[SystemSafety] Current Events

[Prof. Dr. Peter Bernard Ladkin]

On 2023-08-22 10:21 , Dewi Daniels wrote:
> 
> There are several companies that have realised an easy way to make money is to send a bot to crawl 
> the Internet searching for copyrighted images. One such company is PicRights, which has been engaged 
> by AP. 

Yes. It's worth everyone knowing about PicRights.

There are at least two PicRights, an Austrian company and a Swiss company. There is a lawyer in 
Bochum (about an hour's train journey away), Matthias Krach, who has dealt with them and advertises 
so on his WWW page. So there are not only lawyers specialising in this opportunistic pursuit, there 
are lawyers specialising in countering it.

In fact, PicRights in Switzerland contacted us first by email in March about the Concorde pic. They 
wanted about €90 for the "improper use" to that point. I talked to the Bochum lawyer Krach, who 
pointed out that PicRights are not a law firm with a license to practice in Germany, and paying them 
did not necessarily lead to indemnity from similar demands from a lawyer. Indeed, if we paid them 
money, then they could advise a German lawyer that had happened, who would then have evidence (not 
proof but evidence) that we tacitly had admitted fault by paying the money, and heshe could come 
after us for the same thing, which might then run into the €thousands.

Further, we didn't believe at the time that we were at fault, having checked out the law (UrhG §51). 
I talked to a Bielefeld lawyer who had worked for me 20 years ago on media stuff (German newspapers 
reporting something false about my research). He advised: ignore anything that does not come from a 
lawyer. Don't respond.

So, two conformant opinions: Lawyers are bound by explicit processes and rules against 
misrepresentation, and if you've dealt with a matter with a lawyer who has necessarily produced 
proof that he represents the "injured party", nobody else can repeat that with you. But if you deal 
with some non-legal performer, there is no guarantee that anything will be done and dusted.

We could have done in March what we did in July: taken down the pic. But, had we done that, 
PicRights could still have informed the Hamburg lawyer, who could still have come after us for 
exactly the same thing: the pic had been up; he had proof from PicRights, and that's all he needs to 
do exactly what he did do.

The Uni legal rep says he wished he had been informed of the earlier event with PicRights. Maybe so, 
but it is up to the Faculty to do that, and they hadn't. And, as just noted, I don't see that that 
would have helped.

> I think we will see a lot more of this behaviour.

I think so too.

> The claim that you can use an image in a document that you share for explicitly 
> scientific purposes with a select small number of other scientists, but you can't 
> then make that document publicly available on the Internet is only an opinion, the
> validity of which can only be established in a court of law. 

There have been plenty of court cases on it, I am told. The thing is that we are in a Roman law 
jurisdiction, in which precedence does not play the role it does in common-law jurisdictions.

Plus, going to court doesn't necessarily solve anything. It can in some cases screw things up 
royally. Take the Post Office Horizon scandal as a relatively recent example in Britain. I have, 
unfortunately, personal examples from Germany, but by no means as bad as POH.

This gets to be a bit off-topic, but Causalis has lots of experience working for lawyers; the legal 
bits of some engineering-safety work do get to be important.

There is one thing which everyone here might do well to understand. There is no such thing as "fair 
use" exceptions to copyright in Germany, as there are in the US and (I believe) the UK. Germany is 
not alone in this.

Let me go on (and on) about this at some length, for those who might be interested, and apologise to 
those who are not, who may stop reading right now.

Here's how it works in Roman law jurisdictions. A court's decision does not bind other courts in 
similar cases, although other decisions on similar cases must be taken into account. The first thing 
a lawyer will tell you is how cases like yours have played out in the past, and where (recall we 
have 16 different states). That by no means entails that your case will turn out similarly to any of 
them (as it does, by necessity, in common-law jurisdictions).

There is also the specific German legal process of Abmahnung ("warning"/"notification") and 
"Unterlassungserklärung" ("undertaking to desist"), which is part of what Brits call tort law but 
seems to me to be more general than copyright and torts. Fees are set: an "Abmahnung" comes to about 
€300, an "Unterlassungserklärung" to between €1000 and €2000 in general, depending on details. If 
there is a tort, the lawyer writing the Abmahnung must demonstrate that he is working on behalf of 
the "injured party", but there are some civil regulations whose violation is not quite a tort (it 
may be that it has the formal form of a tort, but in which the "injured party" is declared as 
"unknown" and there is obviously no requirement of proof of representation), so anybody, not just a 
lawyer, can write an Abmahnung in such cases.

