Utah Sheriff Claims Copyright On Mugshot Photos To Avoid Releasing Them
from the promote-the-progress? dept
velox alerts us to the latest example of government officials abusing copyright law (or claims of copyright law) to avoid basic transparency. And this one's quite incredible. Kyle Pell, who runs the website bustedmugshots.com, is involved in a lawsuit after Salt Lake County Sheriff Jim Winder stopped releasing mugshots by claiming he held the copyright on them. Yes, the police, claiming copyright on mugshots. Winder's heart may be in the right place, arguing that sites like that are unfair, but that's no excuse for his own actions."I believe that the practice of using these mug shots to belittle and abuse our citizens is immoral and repugnant," he said when discussing the websites in general during an interview Tuesday.In other words, he's admitting that his copyright claim has nothing to do with what copyright law is for, but everything to do with censoring a website. Yeah, that's probably not a good idea.
"A compassionate society does not utilize the scarlet letter," he said
This is not what copyright law is intended for, and the use as such is a clear abuse of the law. Of course, whether or not there's even a legitimate copyright there is a bit of somewhat unsettled law. While it's clear that works created by the federal government are automatically public domain, it's a little fuzzier when you get down to local governments. Many local governments, smartly, take the position that they face the same rules as the federal government, and assume that such documents are public, but it's not entirely clear under the law if this is necessarily the case. Go down to the level of a sheriff's department, and he could potentially argue that the prohibition on copyrighting works created by government don't apply. It's a weak argument, to be sure, and one that I doubt would hold up in court, but it's not entirely settled.
This is unfortunate, of course. We've long argued -- and believe strongly -- that all government created works should be public domain. They don't need the copyright incentive to be created, obviously. Furthermore, mugshots have long been seen as a part of the public record. To retroactively claim copyright on them is just bizarre. There's clearly no copyright interest in the photos. They weren't created because of copyright. The government isn't using them to promote greater public learning or to support more content creation. It's flat out using it to censor a website that it doesn't like. That should mean that even if a court unfortunately finds that the Sheriff can claim copyright, opening his mouth to flat out say that he's doing it to censor the website probably undermines his argument, as it shows a government deliberately blocking someone's speech.
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Filed Under: copyright, kyle pell, mugshots, public domain, public records, utah
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Re:
Of course he hates and wants to end all copyright. He's just too chicken shit to admit it or discuss it directly. He LIVES for stories like this, which are the exception and not the rule, where he can go off on a rant about how someone is abusing copyright. He MUST discredit copyright whenever possible. It's what he lives for. Discuss copyright in a rational way? Nope. Just idiotic hit pieces like this. No time for a reasoned discussion. No time for honesty. Just Pirate Mike being himself. He will NEVER have a direct and honest discussion about his beliefs about copyright. He's too ashamed of his own beliefs.
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Like Prenda & Co.? Like Twisted Sister (although I think this was a bad case of derpitis)?
There are plenty of examples of poor usage of copyright and not enough of proper usage because copyright is so very much f'd up, thanks to successive adjustments that do not benefit the public (which should be the primary stakeholder in the discussion and not the ignored stakeholder).
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Come back when you've got something ORIGINAL to say (what, a copyright supporter say something original? The horror!)
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His comments are all the verbal equivalent of diarrhea.
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And you should stop complaining. Just because Masnick has become a discredited laughingstock doesn't mean that maintenance isn't required to make sure it isn't forgotten.
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Re: Re: Re: Re: Re:
Look at the readership for this and other tech sites that routinely report on and discuss abuses of copyright and other IP laws. It's not just Mike on this one site.
The trolling, such as yours and AJ's, is more prevalent here due to the open commenting policy.
But, make no mistake, the only discrediting that's going on is for copyright maximalists such as yourself and AJ, who are attempting to push an agenda that favors a well moneyed lobby of multi-national IP based companies that have corrupted numerous governments to buy laws that favor them over the benefit of the public.
Everyone sees through it to what it is. An attempt to ensure that abusive IP laws are never ever reigned in.
Carry on.
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Please provide evidence of this claim.
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He won't ever do that. Why? Just replace the name "Pirate Mike" in all of his comments, especially the rant above, with the real name of the Anonymous Coward who posted it. Bawk bawk bawk indeed lol.
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You're either a drone, troll or a paid shill and I wouldn't blame anyone for never responding to you again.
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He's overflowing with pure hate, so much so that it has clearly driven him insane, that's why. He doesn't care one iota about the copyright industry or law, he only cares about how his "rights" have been "violated" and getting revenge for that. It's a super intense form of persecution complex really.
