wwp@yahoogroups.com:
Re: Discussion with ZKM's lawyer and next steps
yuval_levy 2008-Jun-01 12:42:00
Bruce,
thank you for your very lucid and summarizing thoughts.
--- In #removed#, "bruce_hemming" <bruce@...> wrote:
> must now consider what action I need to take.
yes, you're right. I am not asking you nor anybody else to give up any
of their right to action. I just ask to hold up any action that could
damage both your personal interest and the collective WWP interest.
now that they are seriously talking with us, give them time to come up
with something.
We have *years* to press charges in court, if this is needed. The only
pressing action is a cease-and-desist letter. that sent, you can and
should take all the time to explore all available options, which
includes coordinating with others who have been violated and/or
considering a negotiated solution.
Those who have joined "my" group have understood that and have agreed
to withhold action, but they have in no way relinquished any of their
rights. I am representing them *morally*, not *legally* - this has
been made clear to the ZKM's lawyer a number of times during our 2+
hours discussion.
> In particular, it appears to me that the WWP as a coherent arts
concept has been damaged
mentioned in the phone call as well, your written reminder here will
be helpful - Mr. Lintermann has an account here and I assume the
information is passed on, else I will reiterate in future contacts.
> there is a strong case for punitive
> damages far exceeding the "commercial value" of the rights
> misappropriated.
no doubts they are cornered. but we don't want to kill them. give them
time to realize this, and come with a proposal. if its expected value
exceeds the value of the damages we could collect (in both cases
adjusted for the cost of the alternative and the probability/risks),
we would be stupid to choose the lesser value alternative. And: *you*
will make the decision on their offer, sou you will value the
alternatives for yourself. I am just humbly trying to bridge, I am not
pretending to be your legal representative.
> act as a deterrent to others in the future
well, the RIAA seems to think that lawsuits are the way to deterr
theft, and then it wonders that its sales go down. I stated my
principles in a previous mail (sorry, no link, I'm on limited access
this weekend and have other activities waiting for me, so this is a
quick reply) and I told them that my priority number two, after
correction of the moral damage to the artwork, is a public awareness
campaign about the respect for author's rights. I believe there are
other ways than RIAA's to get there, and I give the ZKM and their
lawyer the credit to be smart and creative in that area and look
forward to what they come up with.
> we must not forget that the
> integrity of the concept of the WWP has been attacked and exploited.
the concept and the WWP site are (C) Berkeley. I would welcome the
involvement of the Regent of the University of California, if anybody
can bridge with them?
> In response to those pointing out that ZKM is a not for profit
> organization
oh, all of your points in respect to this are very valid, and the
moment the lawyer started to talk about how non-profit ZKM is was the
moment I lost patience (I does not take much to trigger me) and cut
short saying that this is not my concern, implying that if he goes
down that avenue he will have to tell that to a judge. We have enough
evidence of commercial interest in globorama. for now both sides of
the discussion have decided to keep the legal weaponry locked in the
arsenal and use diplomacy. So your argument is a valid one, it is just
not the time and the place for it and I sincerely hope that we got
this message across and that we won't need to reach that time and
place where your arguments will be presented.
> I am absolutely appalled at the arrogance and actions of the
> directors of ZKM
mentioned respectfully in the discussion as well. without accepting
their view or prejudicing our rights, it is possible to see their
action / motivation from a different perspective and come to a
different conclusion. now that they do have a better idea of our
perspective, I expect them to understand that from our perspective the
past behaviour is appalling and arrogant, and that they will take
corrective actions. let's give them time to do so.
> I know that by suggesting a greater financial penalty be applied
> you will feel that this is stirring the pot at the wrong time
yes, it is the wrong time, but the way you are doing it does not look
to me as stirring the pot. It is a good summary of the understandable
anger, pain and damage caused by their past action. They are now aware
of the anger, pain and damage, and they know well that if in
negotiations we don't reach a point where the comprehensive (financial
*and* non-financial) value of their offer does not match the value of
the financial penalty likely to be awareded in court, you and
everybody else will have the option to reject the offer and go to court.
negotiating is by no mean about relinquishing our rights - individual
and collective. it is about looking for solution that may have higher
overall value, i.e. higher benefit (non-financial and financial) lower
cost (e.g. no protracted legal battle) and lower uncertainty.
As food for thought: how would you react if they would offer to make
an exhibition of the WWP that respects the artwork as a whole, with a
panel of WWP contributors as curators of the exhibit, and send that
exhibition on a world tour? maybe with paying entry tickets and/or
exhibition catalog? it would surely be difficult to boil down
everything to an exact monetary value, as much as it would be
difficult to boil down the potential award from court to an exact
monetary value; and there is more than just monetary value to
consider. Being a CFA in good standing <http://www.cfainstitute.org/>,
valuation is something I have a little idea about, and I will not sell
myself cheap. Neither should you. We'll discuss in detail when there
is an offer on the table, and we will have the options to
- accept a fair offer
- push back a too low offer, asking for it to be improved
- reject the offer and escalate to court if there is no way that they
will improve their offer to the point where we feel it is right.
but first, give them time to make an *initial* offer, give us time to
*discuss* that offer, put up *counter proposals* and see where
negotiation leads us before going to court.
Most people who have ever been to court will likely feel like most
people who have ever been to war: if you can reasonably avoid it, do
it. go for it only if you have no other choice to defend your existence.
The existence of the WWP is at danger if we let this issue pass. I
hope ZKM will come up with the right corrective measures to
correct/compensate for the past infringement and contribute to the
further, solid and protected existence of the WWP.
give them some time. we have plenty of time and it cost us nothing to
wait a little.
Yuv