[Chapter-delegates] Digital Life Documentary on BBC

[Chester Soong]

*This message was transferred with a trial version of CommuniGate(r) Pro*
talking about privacy and after death, here is an interesting case with 
a copyright twist. Thanks to my friend from the University of Hong Kong 
on his analysis...

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/05/15/man-commits-suicide-blames-ex-wife-in-suicide-note-ex-wife-takes-control-of-copyright-tries-to-get-note-and-mans-other-writings-removed-from-internet/?wprss=rss_national

"Man commits suicide, blames ex-wife in suicide note; ex-wife takes 
control of copyright, tries to get note (and man’s other writings) 
removed from Internet

So reports Mike Masnick (TechDirt). Here’s what apparently happened:

1. Chris Mackney was involved in various bitter battles against his 
ex-wife, Dina Mackney. He committed suicide and left an online suicide 
note posted to his Web site, blaming Dina. (I will mostly use the 
Mackneys’ first names here simply in order to avoid repetition and 
confusion.) Chris had also written various other things harshly 
criticizing her and others.

2. Dina Mackney got appointed administrator of Chris Mackney’s estate, 
presumably because his heirs are their underage children, and she is the 
guardian of the children. (I’m not a probate law expert, so I can’t 
speak to the soundness of this decision by a Virginia judge, applying 
Virginia law, but I will assume for the rest of the post that this 
appointment was legally valid.)

3. Dina Mackney then demanded that various sites take down Chris’s 
various writings, including his suicide note, on the grounds that she 
represents Chris’s estate, which owns the copyright in those writings.

Why the copyright twist? Dina might have plausible claims that Chris’s 
writings are libelous, or invade her or the children’s privacy, but 
given the federal 47 U.S.C. § 230 statute, Web sites that host 
user-posted writings are not liable for any defamation or invasions of 
privacy in those writings. (Chris would have been liable for them, and 
Chris’s estate might still be liable, but the sites would not be.) But 
under federal copyright law, the sites that host user-posted writings 
are potentially liable for copyright infringement in those writings. 
Taking control of the copyrights thus makes it much likelier that the 
hosting sites will indeed take down Chris’s works.

Note also that pretty much anything written down is presumptively 
protected by copyright; it doesn’t matter, for instance, that Chris’s 
works didn’t have a copyright notice on them, or weren’t registered at 
the time they were written.

4. Some sites, however, are refusing to take down the materials, arguing 
— soundly, I think — that their continued posting of the material is not 
a copyright infringement. (See Marc Randazza’s letter on behalf of the A 
Voice for Men site.) The main arguments are (a) fair use and (b) implied 
license.

a. The fair use argument, I think, is quite strong. The sites that are 
continuing to host Chris’s works aren’t deriving any material commercial 
advantage from them, and their continued hosting isn’t diminishing the 
commercial value of the works (which is nil). Moreover, Chris 
voluntarily published the works; these aren’t personal letters that were 
deliberately unpublished. As a result, I think the balance of the fair 
use factors is likely to cut in favor of the fair use (even though the 
site operators’ use is nontransformative, and reproduces the entirety of 
Chris’s work).

The strongest precedent for Dina would be Worldwide Church of God v. 
Philadelphia Church of God (9th Cir. 2000), which also involved the 
suppression of a dead author’s work by successors who didn’t endorse the 
work’s message. Herbert Armstrong had founded the Worldwide Church of 
God, and had written “Mystery of the Ages” (MOA) (some paragraph breaks 
added):

Armstrong wrote MOA, his final work, between 1984 and 1985. He completed 
it when he was ninety-two years old, shortly before his death. He 
copyrighted it in the name of WCG and published it in serial form in The 
Plain Truth magazine, distributed free of charge to approximately eight 
million people. In addition, WCG distributed over 1.24 million copies 
free of charge to employees and to viewers of WCG telecasts. In all, WCG 
put over nine million free copies of MOA into circulation.

Two years after Armstrong’s death, WCG decided to discontinue 
distribution of MOA for several reasons, including the fact that the 
Church’s positions on various doctrines such as divorce, remarriage, and 
divine healing had changed. The Church hoped to “prevent a transgression 
of conscience by proclaiming what the Church considered to be 
ecclesiastical error” espoused in MOA and it considered that Armstrong, 
who was ninety-two when he wrote MOA, conveyed outdated views that were 
racist in nature. Its Advisory Council of Elders indicated that the 
Church stopped distributing MOA because of “cultural standards of social 
sensitivity” and to avoid racial conflict. The Council noted, 
“Insensitivity in this area is contrary to the doctrinal program of WCG 
to promote racial healing and reconciliation among the races.”

