The Mere Threat Of Real Neutrality Rules Appears To Have Helped Calm Verizon, Level 3, Cogent Interconnection Feud

Prison 'Enforces' Messaging Company's 'IP' Rights By Sending Prisoner To Solitary

from the intellectual-property-gone-mad dept

Wed, May 6th 2015 11:38am — Mike Masnick

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:

If you can't read that, it says:

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.

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.

There is a similar clause under the "video visitation" terms of service as well, noting that JPay owns those videos as well.

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.

[....] 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

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:

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

24 Comments

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Anonymous Coward, 6 May 2015 @ 11:54am

Wow
Wow, we really need some reform.
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Josh in CharlotteNC (profile), 6 May 2015 @ 11:54am

Step 1: Get someone to upload that 'glass tongues' poem via JPay to social media.
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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Anonymous Coward, 6 May 2015 @ 11:56am

"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."

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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reader50 (profile), 6 May 2015 @ 11:58am

Easily solved. If JPay claims ownership, let them own something they don't want. Send some illegal speech through the system. Then sue JPay for the illegal speech.

They change their terms pronto, and you get some cash. I wish all problems could be solved so easily.
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Anonymous Coward, 6 May 2015 @ 11:59am

Copyright violation -- Federal suit possible?
As I read the Copyright Act (US CODE TITLE 17), Buford owns the copyright to her work and has NOT done anything Federally recognized that might transfer title to JPay or to the State of Indiana. She should be able to sue both in Federal court over the matter; if she has a cooperative judge, she might even follow the precedents of the Scientology cases and get a warrant to engage in an ex parte seizure of JPay's computers for examination, to discover detailed evidence of the copyright infringement !
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Anonymous Coward, 6 May 2015 @ 12:14pm

As I read it, the clause isn't enforeceable because it only states that you agree that the transmitted content belongs to JPay. It doesn't stipulate that JPay owns the copyrights on the "content." So they only own their copy of the "text, data, information, images, or other material."

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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jupiterkansas (profile), 6 May 2015 @ 12:23pm

Re:
In that case, JPay sharing that information with the prison would be infringement.
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Kenneth Michaels, 6 May 2015 @ 12:28pm

Re: Copyright violation -- Federal suit possible?
With respect to the second paragraph: "JPay owns all of the content, including any text, data, information, images, or other material, that you transmit through the Service."

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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Anonymous Anonymous Coward, 6 May 2015 @ 1:03pm

Consumers TOS
Would it be possible to write a Consumers Terms of Service Acceptance that basically states if you want your IP to be used in any way shape or form by us, then you must get off your high horse and capitulate to the terms of the US Constitution (or something more eloquent and devastating by those that know how to write pretzel language like lawyers) in such a way that any one of us that signs it forces commitment on the sending party?

Or is that just wishful thinking?
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Anonymous Coward, 6 May 2015 @ 1:23pm

Re:
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.

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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John Fenderson (profile), 6 May 2015 @ 1:28pm

Re: Re:
I don't think that's what they were trying to say. They could have just said that (or copied the wording from other agreements that say this if they were stuck for words). I think they said what they meant. They have a captive audience, after all, and eagerly milk it for every little thing they can get. Why wouldn't they want to own everything as well?
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ECA (profile), 6 May 2015 @ 1:36pm

wHY IS IT..
Why is it possible to Give away our personal rights?

Why is it that companies can Enforce rules(not laws)
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Anonymous Coward, 6 May 2015 @ 1:43pm

Re: Re: Re:
They are only claiming what they can, the ownership over copies they make to provide the service, and could phrase it much better.
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dr evil, 6 May 2015 @ 1:45pm

not an issue
Unless there is a section that says 'invalidation of one part of this contract does not invalidate the remainder' this fontract will be found invalid because copyright cannot be reassigned this way .. if it can, show the caselaw... and just for laughs, start sending as much illegal shite as you can .. /nosarc
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orbitalinsertion (profile), 6 May 2015 @ 2:17pm

Or we could start really challenging what is enforceable in TOS/EULAs in court. They are non-negotiable "contracts", and particularly in cases when there is no other option, people are going to use the product or service because they need to do so.
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Blackfiredragon13 (profile), 6 May 2015 @ 2:23pm

The problems...
I can already see an incarcerated prisoner writing a book and talking to his publicist using the service and Jpay claiming it now owns the book.
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Rekrul, 6 May 2015 @ 3:38pm

So if someone transmits child porn through their service, does that mean that they own it?
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James Burkhardt (profile), 6 May 2015 @ 4:00pm

Re: Re: Re: Re:
If they only want ownership of their copies, why list that ownership as an IP right?
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Jay (profile), 6 May 2015 @ 4:57pm

Re: Wow
You have to change the Restoration Amendments.

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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Anonymous Coward, 6 May 2015 @ 5:02pm

- Privatization of social services is not a good idea.
- 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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Anonymous Coward, 6 May 2015 @ 11:31pm

They will just look for another excuse. The ToS is not the real problem here.
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John Fenderson (profile), 7 May 2015 @ 7:39am

Re: Re: Re: Re:
But in contracts what is meant doesn't mean nearly as much as what is written.
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Uriel-238 (profile), 7 May 2015 @ 11:09am

Yep. A guy's in solitary because someone in power wants to hurt him.
I'm with AC, the JPay ToS are being used as misdirection away from abuse.
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Just Another Anonymous Troll, 8 May 2015 @ 7:31am

This is especially ridiculous because copyright and ToS's fall under the purview of civil law, so the prison should be keeping its grubby fingers out of it.
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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