As is typical for someone dealing with a mental illness of this magnitude, he suffers from paranoid delusions and as a result tends to automatically lump people he decides he doesn't like into the same group as those he sees as guilty, even if they've never actually done anything wrong. His fixation on Mike is a perfect example of this. He would burn down an apartment complex full of innocent people if it meant killing just one pirate because for him the ends always justify the means.
In other words he's about as morally bankrupt as they come, far more so than any so called pirate, yet completely unable to see it. The evidence is all there in every post he has ever made on TechDirt. If anything we should pity him because his future is no doubt very bleak. He'll most likely be institutionalized at some point in his life, provided he doesn't hang himself first that is. I honestly wish I could help him, but alas he is just too much of a coward to admit he has a serious problem and needs such help.
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Well, if one of you guys actually provided an intelligent, reasoned counterpoint instead of whining and name calling peppered with lies and deflections, maybe that time would appear.
The ball's in your court.
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In your blind rage you might have missed that this post doesn't discredit copyright at all, or even call for any changes to copyright law other than clarifying the logical assumption that local governments shouldn't be able to claim copyright on their creations, as per the federal government.
For someone who clearly loves copyright, you're strangely at ease with such an obvious example of it's abuse, especially since it's the government censoring public info. Says a lot about you...
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Re: Re: Re: to JMT
Although Mike often does attempt to discredit copyright, that may not have been the specific case here and that was not the point I made in my comments. Mike did misstate the law. That does not discredit him across the board but it does at least somewhat diminish his position, and the unqualified assertions made, on this issue. In my estimation, Mike can take withstand the criticism.
If �local governments shouldn't be able to claim copyright on their creations� that is far from an obvious logical assumption. It is not the law as determined by multiple elected Congresses, and as interpreted by the courts. The fact that states and localities are able to claim copyright ownership of their works is consistent with Federalism. Presumably you advocate that states should have no such rights, which would require a change in law. Good luck� I suggest there are other more worthwhile reforms to pursue in the area of copyright law.
I will not shy away from an appreciation for copyright law. It is an area of the law that has accomplished much good. It is not perfect.
I don�t think Sheriff Winder�s use constitutes abuse. That is largely an issue regarding the roles of shame and forgiveness in Salt Lake County, rather than copyright -- an interesting discussion has ensued in the comments on forgiveness and shame. I am confident that the people of Salt Lake County are well equipped to decide whether they think Sheriff Winder�s actions are proper. There are elections and if by some strange circumstance this issue tips the polls, it may be remedied according to the will of the people. Like it or not, in terms of current copyright law, the government of Salt Lake County owns the property at issue, mug shots.
I would wager you would be surprised about my positions on intellectual property law. I am knowledgeable of intellectual property law, at least more so than most. And, I am a relatively open minded person.
Today�s comments were the first I have posted. I think I may post some more. Maybe I will learn that I am wrong on several accounts and will learn more about other reasoned views. Regardless, I sincerely hope that accuracy, civility and reasoned views prevail.
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Re: Re: Re: Re: to JMT
You're saying his copyright claim is related to the issues of shame and abuse, which have nothing to do with copyright law, and at the same time that that use is not an abuse of copyright law? Maybe I'm misunderstanding you.
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Re: Re: Re: Re: Re: to JMT to nasch
I appreciate you pointing out the lack of clarity.
I don�t think Sheriff Winder�s use constitutes abuse OF COPYRIGHT. THE MORE INTERESTING ISSUES ARE THE issue(S) regarding the roles of shame and forgiveness in Salt Lake County, rather than copyright -- an interesting discussion has ensued in the comments on forgiveness and shame. I am confident that the people of Salt Lake County are well equipped to decide whether they think Sheriff Winder�s actions are proper. There are elections and if by some strange circumstance this issue tips the polls, it may be remedied according to the will of the people. Like it or not, in terms of current copyright law, the government of Salt Lake County owns the property at issue, mug shots.
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Re: Re: Re: Re: to JMT
Unless you're the AC who posted the comment I was replying to, I completely agree.
"I don�t think Sheriff Winder�s use constitutes abuse. That is largely an issue regarding the roles of shame and forgiveness in Salt Lake County, rather than copyright..."
Copyright has a clearly defined purpose, and it's not for censoring websites officialdom don't like. Quoting Mike from his post; "There's clearly no copyright interest in the photos. They weren't created because of copyright. The government isn't using them to promote greater public learning or to support more content creation." The use of copyright law to suppress speech is one of the reasons why respect for copyright law is at an all-time low and still falling.
