wwp@yahoogroups.com:
victory in the German courts!
dbain 2014-Jul-16 19:10:00
A month ago Reinhard Schmolze wrote to inform me of the final decision in the
lawsuit stemming from the copyright infringement by the ZKM (Zentrum fuer
Kunst und Medientechnologie) back in 2007. Unfortunately his e-mail must have
come while I was driving back roads in south Texas, and I never saw it.
After a favorable ruling the ZKM appealed, but the appeal was denied, so now
it is final. Many thanks to Reinhard Schmolze, Carsten Rees, Professor Clemens
Pustejowsky, and the others who fought this through, a project of many years!
I think this victory has important implications for unauthorized use of
panoramas we publish on the web. With Google's entry into the field, and the
ease of embedding photospheres hosted on Views into other sites, we may see
many more cases like this.
Here is their official statement:
++++++++++++++++++++
?In 2007 the Center for Art and Media (Zentrum fuer Kunst und
Medientechnologie -
ZKM) located in Karlsruhe, Germany, copied over 2,000 panoramas from the World
Wide Panorama website without any prior consent from either the WWP organizers
or the individual photographers.
This came to the knowledge of the WWP participants when the ZKM presented for
the second time an installation called "Globorama" in which the panoramas had
been integrated. In Globorama the visitor is surrounded by a circular screen,
10
meters in diameter and 4 meters high. The visitor of Globorama can maneuver
through 360 degree satellite images of the earth. At certain points the
visitor
can open panoramic images. At this level the WWP panoramas had been included.
This fact was in depth discussed in the WWP group. A group of WWP participants
commissioned Professor Clemens Pustejowsky, who is a known legal expert for
German copyright, to set up a legal expertise. This group then tried to come
to
an agreement with the ZMK - to no avail. Further discussions in the group
about
a court strategy did not come to a result either.
So we (Reinhard Schmolze and Carsten T. Rees) decided to further pursue this
case. Professor Clemens Pustejowsky was ready to take legal action on our
behalf.
He tried to settle the dispute by reaching an agreement with ZKM. But ZKM
insisted that any agreement between the parties must remain secret. This was
not
acceptable for us, and we turned down the offer made by the ZKM.
So in late 2009 Pustejowsky took the case to court. Reinhard Schmolze acted as
the plaintiff since he had received an email from ZKM listing 8 of his
panoramas
that had been used by ZKM.
The case was then pending in court for several years. During this time, we
prepared an introduction into panorama photography for the court.
Eventually the court commissioned an expertise about the
appropriate market price of the panoramas by a member of a professional
photographers' association. The expertise fully supported the plaintiff's case
in emphasizing the value of professional panoramic photography.
In April 2013, the court rendered a judgement and in May 2013, the plaintiff
received a copy of the reasoned decision of the court. For each of the 8
panoramas of Reinhard Schmolze that were used for the Globorama, he will
receive
a compensation of 300 Euros, which is the amount he had demanded.
Some of the reasons given by the court may be of interest. The following
quotes
are taken from the court's decision:
According to the explanations of the court-appointed expert, the compensation
of
Euro 300 per panorama requested by the plaintiff is reasonable. The expert
stated that a surcharge of up to 100% compared to simple pictures is customary
for pictures that are much more complex to produce. The court follows the
expert's view that the panoramas in question cannot be regarded as "ordinary"
photographs since both special software and higher quality hardware are needed
for their production. The court uses the fact that the defendant has included
these panoramas in his project as an indication for the good quality of the
panoramas.
The court does not follow the defendant's argument that the court has to
decide
only about an infringement by downloading the panoramas. The downloaded
panoramas had been included in the project of the defendant and have thus been
in use. The fact that it is not certain - with one exception - whether the
included panoramas have been viewed by visitors of the Globorama is irrelevant
for determining whether they have been "in use".
For calculating the amount of damages, the court also refers to the concept of
"license analogy": Nobody who infringed the rights of others shall be in a
better position than those who obtained a license from the copyright holder.
The calculation of a customary remuneration (section 32 of the German
Copyright
Act) for a panorama one has to take into consideration both the customary
charges of the plaintiff and the customary charges on the market.
WWP had stipulated certain conditions of use. If the author or owner of the
copyright has published the conditions of use, it is not possible to undermine
those conditions by construing an extensive tacit consent to the use at other
conditions.
When dealing with intellectual property, the standard of diligence applicable
to
the user is very high. Thus anybody who uses material that is copyrighted, has
to make sure that the use occurs with the consent of the copyright owner.
The defendant concedes that the panoramas in question were downloaded. Under
German law (section 16 of the German Copyright Act), such download is
qualified
as a duplication.
The court disagrees with the defendant that the plaintiff tacitly consented to
the use. That fact that the plaintiff had made his panoramas public for
viewing
on the website of the WWP cannot be regarded as a tacit consent to the use of
these panoramas outside of the website of the WWP.
In Germany, panorama pictures are qualified as photographs according to
section
72 of the German Copyright Act at least. For the case at hand it was not
relevant whether panoramas can even be qualified as multimedia art or
photographic art. And thus there is no decision on this question by the court.
In June 2013 the ZKM has appealed against the sentence of the court. The court
of the
second instance (Landgericht) rejected the appeal and now the sentence is
valid.
The proceedings in court took more than 4 years, we are glad the it is over at
last
and the best thing is: WE HAVE WON !?
Carsten T. Rees
Reinhard Schmolze