Prison 'Enforces' Messaging Company's 'IP' Rights By Sending Prisoner To Solitary
from the intellectual-property-gone-mad dept
If you aren't aware, the prison communications business is a massive boondoggle for the companies providing those services. Talk about a "captive market." And the companies take advantage of that with absolutely insane rates for things like phone service, some of which became news not too long ago when an expert in this area estimated that the Serial podcast probably had a $2,500 phone bill for its 40 hours of calls with Adnan Syed.But, of course there are other ways to gouge someone beyond just money. And, as the EFF's Dave Maass has discovered, one major service provider in the space, JPay, forces any user to sign over all rights to any content sent via its system. The company is pretty explicit about this. In the "email" portion of its lengthy terms of service (you have to (1) have javascript enabled and (2) click on the email link to get these to show up), it notes the following:
INTELLECTUAL PROPERTY RIGHTS. You acknowledge that JPay owns all right, title and interest in and to the Service, including without limitation all intellectual property rights (the “JPay Rights“), and such JPay Rights are protected by U.S. and international intellectual property laws. Accordingly, you agree that you will not copy, reproduce, alter, modify, or create derivative works from the Service. The JPay Rights include rights to (i) the Service developed and provided by JPay; and (ii) all software associated with the Service.There is a similar clause under the "video visitation" terms of service as well, noting that JPay owns those videos as well.
You also acknowledge that JPay owns all of the content, including any text, data, information, images, or other material, that you transmit through the Service.
Now, you can understand JPay claiming IP rights on the service itself. But it's that second paragraph that's insane. Just to use the service, you are saying that JPay owns anything you send via the service. Anything. Maass points out this means that if a child sends a drawing to an incarcerated parent, JPay claims it owns the copyright on that drawing. Or, going back to Serial, all of those recorded calls with Adnan Syed? Well, if it had been done via JPay's system, under those terms, JPay could (theoretically) claim a copyright interest in the recordings, and thus argue that Serial was infringing.
That might be (or might not be) a far-fetched scenario. But there are some very real world scenarios that are coming out as a result of this mess. You may recall a post we did back in February (also based off of excellent work by Maass), highlighting how the South Carolina Department of Corrections was adding new level 1 felony charges to anyone using social media while in prison. This resulted in some prisoners being given multiple years of solitary confinement for merely posting to Facebook.
Maass highlights a case where prison officials similarly punished a convict who recorded a video message via JPay, urging supporters to come to a hearing in his appeal effort. When asked why the guy had lost a bunch of his rights and was put in solitary confinement, the prison said it was merely enforcing JPay's intellectual property rights, even if the company didn't appear to complain about this at all (and, in fact, encouraged people to share the videos created under its system):
Valeria Buford has been running an Internet campaign to get her brother Leon Benson’s murder conviction overturned. In August 2014, Benson used JPay to record a 30-second videogram thanking his supporters and asking them to attend an upcoming hearing in his appeal. Buford posted this to Facebook, but when prison staff discovered it, Buford’s JPay access was suspended and, according to the Indianapolis Star, Benson was disciplined, sent to solitary confinement, and stripped of good-time days. To justify the discipline, they claimed that they were simply enforcing JPay’s intellectual property rights and terms of service.Oh, and the reason there are court records on this is because Buford is suing, arguing that this whole thing violated her own First Amendment rights:
[....] According to court records, JPay told Buford directly that she was free to do what she liked with the videogram, including posting it to social media
Buford is currently suing the Indiana Department of Corrections with the help of the American Civil Liberties Union of Indiana. Although Buford’s JPay access has since been restored, she argues that her First Amendment rights are chilled because she “continues to face loss of her ability to communicate with her brother through [JPay] if she so much as posts an internet message from him.”But, as Maass notes, JPay could help out by doing something rather basic here: changing its own terms of service to not claim ownership over all content sent via the system, so that the prison can no longer use that as a bogus excuse to strip prisoners of service just for speaking out.
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Filed Under: enforcement, leon benson, messaging, prison, solitary confinement, valeria buford
Companies: jpay
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Wow
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Re: Wow
This has been a problem for centuries. The prison complex allows for slavery and it's a reason why you have a LOT of people defending keeping it as it is even though that's the free market that people espouse to.
Not a really good system when it's so suppressive, is it?
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Step 2: Get to a safe distance very very far away. Preferably another country. Or maybe the moon.
Step 3: Watch fireworks.
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So someone sending an mp3 of an Artist belonging to a Sony artist using this system is going to have JPay saying that they own it.
In that case JPay will be sued by Sony for copyright infringement for distribution as JPAY claims to own the mp3 according to their terms and conditions. /sarcasm
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They change their terms pronto, and you get some cash. I wish all problems could be solved so easily.
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Copyright violation -- Federal suit possible?
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Re: Copyright violation -- Federal suit possible?
Owning the content is different than owning the copyright to the content. Just like you can own a physical book (content) without owning the content. JPay would appear to be saying that you can't ask them for the stuff that you sent through the service - JPay is free to keep it and delete it.
With respect to the first paragraph, yes, JPay is claiming ownership of the copyright to the software and the system, not to the content. This is a great example of the wrong use of the term "intellectual property" when other terms would have been better.
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Beyond that, an assignment of copyright must be in writing and signed by the assignor and the claimant must register the copyright to use it against someone. Even if it did attempt to assign copyright to JPay, that would likely be an unconscionable clause. If a prisoner has no other means of communication, then they are being coerced.
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When will lawyers learn to write terms of service in a fashion people can understand, like:-
Jpay will make any necessary copies of what you transmit to provide the service of delivering it to the recipient.
which is what I think they are trying to say.
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Consumers TOS
Or is that just wishful thinking?
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wHY IS IT..
Why is it that companies can Enforce rules(not laws)
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not an issue
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The problems...
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- Some instances may have much worse problems than others.
- Conflict of interest will become an issue no matter what checks and balances are put in place.
- Corruption is inevitable, let's not glorify the practice.
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Yep. A guy's in solitary because someone in power wants to hurt him.
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But hey, let's just abuse the inmate for the lulz, claim some BS reason, and everyone will walk away because no one cares about criminals!
-whoever did this
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