wwp@yahoogroups.com:
Re: WWP vs. ZKM - New Information and New Developments
Michael 2008-Nov-23 14:53:00
Hello Carsten,
hm, thats good news. Seems there was some misunderstanding. To be
honest, I know the difference between Urheberrecht and Nutzungsrecht
well but until your clarification I didn't get it right from Prof.
Pustejovskys communication that the task-force or the group should be
able to use the expertise in the future. Good to have this set in
place again. Anyhow the ZKM-F group is still the group who has paid
the money and I can see little understanding inside the group, how
this can be doubted. The character of the WWP project as a group of
individuals creating its content was the reason for the ZKM-F group to
ask a lawyer about this expertise. How can he have been unaware of this?
BTW: I think the expertise was necessary for us (here: ZKM-F) as an
international group with different approaches to copyright and the
related legislation. It serves to be sure about the case in Germany
and what steps to take. On the other hand it will not be necessary to
use it hundreds of times for each single case. If a group solution can
be obtained with the ZKM it would be much easier for us and foremost
for the ZKM.
This brings me to another point, Carsten: It makes me wonder, why
Prof. Vogel should be regarded as a neutral person in this case? He is
the lawyer of the ZKM and I see this as an attempt to start a group
solution - or a delay - again. The ZKM obviously is listening here to
some extend (they had been invited to do so and we all remember Bernd
Lintermanns forwarded message of Prof. Weibel to theis list, don't
we?) and I guess the least they want to have is all those individuals
going berserk who were organised in a group until now. Certainly its a
lot less individuals going to court than there are organised in the
ZKM-F. But having a lawcase every week would not really make them
happy. What would please them would be an endless discussion, small
concessions, delay again, discussions etc until even the best-willing
WWP member says "Oh no, leave me alone and please stop talking about
it on this list."
If I get it right, you doubt if the ZKM-F groups wish for a complete
list of abused panoramas has ever reached the ZKM. I don't want to
guess here and I don't want to know about the whens and whats in the
past. If you have the confidence in the ZKM good will, then it is
definetly time (and their last chance to do so, I guess) for them to
forward this list NOW to the general knowledge of all wwp participants
here in this list. Do you believe they will do? I do not. This has
many times been said to be the basic requirement for peaceful
negotiations. They know they have done something illegal and they are
afraid. This might save them some money (I'm not sure about this) but
it will harm their case more than any other thing regarding reputation.
Last but not least: We know that the ZKM had been invited to discuss
all this. All what they did was to complain about us ignorants who
want to hinder spreading their project which is abusing our
contributions - no discussion after several answers to the Weibel
letter. If they want discussion, well, they are free to do so. If they
want to be serious about a compensation - may it be in money or any
other support - they are free to do so. This can be achieved here in
this list and via addressing Yuval Levy to reach a big group behind
him. If you want to form another group, well, do so. Better for the
participants and better for the ZKM if there are some few groups to
deal with, than with a lot of individuals.
Yours,
Michael
--- In #removed#, "Carsten T. Rees" <listen@...> wrote:
>
> 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
>