WCG disposed of excess inventory copies of MOA and stopped distribution, 
but retained archival and research copies. WCG never sought to withdraw 
or destroy personal copies or copies held by public institutions or any 
public library, nor did it request that its members destroy their 
copies. WCG has indicated an interest in publishing an annotated MOA 
sometime in the future but has not yet begun work on it.

The Philadelphia Church of God sought to reprint MOA, but Worldwide 
Church of God — as the heir of Armstrong’s copyright — sued to stop 
that, and the Ninth Circuit agreed.:

The first factor calls for consideration of “the purposes and character 
of the use, including whether such use is of a commercial nature or is 
for nonprofit educational purposes.” “The central purpose of this 
investigation is to see, in Justice Story’s words, whether the new work 
merely ‘supersede[s] the objects’ of the original creation [citations 
omitted] or instead adds something new, with a further purpose or 
different character, altering the first with new expression, meaning, or 
message; it asks, in other words, whether and to what extent the new 
work is `transformative.’” … PCG’s copying of WCG’s MOA in its entirety 
bespeaks no “intellectual labor and judgment.” It merely “supersedes the 
object” of the original MOA, to serve religious practice and education. 
Although “transformative use is not absolutely necessary for a finding 
of fair use,” where the “use is for the same intrinsic purpose as [the 
copyright holder's] . . . such use seriously weakens a claimed fair use.” …

[Moreover,] MOA’s use unquestionably profits PCG by providing it at no 
cost with the core text essential to its members’ religious observance, 
by attracting through distribution of MOA new members who tithe ten 
percent of their income to PCG, and by enabling the ministry’s growth. 
During the time of PCG’s production and distribution of copies of MOA 
its membership grew to some seven thousand members….

The second statutory factor, “the nature of the copyrighted work,” turns 
on whether the work is informational or creative. While it may be viewed 
as “factual” by readers who share Armstrong’s religious beliefs, the 
creativity, imagination and originality embodied in MOA tilt the scale 
against fair use….

The third factor directs us to consider “the amount and substantiality 
of the portion used in relation to the copyrighted work as a whole.” PCG 
copied the entire MOA verbatim …. [In the Sony case,] the Supreme Court 
held that reproduction of the entire work “[did] not have its ordinary 
effect of militating against a finding of fair use” under the unique 
circumstances of that case, to wit: copying of videotapes for 
time-shifting for personal use to “enable[ ] a viewer to see such a work 
which he had been invited to witness in its entirety free of charge.” No 
such circumstances exist here to justify PCG’s reproduction of the 
entire work….

The fourth factor considers “the effect of the use upon the potential 
market for or value of the copyrighted work.” … [I]t cannot be inferred 
from that fact that the absence of a conventional market for a work, the 
copyright to which is held by a nonprofit, effectively deprives the 
holder of copyright protection…. The statute by its terms is not limited 
to market effect but includes also “the effect of the use on the value 
of the copyrighted work.” … “[E]ven copying for noncommercial purposes 
may impair the copyright holder’s ability to obtain the rewards that 
Congress intended him to have.” Those rewards need not be limited to 
monetary rewards; compensation may take a variety of forms

WCG points out that those who respond to PCG’s ads are the same people 
who would be interested in WCG’s planned annotated version or any future 
republication of the original version. With an annotated MOA, WCG hopes 
to reach out to those familiar with Armstrong’s teachings and those in 
the broader Christian community. PCG’s distribution of its unauthorized 
version of MOA thus harms WCG’s goodwill by diverting potential members 
and contributions from WCG…. [U]ndisputed evidence shows that 
individuals who received copies of MOA from PCG are present or could be 
potential adherents of WCG. MOA’s value is as a marketing device; that 
is how PCG uses it and both PCG and WCG are engaged in evangelizing in 
the Christian community.

PCG argues that WCG’s failure to exploit MOA for ten years and its lack 
of a concrete plan to publish a new version show that “MOA has no 
economic value to the WCG that the PCG’s dissemination of the work would 
adversely affect.” We disagree. Even an author who had disavowed any 
intention to publish his work during his lifetime was entitled to 
protection of his copyright, first, because the relevant consideration 
was the “potential market” and, second, because he has the right to 
change his mind….

