Saturday, July 7, 2012

you have burned your choice

Couple days back, I brought up the recent post Gala Phoenix made about the Curio/Hush Skins battle. On the Salome Says blog, Salome brought up a point I'd forgotten in all of this.

First, from the Curio announcement:
In May, right after she sent the takedown notice, Hush put up a blog post. In it, she accused me of copyright infringement and claimed that a court had "reviewed the evidence" and determined her claim was valid. She even included some language she took from the complaint, rewrote it, and made it sound like the court had granted her an injunction.

There is no injunction. No court has reviewed any evidence. Her blog post was complete fiction.

I'll say that again, because I want to be clear: there is no injunction against me. No court has reviewed any evidence. There has been no court decision against me. I am not guilty of copyright infringement. Hush's blog post was not true. My skins are only offline because of the way the DMCA works.
Now, let's jump to Salome's post:
3. On May 25th, Gwen Carillon (founder of the Content Creator’s Association) made a post on SLU, claiming:

"First: I have seen the court docs in question. They are real. Hush has been transparent in all her dealings.

"Second: This is not a DMCA. This is a Supreme Court Injunction directing Linden Lab to remove infringing content. The docs are not what those in US are familiar with since this was issued from Canada. The word "wilful" might have been a typo, or it may be an alternate spelling. The injunction is the result of copyright registration shown and evidence submitted to the court. This was a court order, not a DMCA take down."

Despite the attempts of others to get more information, Gwen Carillon has remained publicly silent since her single posting on this issue.
So I went back to the SLU thread in the first place, and new information has come to light, which makes all of this even more confusing.

First, we now have the copyright claim from the Canadian Copyright Register (I'd amend a warning; while I'm linking it, it does contain RL information. I'm also linking to the original SLU post that contained this link, because sometimes, clicking the above doesn't take readers directly to the right section). This is not a Supreme Court injunction, which originally made me mad enough to make several inflammatory comments in this entry...

...which I then erased when I found this (similar warning; this is a legal document and as such contains RL information). So, at this point:
  • Miss Carillon made her original comment on SLU on the 25th of May.
  • The complaint mentions an original complaint (which means not the letter's own complaint, but other paperwork) was filed May 15th.
  • The complaint begins IN THE SUPREME COURT OF BRITISH COLUMBIA.
Thus, even though it's just a notice that the claim has been made, and no specific presentation of findings--for either side--has occurred (and by that I mean in a court room, in front of a judge, with barristers and clerks), I believe Miss Carillon thought she knew what she was seeing. If Hush Darkrose is a personal friend past that, that would make it even easier for her to believe that the initial claim was actually a decided court case. We are always more willing to believe our friends, over the wider world...

Especially if that's what Darkrose told her it was.

How'ver, there's one thing which is still deeply puzzling me. From the official civil claim filing:
Part 2: RELIEF SOUGHT
1. The Plaintiff claims as follows:


(e) An interim, interlocutory and permanent injunction restraining the Defendant from infringing the Plaintiff's copyright and moral rights in the Works;
(f) A wide injunction restraining the Defendant from infringing the Plaintiff’s copyright and moral rights in any works or other subject matter in which the Plaintiff now, or in future, may own copyright or may have an interest in copyright by licence;
Now, again, I am not a lawyer, but from everything I've been able to verify, there is no claim state in Canada where an interim, interlocutory and a permanent injunction can be claimed at once.

I'm going to repeat that, because it sounds vaguely important: from everything I've been able to track down, these are three separate legal states. As far as I know, one is issued before the trial, one is issued only by Parliamentary action, and one is issued after the trial has successfully concluded. These three injunction states cannot coexist.

So...this either means my research is wrong (I'll grant the possibility, being as I am not a lawyer nor live in Canada); or the entire document is claiming those three states as a potential outcome for the trial (which has not yet occurred). Normally, I'd add a third potential (that the entire civil claim document might be fake), but if it was found on a search for the original copyright registration, then it shouldn't be a falsified document.

Unless this entire issue is even more arcane than we know.

There's a huge rundown of all the links to date on LeeHere Absent's blog, which--if anyone isn't up to speed yet on what went down--will go a long way towards informing folks of what's happening. I'll update when I have more news.

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