[UbuntuWomen] Work Play Day - Discussion and Review of Announcement and Photo Model Release Waiver

[Matthew East]

On Tue, Apr 6, 2010 at 7:28 AM, Matthew East <mdke at ubuntu.com> wrote:
> However I do feel that there is something wrong with asking the
> individual to release the image under a free license which retains
> many of the author's rights, but then taking away all of the
> individual's rights at the same time with the waiver. I can see that
> you are trying to get the best of both worlds by, as you put it,
> "allowing Parents and Guardians to protect the likeness without also
> making it unusable to a vast proportion of the intended
> beneficiaries". But I don't think that you can have the best of both
> worlds. I don't think it's coherent as a matter of logic, but more
> importantly I don't think it is right from an ethical point of view. I
> think it needs to be clear from the beginning what rights the project
> will have in respect of the image from the start.

I've been thinking about this some more and whether it's possible to
achieve what you want to do in a different way. Essentially your
objective is to give the Ubuntu project different rights over the
photo to those which the rest of the world have. The neatest way to
achieve that seems to me to be to have one license for the world, and
another license for the Ubuntu project. That way at least we have some
clarity about what uses the image can be put to, what can be done to
it, under what conditions, and we ensure that the copyright holder
remains the copyright holder and there is no scary language about
waiving and holding harmless.

Even with this solution there are two problems, one practical and one principle.

The practical problem is defining who gets the additional rights. The
Ubuntu project is not a legal entity, and its also very uncertain who
would fall within it. So, for example, person X puts the image on a
flyer for their Ubuntu classes which they run as a commercial venture.
The parent is enraged that the photo is being used for commercial
purposes and brings an action against person X. Person X raises a
defence on the grounds that he is a member of the Ubuntu project.
Parent responds that the classes are run privately and are not an
initiative of the Ubuntu project. How do we determine whether person X
has the rights which he claims to have? Is it enough if he has
contributed patches to the project? Is it enough if he is an Ubuntu
member? Is it necessary that the profits from the classes are put back
into the project in some way?

Even if that hurdle can be overcome by defining what legal persons
have the additional rights, I still think there is a problem of
principle arising out of giving certain individuals more rights than
others in respect of using the photo. Why should person X get more
rights than others?

I hope this email takes things a bit further.

-- 
Matthew East
http://www.mdke.org
gnupg pub 1024D/0E6B06FF