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I'm still waiting for you to back up your claim that I abuse the law for profit. Three years and yet no proof and no retraction of your baseless claim. Bawk, bawk, bawk.
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http://www.youtube.com/watch?v=TiPeBmmBN_Q
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You have just given implied permission to Mike to publicly disclose your identity, if he is aware of it.
It is, after all, a requirement for "backing up the claim that you abuse the law for profit."
If you don't think so, we'll take it as "please, oh please don't back up your claim that I abuse the law for profit."
Thank you.
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But . . . not having public access to police mugshots does make it harder to keep track of what my, let's say, "friends," for lack of a better term, have been up to. Better than facebook.
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On the other hand, I agree with your that mugshots aren't a particularly inspired form of "art."
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Mike's focus on works created by the federal government was clearly (at least to me) referring to 17 USC 105. I commented further with support for the notion that Mike is in fact wrong.
Your point regarding eligibility for copyright protection based on the lack of creativity of mug shots is well taken. I would likely find myself strongly supporting your view that copyright protection may not extend to a mug shot. Since Sheriff Winder seemingly won't release the photos, I guess it is tough to argue whether the unseen photos are eligible for copyright protection.
Despite the side I would take as a policy matter (against copyright protection), I think the current law would generally find mug shots to be copyrightable.
A dedicated copyright claimant would be able to make all sorts of arguments for copyright protection, such as that make-up, facial expression and a whole host of other factors could go toward the originality and creative expression in the photograph.
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Not copyright, but...
Now if the public records laws explicitly state the data elements entitled to protection and do not specifically include offender photos, this guy is screwed, no matter what his intentions are.
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Re: Not copyright, but...
However copyright law is not the appropriate tool.
Perhaps the sheriff should find some excuse to arrest the owner of bustedmugshots and then put his mugshot on an official site until he closes bustedmugshots.com.
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Re: Not copyright, but...
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Any coverage is good coverage when you want to make a point.
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Re: Re: Re: Not copyright, but...
Get evidence that they are breaking the law, lobby for the law to be changed, but without evidence of illegal acts, possibly after a law change if they continue as they are, put up with them.
Vigilantism by law officers soon destroys all respect for the law.
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People in the US convicted of crimes are FAR more likely then in other first world countries to go back to committing more crimes when released. Part of the problem is how it's next to impossible to get a bunch jobs if you have a criminal record, and if you broke the law say to steal before because you didn't have the money to support yourself... well that's just reinforcing a never ending loop.
And then there's crimes that just an accusation of it with zero evidence will turn you into a pariah, like child molestation.
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Copyright is common law, and Sheriff here acts for public good.
I form my opinions before reading comments: lucky so this time as the fanboys go barking happily off on the first scent of sanity that they pick up, solely in order to drown it out with sheer yapping.
^^^ "one of the other Blues" -- Sheesh. You kids really object to any disagreement here. I try every day to show how you long to suppress speech -- WORSE than those you call "copyright maximalists" do because this is supposedly a forum for discussion -- but you've gone blind from masnicking and can't see the obvious.
By the way, masnicking is defined by Glenn Greenwald: "daily spurts of short and trivial traffic-generating items".
http://www.guardian.co.uk/commentisfree/2013/jun/04/reader-funded-journalism
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Re: Copyright is common law, and Sheriff here acts for public good.
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Re: Copyright is common law, and Sheriff here acts for public good.
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Re: Copyright is common law, and Sheriff here acts for public good.
Holy cow, HOLD THE PRESS! This just in....
"I form my opinions before reading comments"
This is my shocked face -.-
"The subject line is what I decided"
Also the only part where you were fully and completely on topic. (which is probably why you don't get many people to talk with you rather than berate you).
"Copyright is common law, and Sheriff here acts for public good."
Common law or not isn't important. What is important is that this is an obvious abuse of copyright (whether you are or aren't a maximalist). While I agree the Sheriff is acting for the public good, you need to do so in a legal way. Simply abusing the law because it does the public good isn't right. Either get the guy on another law or make a law to stop it. Don't go around the law to stop free speech as now the guy who runs the website has grounds for a law suit for stifling his free speech and looks like a victim.
Your turn. Can we have a discussion or will we slip back to "masnicking" and (I'll use the term) "AJ/OOTBing"?
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Re: Copyright is common law, and Sheriff here acts for public good.
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Re: Copyright is common law, and Sheriff here acts for public good.
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bustedmugshots.com is a PAY SITE!
Mostly because I don't want to pay and wanted to search all my friends names...
