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Censored Friends-List Contribution: There can be justice
Carsten T. Rees 2008-Nov-11 22:48:00
Censored Friends-List Contribution: There can be justice
I have tried to post the following text on the ZKM-Friends-list. But the owners of the list ?
Yuval and Milko - have chosen to censor it out.
Now I have to strongly contradict Yuvals way of proceeding with our case againts the ZKM.
He is rushing the Friends into legal action in court, that is not at all necessary and that is
very expensive and risky. I fear that Yuval has not really understood the different way such
cases are dealt with in the anglo-american law system and the german law system. Legal
action in court is NOT the first legal step proposed by our laywer!
So here is a revised version of my original posting.
Hello!
During the last months I have been active in the task-force, looking after the legal issues.
That is, I have been looking up relevant German laws and have been discussing legal
issues with my wife, who is a judge here in Germany. Together we have tried to clarify as
many legal questions as possible in our postings to the task force. When it became clear,
that we do need a more specialized legal support, I have suggested, to contact Prof.
Pustejovski, a well known laywer in the field of copyright law, whom I know personally and
who has got an excellent reputation in his field.
In the last postings on this list, I see some kind of irritation, whether we can ever get some
justice. And whether this is too risky and far too expensive.
After having phoned a laywer today, I would like to suggest further steps, that can bring
us closer to justice and that are not all that risky nor expensive:
It is true, further steps can only be taken by members of the community, for whom we can
prove a use of their panorama or panoramas by the ZKM. We do have proof for some
panoramas.
It is true, that further steps have to be taken individually by these individuals. But they can
group their individual actions. In the following lines I will call such an individual
"Panographer A".
Both our laywers and my suggestion is to take small steps, where the risk and the costs
are limited ? and step by step, success by success we could proceed.
The first step would be a "Strafbew?hrte Abmahnung". This is a letter by our laywer. The
content in plain English is somewhat like:
1. ZKM do not use any panoramas by Panographer A without his prior written consent.
2. ZKM do sign a declaration, that you will pay a fine of xxx Euros to Panographer A, if
you should ever do it again.
3. ZKM give us a list of the panoramas you have used in your project. That would be a list
of the panoramas by Panographer A.
4. ZKM sign a declaration, that you are ready to pay some kind of compensation to
Panographer A.
5. ZKM pay the costs of this "Abmahnung".
Do we expect some kind of reaction by the ZKM? Yes. The laywer of the ZKM knows our
laywer, they have been on different sides several times before. The ZKM will know, that we
are very serious about this business and that we are willing to go to court. And this would
be very bad news to the ZKM indeed. The ZKM is funded be the state of Baden-
W?rttemberg. Our politicians will not be amused to learn from the press, that the ZKM is
involved in a breach of copyright case. Alone the fact that they are involved in such a case
is really bad news for them.
Do we expect the ZKM to aggree to all 5 points? Not initially. The "Abmahnung" is the start
of negotiations. And these negotiations are the next step we are aiming at. Our aim is not
necessarily to push the case before court, but to get some good and acceptable results in
the negotiations.
So Panographer A is alone in taking the next step? No. Some individuals where the use of
there panorama by the ZKM can be prooved, could group there "Abmahnungen".
And what are the costs of this next step? The "Abmahnung" will cost less than 1000.-
Euro. There is one caveat: An "Abmahnung" itself is protected by copyright, so it would be
neither legal nor fair, to get one "Abmahnung" by our laywer and then use it as template
for further "Abmahnungen" by our group.
So what do we need now? We do need some members who are ready to support this case:
a. Your panorama has been used by the ZKM and we can proove that: Are you willing to go
for the "Abmahnung"?
b. You are looking for justice in this case: Are you willing to raise the level of our funds to
1000.- Euro? The money would be collected in the same was as the money for the
expertise.
c. You want to support the commuity in these actions against the ZKM: Are you willing to
stay on a list, read the informations and share your ideas, critics and thoughs, or just give
your moral support by stating "Yes I am here with you"?
Count me in for b and c, and I would offer to keep on organizing the legal issues and
advices, but i do not cling to this, if requested by the individuals who commission the
"Abmahnung", i will happily step back and regain some time for my trumpet.
If you would like to go on the way described above, this would be the end of the task-
force as it is organized currently. All the decisions will then be taken by individuals who
commission the "Abmahnung". But it would be great if the current members of the task-
force would be ready to support these members with their advice, just as they have
supported Yuval's actions with their advice in the past.
IMPORTANT: Please do answer on this list only in general terms, since it is possible, that
the ZKM scans this list. BUT please give notice to me personally, if you are interested in
proceeding on this way. We would then discuss the details in some new list. The new
group would consist of two sub-groups: a. the ones commissioning the "Abmahnung" ?
and for legal reasons these would be the only ones who will be able to decide how to go
on, once the Abmahnung is sent to the ZKM. b. the ones offering their advice and financial
support.
Why personal contact and a new list? I would have preferred to proceed in the above
described way with the Task-Force. But by censoring my posting, Yuval has made clear,
that he will under all circumstances proceed on his way. I expect to be banned from the
Friends-List, so further communication cannot rely on this channel. I can not go Yuvals
way and I am not the only one in the Task-Force who thinks that way. I do not want to be
morally responsible for driving people into court actions that are risky, expensive and
could well take more than two years time. Yuval has also made clear to the Task-Force,
that the Task-Force and the Friends-List are both his groups and that he is the one in
charge. All the rest of us can give advice and suggestions, but he decides.
To sum it all up: There is a less risky and by far less expensive way to justice. This is the
way suggested by our laywer and by german jurists. I would like to go that way. Is there
anyone else, who wants to go that way? I don NOT want to be leader or chief organizer of
a new group, I am looking for justice for the community and am willing to coordinate the
legal advice and to throw in some money for the Abmahnung. Hopefully other members of
the Task-Force will join this way too. So the small risk (some money and some work) we
are taking should be distributed on many shoulders, while the decision lies with the
individuals, who are willing to have the Abmahnung set up in their names.
Viele Gr??e
Carsten