case of EVI taking action
against EPO during 2003, it is clear
that among the materials that
EVI
cited as being their copyright there is no evidence that EVI were
harmed commercially.
Indeed the cited EPO materials were generally historic materials which EVI
did not seek to sell or in any way profit from, instead there is
overwhelming anecdotal evidence that EVI requested such materials to be
destroyed many years previously. In the case of PRMI, it appears that EVI
did not correctly cite what materials they claim copyright on (as they are
required to do under the DMCA provisions). In any event all materials on
PRMI are either original content (copyright being vested in the various
authors) or, similar to EPO, are historic materials of no commercial value
to EVI.
This view that all materials are no longer the copyright of EVI (assuming
they had copyright in the first place, which is disputed) is reinforced by
the fact that EVI allowed their claim against EPO to lapse. If EVI really
had felt strongly that materials on EPO were their copyright, as they
claimed to in their original DMCA notification against EPO, they should have
pursued their claim against the EPO webmaster. Certainly EVI have the
financial resources to have pursued such a claim. They chose not to pursue
their claims and one must speculate that they do not themselves believe they
have valid copyright claims. As the judge in the Diebold case stated:
The fact that Diebold never actually brought suit against any alleged
infringer suggests strongly that Diebold sought to use the DMCA’s safe
harbor provisions—which were designed to protect ISPs, not copyright
holders—as a sword to suppress publication of embarrassing content rather
than as a shield to protect its intellectual property.
The Diebold case also provides further supporting arguments that EVI do not
have valid copyright claims against EPO and PRMI (and other online
resources) as follows:
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Fair Use:
The judge in the Diebold case cited the various 'Fair Use' provisions of the
US Copyright Law as being applicable, particularly the purpose of use, the
nature of copyright work, the amount of use and the effect of the use upon
the potential market. By any reasonable point of view the use of materials
relating to Prem Rawat and his organizations by former followers constitute
'fair use'.
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Intent:
In the Diebold case the judge observed that at no time was there an
intention on the part of the alleged copyright infringers to profit
commercially from placing online the relevant materials. Similarly, EPO and
PRMI, have never sought to profit commercially from their online activities.
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Public Interest Test:
In the Diebold case an important consideration was that publication of the
relevant materials was in the 'Public Interest'. This applies equally to
materials concerning Prem Rawat and his various organizations. It is
self-evidently clear that publication of Prem Rawat's various claims are in
the public interest particularly as he continues to be a 'world renowned
public speaker' as claimed by EVI and their sister organizations.
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Partial Content:
The fact Diebold knew that a proportion of the relevant materials was not in
copyright made them liable to damages and fees, even if the balance of the
relevant materials were under copyright. In the case of EVI they know, or
certainly ought to know, that a significant portion of the disputed EPO and
PRMI content is no longer copyright protected if it ever was in the first
place.
Whilst the Diebold case did not involve 'public figures' it is worth noting
here that the copyright law applicable for public figures such as Prem Rawat
is extremely complicated and very prone to uncertainty. It has to be assumed
that EVI do not wish to claim copyright over the likeness of Mr. Prem Rawat
as portrayed in numerous photographs taken in many different settings. EVI,
or certainly their legal advisors, must know that under the First Amendment,
copyright laws can not be used to keep public figures out of the public
eye. This is particularly if photographs of Mr. Rawat are not used for
commercial advantage (which is the case for both EPO and PRMI) and if malice
can not be shown.
Furthermore the onus would be on EVI, or anyone claiming copyright over
photographs of Prem Rawat, that such photographs have been used in a false
as opposed to truthful light. An additional consideration for copyright on
photographs of Prem Rawat is that, generally, the copyright to such
photographs is held by the photographer. In the light of Elan Vital
previously allowing anyone to take photographs of Prem Rawat at his public
appearances, the burden is on EVI (or anyone claiming copyright) to prove
that such photographs were taken by people under the 'work for hire'
provisions. As such EVI must be aware that there is considerable doubt of
copyright on pictures of Prem Rawat which they appear to claim is theirs.
It is also interesting to note that EVI appear to have issued DMCA
notifications only against websites that contain content that is not
favorable to Prem Rawat. There are numerous non-EVI and unofficial websites
favorable to Prem Rawat that contain pictures and extracts of speeches of
Prem Rawat that go unchallenged. Examples include
Promise of Life and
Wordpaint.
The Diebold case was hailed as an important precedent setting case for free
speech and will cause organizations pause for serious thought before making
unfounded and frivolous copyright claims under the DMCA provisions as
otherwise they may be liable for substantial damages and fees. It is hoped
that EVI and their sister organizations will review this legal precedent
carefully before embarking on another round of actions against former
followers who simply wish to
inform and
educate the public.
Article created June 21st, 2005
References:
OPG et al vs.
Diebold
articles
Diebold Summary Judgement
Electronic Frontier Foundation
Stanford Law School Center for Internet and Society
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