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mike is wrong
What support might you have for that statement?
Your policy arguments of what you believe should be the case do not change the current law. Offering such misinformation does not even appear to serve the goal of enactment of the position you desire.
It is true that the nature of the work, plays a significant role in whether a use is fair, but the works at issue ARE protected by copyright law.
It is also true that there are alternative policy grounds that might indicate against certain uses being found infringing. That said, I doubt the uses by the shakedown artists at issue would prevail on fair use grounds even if access to the works was provided.
Sherriff Winder is right on� As an elected representative of the copyright owning entity, he has every right to prevent works from being used in a way that are viewed as contrary to the interests of the represented community. I would wager that his invocation of legitimately held rights, and his view of how his community should act as a �compassionate society,� will win the day, and rightfully so.
I would note that even if state and local works were not protected by Federal copyright law, they would likely be eligible for common law protection, states rights and all...
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Re: mike is wrong
When "doubt" is right there in the copyright office's rule for accepting such registrations, I think "unclear" and/or "fuzzy" are quite accurate depictions of the status of the law
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Re: mike is wrong
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Re: Re: mike is wrong
The prohibition on copyright protection for works of the United States Government �is the law with respect to work of the United States government (17 U.S.C. � 105), but there is no such provision relating to state governments. The statute relating to copyrights, 17 U.S.C. � 102, is not restricted to private parties and there is no reason to believe that such a restriction should be implied. In fact, the opposite inference is required when only one specific governmental entity, the United States of America, is excluded from the protection of the Act.�
See, National Conference of Bar Examiners v. Multistate Legal Studies, Inc., 495 F. Supp. 34 (N.D. Ill. 1980), Affirmed, 692 F.2d 478 (7th Cir. 1982) .
And, �section 105 of the new statute, and section 8 of the old statute apply by their terms only to the federal government, not to the state governments. Works of state governments are therefore left available for copyright protection by the state or the individual author, depending on state law and policy, and "subject to exceptions dictated by public policy with respect to such publications as statutes and judicial opinions."
See, Building Officials & Code Adm. v. Code Technology, Inc., 628 F.2d 730, 735-736 (1st Cir. Mass. 1980)
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Re: mike is wrong
I agree with you. They are obviously not copyrightable. A mugshot is a government record, and government records are not "works" as covered by copyright law.
To flip it around, if mugshots are copyrighted, so are deeds of trust, marriage licenses, property records, police reports, etc. etc.
Stating this obvious fact, which is crucial to our liberty, not not in any way diminish copyright law for those it actually addresses.
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So is this guy an advocate for ending sex offender registries and felony labeling? If not, he is a hypocrite and needs to rethink his position.
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A person arrested is not necessarily charged. A person charged is not necessarily convicted. And a person convicted is subject to legally sanctioned penalty. Sex offender registries and felony records are, whether one likes them or not, legally sanctioned punishments.
Public humiliation, or the threat of public humiliation used for purposes of extortion are vigilantism or even approaching blackmail in the case of the for-profit mugshot sites that let you pay for removal.
Again, keep in mind that entirely innocent people can be arrested. And many people are arrested for very minor crimes. If you want public humiliation in addition to fines and jail to be part of the legal process, you should lobby your government for that.
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Both actions (putting convicts on a sex offender registry and publishing mug shots) are legally sanctioned.
Both actions "belittle and abuse our citizens", including citizens who may not be guilty in the way that the actions imply.
A consistent person would consider them both acceptable, or both unacceptable, equally.
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Putting someone on a lifetime sex offender registry or labeling them a felon does much the same thing. Felons have trouble getting jobs. Sex offenders have trouble finding housing. Both labeling systems result in undue hardships and ostracizing of the person labeled.
If ind it hard to understand how a "compassionate society" would endorse either scenario. I find it hard to understand how someone could advocate against a site that publishes mugshots, claiming that it is a form of scarlet lettering, while supporting a "justice" system that does far more damage.
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I think that society will eventually have to come to grips with this and decide what it really means to forgive. Much of what passed for forgiveness from society in the pre-internet age was simply forgetting due to the lack of access to old information. Now that the events of 20+ years ago are no more than a few key clicks away, we need to decide whether we are really going to forgive someone who has "paid their debt to society". We also need to decide what that debt really is.
The Scarlett Letter needs an update.
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But in reality, the norms should adjust. When every candidate for a job or for office, every actor and singer and olympic athlete, has a few photos of them holding a whiskey bottle and a bong, society simply won't be able to condemn such activity so harshly. Indeed, people who don't have a little colour showing through their facade will probably seem eerily suspect (as they do already in extreme cases)
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There are people who actually don't drink, do drugs, or cheat on their spouses, you know.
