File this one under "be careful what you wish for" -- as an in-house corporate general counsel. [
Preliminary editorial note, here: please understand that these rules only apply to public figures, and only when acting in their "public" capacities -- as in being the CEO of a public company.]
For the moment, at least, the Wordpress.com version of this site has been disabled, due to the request of the General Counsel of Mattersight. She filed a DMCA "Takedown Notice" at Wordpress, related to my old bannerhead. If you enlarge the image at right (click on it!), you will see the steps I took to transform the image. My oldest bannerhead had transformed Mr. Conway to the point shown on the end of the top line (when the DCMA request to take it down was made).
My subsequent efforts are plainly so transformative as to create new works -- in which case, the sampling of the original work is permitted as fair use, and is clearly part of a parody, now. As CEO, Mr. Conway has -- in true Transylvanian fashion -- been able to suck out of Mattersight (and eLoyalty before it) over $10.4 million in cash, and perhaps $25 to $35 million (including equity grants) all in, over the last 13 years.
All of this while never once reporting GAAP Annual EPS -- or earnings for the common shareholders (NASDAQ: MATR).
A parody of a public figure (even one made from a copyrighted work, but transformed, by art and skill) -- as a means of commentary on his performance -- is plainly protected as "fair use" under the applicable US common law. Mattersight is headquartered in the United States, and I live here too. US law allows this image, despite the swooning palpitations of Mattersight's General Counsel. [See
Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).]
Moreover, a federal District Court in Northern California recently held -- under similar circumstances -- that people in the Mattersight GC's position must evaluate "fair use" exceptions BEFORE sending a takedown notice, or be liable for abuse of the DMCA process in damages to the transforming work creator:
. . ."[T]he fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,’ the owner must evaluate whether the material makes fair use of the copyright.” The court went on to say that “[a]n allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. . . ." Lenz v. Universal Music Corp. (Case Number C 07-3783 JF, U.S. Dist. Ct., N.D. CA 2008). On a pixel-by-pixel analysis, now -- my final image contains less than 10 percent of the original's pixel-values. That is plainly fair use, and/or a parody.
And so,
this posting will serve as the extra-judicial counter-notice to Mattersight's GC (in addition to the phone messages I've left for her) that the very able Judge Fogel contemplated when he granted Mrs. Lenz
partial summary judgment against Universal Music, back in February 2010 (a 17 page PDF file -- see pages 14 and 15). As to any additional DMCA Takedown Notices sent to any other ISP for this same content, the Mattersight GC is now "on notice" that it may constitute a bad-faith abuse of the process, to thwart my "fair use" -- and my protected parodies.
To complete the record, here, then -- I'll post the text of Mattersight's takedown notice under the DMCA, in green below -- as well as a mini-image of the banner, complained about, as it stood last Thursady. It was, in fact, only one of seven banners that would appear randomly, under the theme I was using on Wordpress. So, a reader only had a one-in-seven chance of even seeing it.
Yet, the hired gun felt it was an unfair use of a barely bigger than thumbnail size copyrighted image of the CEO. So be it. It will remain here on blogger. And there are already accounts open on other hosts, should this one be made the subject of bogus "takedown" attempt.
Information. Just. Wants. To. Be. Free.
Location of copyrighted work (where your original material is located): www.mattersight.com
www.eloyalty.com
First Name: Christine
Last Name: Carsen
Company Name: Mattersight Corporation
Address Line 1: 200 S. Wacker Drive
Address Line 2: Suite 820
City: Chicago
State/Region/Province: Il
Zip/Postal Code: 60606
Country: USA
Copyright holder you represent (if other than yourself): Mattersight Corporation
Please describe the copyrighted work so that it may be easily identified:
http://mattersightfail.files.wordpress.com/2012/04/matterhead6-2012.jpg
The picture is found here on the blog: http://mattersightfail.wordpress.com/about/, with a smaller version found here: http://mattersightfail.wordpress.com/, incorporated into the April 13th blog entry.
