Facebook Lawsuit

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6079_Smith_W

But jas, it is only useful in shoring up an idea that is completely false because it is a comfortable illusion. What is useful about that?

I have heard plenty of news reports about people needing to be careful to protect their stuff when they store it in a place they don't control. There is a lawsuit against the FBI for data that got trashed when they shut down Megaupload

http://techcrunch.com/2012/01/26/pirate-parties-organizing-lawsuit-again...

But it's doubtful any of that will restore the lost information, it doesn't change the fact that people need to beware and not have any illusions about trusting data to free services, and it has nothing to do with the core issues in this case, which have to do with how far a third party can go in limiting other people's expression and essentially changing the public record.

And far from calling it property, I'd suggest that discourse in social networking sites are part of the de facto public record, despite the fact that they are on sites which are privately owned.

 

radiorahim radiorahim's picture

@jas The issue here is copyright and who owns the copyright.   The term "Intellectual Property" is a loaded term that expresses certain values just like the corporate media term "union boss" does.   Both terms are bullshit.

 

jas

@ rr:  Is it the notion of property extended to intangibles that you disagree with?

I don't have a problem seeing copyright as property. Intellectual property.  Patents also, in my mind, would fall under this general descriptor. That's why I have no problem with the term, as a broad description encompassing many different types. I haven't come across any for whom copyright is part of their livelihood objecting to the term either.

 

6079_Smith_W

jas wrote:

 I haven't come across any for whom copyright is part of their livelihood objecting to the term either.

Whether you have met someone or not, not all people who work with matters of copyright support that. And the fact that someone might support a more mercenary approach in these matters doesn't make it right.

http://www.michaelgeist.ca/content/view/6818/125/

We don't deflect criticism of military spending by saying that the army likes it.

But I fail to see what this has to do with what we are talking about. FB's terms say thay you still "own" your material, but that's hardly a court ruling; it's really them just pointing out that they DON'T claim ownership.

As far as I know no one has copyrighted anything here, and the only mention of using material commercially is FB saying they have the right to use some of your stuff in exchange for parking your LOL Cats and pictures of what you eat on their service.

Your posted picture might be copyrighted, but your conversation?The notion that all our respective words in this conversation are our property that we have to guard against misuse, and that we (or some offended relative) can rip out of the website at some later date is a libertarian nightmare.

Or maybe we can all start suing each other for quoting without permission.

Social media - insofar as it concerns us users - is a commons, not some litigious, territorial  freemarket. If it were that it would have no purpose.

And again, the Brazilian case wasn't argued on the basis of presumed ownership, but rather damages. Presumably anyone could could make that claim, not just a relative.

 

 

 

 

kropotkin1951 kropotkin1951's picture

6079_Smith_W wrote:

Social media - insofar as it concerns us users - is a commons, not some litigious, territorial  freemarket. If it were that it would have no purpose.

And again, the Brazilian case wasn't argued on the basis of presumed ownership, but rather damages. Presumably anyone could could make that claim, not just a relative.

Social media like babble for instance is not a commons it is a private website owned and operated by its owners.  It is not a free market either it is a private space that we are granted permission to use as long as we follow the directions given by the owners paid employees. However if I libeled someone on this site not only will it be removed by the moderators it would give the libeled person the right to sue me if I refused to retract the libelous statement.

Could you please post the links to the in depth analysis of the legal issues in the case because frankly I have not seen the article and don't understand their legal system well enough to know where in their system the concepts of what we call tort law and property law intersect. I have not seen any article that explains what statute was relied on in this lawsuit. Even in Canada the civil law system is far different than the common law in the tort and property areas.

6079_Smith_W

Again, k. I'd turn that request back on you.

No I haven't read the ruling, but every report of the case points to it being over the mother's suffering, not ownership:

Quote:

Facebook memorial pages go against “the right of personal dignity and inflicted great suffering on the mother, due to the premature death of her only child”.

Facebook in the meantime is violating its own terms of service. The company’s policy specifically states that memorial pages can be taken down at the request of a “verified family member.”

Again, that last bit is their terms of service, which are an agreement with the client. They aren't the law, they don't mean any more than the statements on ownership, and given that no one has paid for any service, I wonder how FB can be held to them in court.