And they do. If you offer wine for sale on the Internet, as two of my wine merchants do, the law 
says you must explicitly include the price per litre. Some cheaper wine is sold in litre bottles 
rather than the more usual 750ml. My wine merchant omitted the "litre price" in the given format for 
his offerings in litre bottles, because he is selling a litre and the price is overtly given. He got 
Abmahnungen from someone who crawls the Internet looking for such things. €300 per instance. That 
amounts to non-trivial money when there are 10-15 instances. Of course he got advice. The law is 
clear: the litre-price shall be included in the given format. The Abmahnung is correct. If you 
challenge it in court, you will summarily lose (and thereby get to pay not only your fees but the 
court fees as well as the legal fees of the Abmahner; plus the €300 heshe wanted in the first place).

What you could challenge in court is the total amount: if your Abmahner finds 300 such instances on 
your WWW site and challenges you for each one, and wants 300 x €300 = €90,000, then a judge will 
likely say that that is disproportionate and reduce the cost to, I dunno, a couple of thousand €.

I was advised there have been cases of such challenges with images.

I play Irish tunes once a month in a Session at the city-run Community Centre (FZZ) on the other 
side of town. The Session is free for musicians and listeners, as sessions are, but because 
refreshments are sold, the musician's copyright agency GEMA demands a list of the tunes played. 
Which someone during the session has to maintain. The FZZ pays GEMA a fee for this "service". When 
my band played, again for free, at a pub in Bielefeld, and at the Uni's "Night of Sounds", we had to 
submit a set list which was forwarded by the organiser to GEMA, along with the fee (yes, GEMA 
charges you money for the work *you* do).

This may seem like nutty bureaucracy, especially when you're filling out the silly forms in the 
middle of a session and no one can remember the names of the three tunes you've just played (which 
is often), but it has its justification, as follows.

Musicians who write songs and music are creatives, and earn money for their work. Call the composer 
A. If some other musician B covers A's song/tune somewhere in circumstances in which someone is 
making money, then A is entitled to the usual compensation/"licence fee". That is so pretty much 
everywhere, not just in Germany.

GEMA collects that as well as it can. It is empowered by law to do so, and venues comply. For 
professional musicians who play concerts with attendance fees, this is normal all over the world. 
Bars and cafes who play A's records as background music also have to report to GEMA and A gets an 
appropriate small fee. When we play in FZZ's cafe, the cafe operator is nominally making money from 
selling tea, coffee, sandwiches and cake (actually, she's not - she is doing it because it's a 
designated FZZ activity, which her contract commits her to support), so the heirs of all those 
anonymous tunesters in Francis O'Neill's 1903 Music of Ireland (collected in Chicago), as well as 
the heirs of James O'Neill (no relation) who prepared the arrangements, are all entitled to their 
penny. Except that is 120 years ago so no longer. But one might ask the Québecois fiddler Michel 
Bordeleau if he regularly gets a payment from GEMA from all the times his "Fleur de Mandragore" is 
played in German irish-music sessions. I'd be surprised if he did.

> These companies rely on the fact that it is cheaper to pay up than to contest in court.

As also the fact that such contests have mostly lost, in Germany.

> In this instance, I think the damage done to the safety community is far greater than the 
> supposed loss incurred by AP.

Yes, well, you and I and Bernd all agree heartily with that.

For my SSS'22 Keynote on the 2021 German and Belgian floods, I paid the German agency dpa (rather, 
their picture part, called picture-alliance) for three images that I felt were not only important 
illustrations but also rather startling, since the damage was far worse than what Brits may be used 
to (and Germans, French, Belgians, Italians and others too, for that matter). dpa wanted to know the 
specific use. I said: exclusively scientific; low(er)-quality reproduction in conference 
proceedings, distributed to attendees; occurrence in the slides in my talk; the proceedings 
available in potential perpetuity on the members-only WWW site.
They still wanted €224+. There were actually 6 or 7 pictures I wanted to use, but there is no way I 
was going to pay out upwards of €500. This agency does not sympathise with science. I am not sure 
they are even going to get any business of mine ever again (even though I do know photographers who 
would not be able to make a living if they didn't market through dpa).

PBL

Prof. i.R. Dr. Peter Bernard Ladkin, Bielefeld, Germany
Tel+msg +49 (0)521 880 7319  www.rvs-bi.de