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The same way that anyone without an FB page will be 'assumed' to be 'hiding' something by unscrupulous employers...
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No, but the vast majority of people have at some point in their life (most often high school and/or college) done a few things that right now would be considered embarrassing or scandalous for a public figure. Drinking, drugs and adultery are certainly among the most common, but there are plenty of others like questionable activism/affiliation, "deviant" sexual behaviour of some brand or another, an outburst of violence, cheating at a test or a game...
Personally, I'm not sure someone who has lived their life without any missteps is capable of understanding, much less leading, a populace made up mostly of imperfect people.
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What a guy
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Interesting timing...
Does UT take DNA (yet)? If so, it would be especially galling for the same sheriff who is moaning about arrestees' privacy interests forcibly taking even more data about/from them...
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Gosh, what a shock!
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I'm sorry. "Speech"? This website sounds like it posts mugshots of people and then accepts money to take them down. What this sheriff SHOULD be doing is pushing for extortion charges.
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A little public shame...
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Re: A little public shame...
These are people who have been arrested. They are still presumed innocent at the time of the mug shots.
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Already a Utah Law that may have applied.
The Sheriff merely needed to cite this law but instead made this story much bigger than it would have been by citing copyright. Sheriff Winder meet Streisand.
http://le.utah.gov/~2013/bills/hbillenr/HB0408.htm
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Public domain vs public knowledge
Most states have publicity laws. A news agency can publish such information, HOWEVER generally that information must be 1. Factual (if the charges are dropped or changed it is the RESPONSIBILITY of the publisher to KNOW this and tell of it (Federal guidelines and none of these sites do) 2. It must be NEWSWORTHY and the person must be newsworthy (there is nothing newsworthy after even a few weeks regarding an arrest, certainly after conviction or dismissal the arrest is irrelevant) 3. It must be TIMELY (certainly republishing information 5 or 10 years after an arrest is NOT timely in any manner, even after any court decisions the arrest is irrelevant). 4. The publishing can not be used in a commercial manner of name and likeness. (certainly a web search that uses a name and likeness to draw viewers to its website where pay per click is earned is in fact use in advertising). 5. Can not be used for illegal purposes (extorting money to remove the information is in fact extortion, if it was a news agency they would not remove any information, EVER.)
However news agencies remove the information from their websites after one to 6 weeks on the average, if it was used in print media that would be accessible ONLY in their morgue onsite. This means that they are rational, reasonable and following the law, their business is NEWS, not extortion and ridicule.
So, these are NOT news agencies, they are not using the information as news, they are not doing anything that is of value to the public (they say entertainment however being entertainment admits commercial use of likeness and of name which is ILLEGAL, unethical and immoral and they should be stopped altogether for it)
Finally, in most states all documents are "accessible" to anyone who wants them (and can pay for copies in some places) HOWEVER most states have laws on the books that forbid the commercial re-use of owned property, the state owns the picture, but the likeness and name used commercially in any manner is still illegal and unethical.
IN many states name, image and personality are PROTECTED under law. These same laws DO and SHOULD cover this situation, however, most of these laws are not criminal but CIVIL. the problem is suing in civil court and winning over and over and over as these companies work together when it comes to courts, they all rely on those decisions and will help with each other's court bills. Look up their attorneys, they usually represent many of these companies, not one. This I'm my opinion creates a RICO ACT violation to willfully defeat personal rights to privacy, name and likeness. The illegal act that a Sheriff should go after is the CONSPIRACY involved, this is the act that is criminal and prosecutable.
If anyone is big enough financially, go get them! If not, then We need MORE Sheriff's like this.
And, in most states the state DOES have the right to Copyright and many have used this for many reasons. IF the Sheriff wants to copyright the "product" he has the right. The picture was taken in private, without permission and the court never ordered that the property be seized (likeness) this means that the picture can and should be protected from abuse by the Sheriff. This also gives the Sheriff the RIGHT to CHO)SE if, when and to whom he will release the product and for what purpose. This has nothing to do with the perceived rights of these criminals. IT is the right of the copyright owner and NO ONE can tell him otherwise. In fact, the Sheriff is ELECTED to make decisions JUST LIKE THIS ONE!
Good Job I say!
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Re: Public domain vs public knowledge
Where are you getting these rules? The 1st Amendment guarantees the right to anyone to speak or publish what they like, with few restrictions. The ones you have listed are not among them.
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