Was that part of the grounds? You tell me.

http://socialnewsdaily.com/13358/judge-orders-painful-facebook-memorial-page-to-be-taken-down/#0pmTHMZUR0Vve37p.99

 

And as for the nature of social media, yes I know babble is a private site; I have made the point a few times. Thing is, like any other site, or physical spaces like malls and some parks, they are de facto public spaces despite the letter of the law. I think all of us here expect that to be applied with a bit of temperance. I certainly read enough complaining about it.

In short, k, the difference is I am not arguing in favour of that strict interpretation. I might acknowledge that mall cops have the power to throw people out for vagrancy, but I think it an injustice. Same thing for the interpretation of social media that says some relative of mine (or someone who happens to be offended by my words and has enough money for a lawyer) can come along someday and re-edit everything I have written here.

It is an extremely hard-line and IMO dangerous interpretation of the situation.

 

kropotkin1951 kropotkin1951's picture

6079_Smith_W wrote:

Same thing for the interpretation of social media that says some relative of mine (or someone who happens to be offended by my words and has enough money for a lawyer) can come along someday and re-edit everything I have written here.

It is an extremely hard-line and IMO dangerous interpretation of the situation.

You are right that if someone had asked to reedit the posts on Facebook it would be a very strange and outrageous thing.  Fortunately the mother did not ask to reedit anything just to be have it removed all together.  Two totally different things. But you really pommeled the snot out of that straw man

Quote:

Judge Arantes says Facebook memorial pages go against “the right of personal dignity and inflicted great suffering on the mother, due to the premature death of her only child”.

My problem is that we don't have a right of personal dignity in Canadian law so I have no idea what arguments were put before the courts and under what statute.  I am pretty sure they do not use the British common law of torts like we do in most of Canada which is what one sues under here. Of course while some suffering is compensated for in Canada other suffering would not have the basis for a law suit.

My point in this thread is that as a matter of principle I think that the estate of a person should have the rights that the person had before they died not a giant corporation like Facebook.  That would include the right to remove their Facebook page and not have the material used for another page designed and controlled by the corporation.

6079_Smith_W

Last time I checked, removal of copy was editing. Or redaction, if you prefer, without the honesty of the giant black marker to let you know that someone has fucked with it.

Or maybe Yezhov's magic trick is completely legitimate, since the image is owned by The People.

And I'm more concerned about someone like Stephen Harper or Maurice Mom Boucher having a legal foundation for shutting up others based on what they consider their "personal dignity".

For the umpteenth time, was there any claim of slander, humiliation or false statement here? Is there anything other than someone getting a headache over others' honest expressions of appreciation?

 

kropotkin1951 kropotkin1951's picture

6079_Smith_W wrote:

For the umpteenth time, was there any claim of slander, humiliation or false statement here? Is there anything other than someone getting a headache over others' honest expressions of appreciation?

Who knows?  Not you and not me that's for sure.  Any other rhetorical questions I can answer for you?

kropotkin1951 kropotkin1951's picture

The quote from the Judge is the only direct quote that I can find about this case.I don't know what he means by the right of personal dignity but that is what he was reported as saying.  You can twist it them into anything you want but his words are his words.

Quote:

Judge Arantes said making the girl's profile into a "memorial wall" went against "the right of personal dignity and inflicted great suffering on the mother, due to the premature death of her only child".

kropotkin1951 kropotkin1951's picture

dp

6079_Smith_W

@ k

I agree it's hypothetical in that you raised the question of the right to "personal dignity" and others have made similar arguments here, although it has nothing to do with the case as argued.

So I'm just asking what that concern is based on. How is anyone's dignity being undermined? As far as I know this concerns people expressing good feeling toward the deceased. At least I haven't read anything to the contrary.

(edit)

not paying attention.. had my glasses off and read "hypothetical" for "rhetorical" but either applies, as does my point.

 

 

6079_Smith_W

Ooops. Well you are right, and sorry for the mistake. 