Location (URL) of the unauthorized material on a WordPress.com site (NOT simply the primary URL of the site - example.wordpress.com; you must provide the full and exact permalink of the post, page, or image where the content appears, one per line):
http://mattersightfail.wordpress.com/
If the infringement described above is represented by a third-party link to a downloadable file (e.g. http://rapidshare.com/files/...), please provide the URL of the file (one per line):N/A
I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.: Yes
I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.: Yes
Signed on this date of (today's date, MM/DD/YYYY): 04/15/12
Signature (your digital signature is legally binding): Christine R. Carsen, General Counsel. . . .
Whatever else may be said about the above, it is a certainty that the latest banner has so transformed the original, as to no longer be infringing. I actually think the pre-Dracula-ized version would have been better for Mr. Conway's reputation -- but his lawyer insisted, so. . . I had to respond with a plainly-protected-parody transformation.
Ah -- irony! -- that's for me!
Here endeth the lesson in copyright law in the United States.
File this one under "be careful what you wish for" -- as an in-house corporate general counsel. [Preliminary editorial note, here: please understand that these rules only apply to public figures, and only when acting in their "public" capacities -- as in being the CEO of a public company.]
For the moment, at least, the Wordpress.com version of this site has been disabled, due to the request of the General Counsel of Mattersight. She filed a DMCA "Takedown Notice" at Wordpress, related to my old bannerhead. If you enlarge the image at right (click on it!), you will see the steps I took to transform the image. My oldest bannerhead had transformed Mr. Conway to the point shown on the end of the top line (when the DCMA request to take it down was made).
My subsequent efforts are plainly so transformative as to create new works -- in which case, the sampling of the original work is permitted as fair use, and is clearly part of a parody, now. As CEO, Mr. Conway has -- in true Transylvanian fashion -- been able to suck out of Mattersight (and eLoyalty before it) over $10.4 million in cash, and perhaps $25 to $35 million (including equity grants) all in, over the last 13 years.
All of this while never once reporting GAAP Annual EPS -- or earnings for the common shareholders (NASDAQ: MATR).
A parody of a public figure (even one made from a copyrighted work, but transformed, by art and skill) -- as a means of commentary on his performance -- is plainly protected as "fair use" under the applicable US common law. Mattersight is headquartered in the United States, and I live here too. US law allows this image, despite the swooning palpitations of Mattersight's General Counsel. [See Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).]
Moreover, a federal District Court in Northern California recently held -- under similar circumstances -- that people in the Mattersight GC's position must evaluate "fair use" exceptions BEFORE sending a takedown notice, or be liable for abuse of the DMCA process in damages to the transforming work creator: . . ."[T]he fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law,’ the owner must evaluate whether the material makes fair use of the copyright.” The court went on to say that “[a]n allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. . . ." Lenz v. Universal Music Corp. (Case Number C 07-3783 JF, U.S. Dist. Ct., N.D. CA 2008). On a pixel-by-pixel analysis, now -- my final image contains less than 10 percent of the original's pixel-values. That is plainly fair use, and/or a parody.
And so, this posting will serve as the extra-judicial counter-notice to Mattersight's GC (in addition to the phone messages I've left for her) that the very able Judge Fogel contemplated when he granted Mrs. Lenz partial summary judgment against Universal Music, back in February 2010 (a 17 page PDF file -- see pages 14 and 15). As to any additional DMCA Takedown Notices sent to any other ISP for this same content, the Mattersight GC is now "on notice" that it may constitute a bad-faith abuse of the process, to thwart my "fair use" -- and my protected parodies.
To complete the record, here, then -- I'll post the text of Mattersight's takedown notice under the DMCA, in green below -- as well as a mini-image of the banner, complained about, as it stood last Thursady. It was, in fact, only one of seven banners that would appear randomly, under the theme I was using on Wordpress. So, a reader only had a one-in-seven chance of even seeing it.
Yet, the hired gun felt it was an unfair use of a barely bigger than thumbnail size copyrighted image of the CEO. So be it. It will remain here on blogger. And there are already accounts open on other hosts, should this one be made the subject of bogus "takedown" attempt. Information. Just. Wants. To. Be. Free.
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