wwp@yahoogroups.com:
WWP vs. ZKM - New Information and New Developments
Carsten T. Rees 2008-Nov-21 20:06:00
Within the last two weeks and after many personal email contacts with
members of the WWP, I strongly felt that it cannot be ok that the ZKM
might finally just get away with its actions. So I have had several
contacts with our lawyer. During these contacts the situation of our
case WWP versus ZKM did change dramatically. I will try to sum up
these developments. Please take the time to read this, as there is a
strong development for the better in it.
1. Who commissioned the expertise?
Initially our lawyer sent me several emails concerning the question
"Who has commissioned the expertise?". He was upset about the
statement of Mr. Levy:
"The legal expertise is copyright protected and Prof. Pustejovsky, the
holder, informed me that to his knowledge his client is Carsten Rees.
He has never been told that Carsten Rees was just a delegate
representative of the ZKM-friends initiative."
Prof. Pustejovsky informed me, that he demanded a clarification from
Mr. Levy, who should sent the following text to the recipients of the
first text:
"It is not true, that Prof. Pustejovsky informed me that to his
knowledge his client is Carsten Rees. True is that Prof. Pustejovsky
informed me, that the Task force represented by Carsten Rees and Yuval
Levy asked him to prepare a legal expertise."
So this should set the questions about the expertise straight.
2. Copyright situation of the expertise
The next step, was to clarify this situation with our lawyer. There is
a speciality in German copyright law. There is the so called
"Urheberrecht". This is the right of authorship of any work of art or
any intellectual work. You cannot transfer this right - which seems
fair to me, since you cannot transfer the authorship itself. So the
German copyright law uses the concept of "right of use" the
"Nutzungsrecht". And the task force who has commissioned the expertise
holds this right on the expertise. So the right of use of the
expertise can easily be transferred to the WWP-Foundation.
My initial impulse was to make the entire expertise public. Prof.
Pustejoysky advised me that this would not be prudent, as long as
possible negotiations with the ZKM are running. I asked him if he
could prepare a sum-up of the expertise in English. He first agreed to
this and named the amount of money this would cost. My next step was
to start trying to get that money together. Prof. Pustejoysky then
made an even better offer. I should prepare this sum-up and he would
check it and could then, all necessary changes made, authorize this
sum-up - free of charge. So I contacted a friend of mine, a scholar of
English literature, if he could help me with this project.
But then news rushed in several waves and I had to postpone that.
3. Entirely new situation
On Thursday Prof. Pustejovsky informed me, that Prof. Vogel - the
lawyer of the ZKM - has asked for a phone call in the case WWP versus
ZKM.
After this call had taken place, Prof. Pustejovsky informed me that
Prof. Vogel had told him, that he was aware that Prof. Pustejovsky had
been active for the WWP and that he would like to enter negotiations.
He also said, that he had offered to enter negotiations repeatedly to
Mr. Levy and that an extent file of these communications should exist.
Prof. Vogel also told our lawyer, that the entire Globorama is no
longer made public. Prof. Vogel further stated, that there had been no
contact and communications between him and Mr. Levy for long weeks.
Prof. Pustejovsky had to tell Prof. Vogel that he has got no mandate
from the WWP currently.
What does this mean?
Prof. Vogel is a distinguished lawyer in a well known law firm. We can
take his words for true. There is neither legal advantage nor
disadvantage for him or the ZKM from these words.
So the ZKM has repeatedly tried to enter into negotiations with us.
This information has not been passed on to the Task-Force nor to the
Friends-List. We were kept under the assumption, that the ZKM was
extremely arrogant and was just ignoring us. We were made to believe
that we had to take more aggressive actions against the ZKM to force
and drive them into negotiations. We were also suggested, that there
was no real chance for negotiations and that we should be prepared to
enter two rounds in court. This is not true. From the statement made
by the lawyer of the ZKM that he has had no contact with Mr. Levy or
any other member of the Task-Force for long weeks, we must conclude
that he did not receive our request for information, on what panoramas
had actually been used.
So why did the lawyer of the ZKM become active? While the above is
hard fact and can easily be proved, the following one paragraph is
just an assumption of me: Some two weeks ago or so, I posted my first
statement on the WWP-list. This statement must have made it's way to
the ZKM. I am not surprised, I had expected this and had kept this
possibility in mind, when writing this statement. And I had my
statement checked by two jurists as to not endanger the situation of
the WWP in possible negotiations. This statement had made it clear to
the ZKM, that we are not aware of their offers for negotiations. Nor
were we aware of their repeated statements, not to publish the
Globorama any further. So the ZKM asked their lawyer to try to get
into contact with us and repeat their offer. Since Prof. Vogel only
had the contact data of Mr. Levy, he had to take the step to contact
Prof. Pustejovsky to ask him, whether he was still holding a mandate
from us. - End of my assumptions -
4. Legal situation
Prof. Pustejovsky informed me on two issues: Since the ZKM has now
repeatedly made public, that they do not publish the Globorama any
further, the legal situation for an "Abmahnung" is much more
complicated.
This is NOT problematic. The reason for the "Abmahnung" in the first
place was, to make our point of view clear to the ZKM and to force
them into negotiations. But this force is NOT needed. So we can enter
negotiations without that "Abmahnung".
The ZKM obviously sees both their mistake and the need for
negotiations. The ZKM is interested in good contacts with the WWP. The
ZKM is after all not as bad and arrogant as we were made to belief.
Second. If we are interested in getting on with our case, we should
enter negotiations quickly - time frame: one week from now. Despite
the attack that has been send to Prof. Pustejovsky lately, he is ready
to take a mandate in this case from us. He suggests to enter
negotiations with a small group.
One word about Prof. Pustejovsky: I am extremely grateful to him. He
has on every occasion tried to clarify things with his stringent
analyses. On the question of costs of the whole proceedings he sees
our difficult situation and has been very obliging.
5. How to go on?
I am told that by now there is not much activity left on the
Friends-List. Some people are considering actions on their own. So I
do not see the possibility of a solution in a big list any longer. But
I want to collect some people to get together some hundred Euros to
give a mandate to Prof. Pustejovsky to enter negotiations with the
ZKM. This would be on behalf of a WWP member whose Panoramas have been
used for sure. This panographer and his lawyer Prof. Pustejovsky would
be in charge of the negotiations, all others would be mere supporters.
Ideally the negotiations would result in an agreement between
gentlemen, that clarifies the situation, compensates for the wrong in
some way and perhaps even opens the way for some kind of cooperation.
Please do not forget: During the last months our perception of the
case had been changed by filtering and holding back information. We
all have to completely reassess our view of the situation. Strong
feelings of antipathy have been risen in us. We will have to try to
get those clear. I am still working on that after two disturbed weeks.
Mit vielen Gr??en
Carsten T. Rees