I’m not sure the Ninth Circuit was correct here; but in any case, I 
think that, to the extent the Ninth Circuit’s position is defensible, it 
relies substantially on the commercial value of the work, both to the 
copier (there, PCG, which used the work to attract adherents and their 
tithes) and to the copyright owner (there, WCG, which at least plausibly 
claimed that it might at some point reissue an annotated version of the 
work and sell it). I don’t think this argument would prevail for 
commercially valueless works such as Chris’s suicide note and other 
writings, or for fundamentally noncommercial uses such as the host 
sites’ continued posting of those works.

b. Sites to which Chris posted his works may also be licensed to keep 
the works posted. Some sites may specifically provide in their Terms of 
Use that anyone using the site gives a perpetual, irrevocable, 
nonexclusive license to continue displaying whatever the user posted. 
(This doesn’t block copyright claims by third parties who claim that the 
user posted matters that he was never allowed to post; but it does block 
copyright claims by the user himself, and by the user’s successors.) 
Even in the absence of such a provision, a court might reasonably 
conclude that such a license is implied by the act of posting something 
(just as sending a letter to a newspaper that begins “Dear Editor” 
implicitly licenses the newspaper to publish the letter, and keep the 
letter up on its web site indefinitely).

c. More broadly, even sites to which Chris didn’t post the items, but 
which are reposting them in order to keep the items available in the 
face of Dina’s attempts to get them taken down, might well be able to 
claim implied license. When someone writes and posts something that a 
reasonable person would perceive as an attempt to get the widest 
possible audience for his message, I think a reasonable person could 
properly assume that the author is allowing others to copy it in a way 
that maximizes that audience. (Even if I’m mistaken on this implied 
license point, of course, such mirror sites would still be able to claim 
fair use, which is one reason I started the discussion with the fair use 
defense.)"

Someone I know in HK also started a business coulpe years back on 
after-death service for helping to manage their "clients" online account 
and privacy after death. But with HK's privacy law does not protect 
privacy after death, so I am not sure how popular their services are.

Enjoy reading...

Chester

On 01/08/2014 12:45 AM, Joly MacFie wrote:
> *This message was transferred with a trial version of CommuniGate(r) Pro*
> There was a Swedish startup a few years back - MY Web Will - which
> looked to tackle the problem Appears to have gone belly up.
>
> I think the key phrase is "digital afterlife". There is a book,
> already.. http://www.yourdigitalafterlife.com/
>
> j
>
> On Thu, Jul 31, 2014 at 10:34 AM, Glenn McKnight
> <mcknight.glenn at gmail.com> wrote:
>> BBC  Audio Documentary on Digital Life
>>
>> http://www.bbc.co.uk/programmes/b01rl5r4
>>
>>
>> ABSTRACT
>>
>> Who do you want to be able to read your old emails when you die? Are the
>> dead entitled to privacy? Jolyon Jenkins reports on the increasingly
>> contentious issue of our digital legacy.
>>
>> As we lead more of our lives online, we leave behind an ever bigger digital
>> footprint when we go. There are the public parts - the blogs, the tweets,
>> the forum posts - but also the private things such as the emails stored on
>> servers owned by companies like Google. Sorting out the digital legacy is
>> becoming as onerous as being a traditional executor.
>>
>> But it brings entirely new problems: in the case of people who have died
>> suddenly or mysteriously, relatives sometimes feel that they are entitled to
>> get access to the email accounts of dead person to try to find a clue to
>> what was happening in their lives. But many email providers resist handing
>> over this material because of a confidentiality clause in their terms and
>> conditions. Jolyon Jenkins talks to the Stassen family in Wisconsin who took
>> both Facebook and Google to court to gain access to the accounts of their
>> son Benjamin who committed suicide. He also talks to Esther in Kenya who
>> similarly would like to get into her dead sister's email account to try to
>> find a clue to her unexplained death. But unlike the Stassens, Esther has
>> had no luck.
>>
>> These are uncharted waters, where analogies with old technology quickly
>> break down, where the principles are unclear, and where important private
>> and personal matters seem to be left to the discretion of big corporations.
>>
>> Producer: Jolyon Jenkins.
>>
>> Glenn McKnight
>> mcknight.glenn at gmail.com
>> skype  gmcknight
>> twitter gmcknight
>> .
>>
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>
>
>