But again.... How has anyone's dignity been undermined? 

kropotkin1951 kropotkin1951's picture

I have no idea what their constitution sets out as fundamental legal rights nor do I know which of the 2000 articles in their Civil Code were argued in this case. Without that knowledge it is impossible to say how anyone's personal dignity was injured, in the context of Brazilian law.

Quote:

Brazil is organized as a federative republic and the legal system is codified. Laws are issued by the federal government, the states and municipalities within their respective spheres of authority. The Brazilian legal system is of Roman tradition and all laws destined to regulate and discipline all kinds of situations must have been previously written and made public. The jurisprudence and academic opinions are very important sources in the making and interpretation of the laws, but aren’t of obligatory observance by all.

...

The head of the Brazilian legal system is the Federal Constitution. In its 250 articles one will find the citizens' fundamental rights and guarantees, the political and administrative organization of the Federal Republic of Brazil, the individual spheres of authority of the Executive, Legislative and Judicial branches, the outlines of the Brazilian tax system and the fundamental labor rights, among other matters. Constitutional rulings are hierarchically superior to those of any other law.

Besides the Federal Constitution, the main legal documents in Brazil are the Codes. The most important are the Civil Code, the Tax Code, the Penal Code and the Civil Procedure Code. The Civil Code comprises over 2000 articles regulating matters such as Obligations and Contracts, Businesses and Corporations, Real Estate and related property rights, and many others. The Tax Code defines the main Brazilian tax regulations, which are complemented by many Federal, State and Municipal laws. The Penal Code brings the definitions of conducts considered crimes and the  punishments for anyone fitting the respective legal descriptions. Finally, the Civil Procedure Code regulates the due process of law.

http://www.marsiglialaw.com/articles/brazilian-legal-system.html

6079_Smith_W

Well however they justify it I suppose it could have some progressive applications. I would love to have the power to erase Stephen Harper from the pages of history just because he gives me a headache.

If he doesn't erase me first, that is.

 

jas

kropotkin1951 wrote:

If I libeled someone on this site not only will it be removed by the moderators it would give the libeled person the right to sue me if I refused to retract the libelous statement.

Does it give them the right to sue you, or the publisher? In this case, Rabble.ca.

6079_Smith_W

*sigh*

The plaintiff can name everyone connected in the suit, right down to the printer and the newspaper deliverer. The rationale behind that is to not leave any stone unturned in the quest for settlement money.

Generally, online libel is not yet treated with the same severity as broadcast and print.

But again, no one has been libeled here, and reducing it to that, and to litigation, is the wrong way to look at this, IMO. I have no interest in twisting this conversation into the territory of those whose goal is to lock down the internet.

jas

As for the question of rights to dignity, I took it to mean the right of the deceased.

Not sure if this has any relevance whatsoever, but it may be of interest to some: Protecting Your Personality Rights in Canada: A Matter of Property or Privacy?

It includes a Quebec case as well, which may or may not offer insight into the Brazilian ruling:

Quote:
The court was very clear that it viewed the right to one’s image as an element of the right to privacy in Quebec.93 Further, the court stated that the right to privacy has an extrapatrimonial and a patrimonial aspect, consistent with the liberal interpretation that had been given to the right to privacy in the past.94 Thus, the court recognized that there is a proprietary element to the right to privacy, which covers the right to one’s personality. On that basis, it is possible to conclude that in appropriate circumstances, Quebec law would allow an action to be taken by the estate of a deceased person, provided that it could be proved that there was a patrimonial aspect at stake.

kropotkin1951 kropotkin1951's picture

Generally on a site like babble if the moderators take a libelous post down immediately then there is little chance a suit would be successful against it.  If they left it up after someone requested it be removed then that would be a different story.  Libel law though is a very tricky area and it is not an easy thing to prove and there are many cases where it has been proven but the damages awarded have been nominal.

6079_Smith_W

Yup.It is a funny game.

Usually all it takes is a retraction, or at most an apology. But of course it is ultimately up to the plaintiff how much s/he wants to gamble, as Pat Martin has learned. On the other hand, if a plaintiff has unlimited resources some accused parties can be broken simply by dragging them in the courtroom door. That's why so many make their real money by extorting settlements.

And of course it ultimately hangs on presumed damages and is up to a judge if it comes to awarding anything.

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