Intelligent opinions requested...

[jmfryar]

I'm curious what the general population here thinks of this story.

Kid in Canada videotapes himself dancing around with a pole, making light saber noises as he fights an imaginary Star Wars battle. Gets uploaded to the internet by some friends.

People then download the video, added special effects and re-upload it...there are currently 69 versions of the video. To see the complete collection, go here: www.jedimaster.net

The owner of that site is so enamored of the large, ungainly and graceless, yet endearing and funny kid, that he starts a petition to include him in the third Star Wars film. (Which, from a marketing point of view is likely to happen - due to the fact that the various videos of the kid are now downloaded at a rate higher than Pam Anderson or Anna Kournakova...) www.waxy.org put together a collection to buy him an ipod and ended up with over $4,000 american. They bought him the ipod and then gave him the rest in gift certificates. There are now sites dedicated to the kid...

on the other hand...

In a statement of claim filed last week in their home town of Trois-Rivières, the parents say that the kid was so widely mocked at his private high school that he dropped out.

He had to finish the session at Pavillon Arc-en-ciel, a ward specializing in child psychiatry at the Trois-Rivières Regional Hospital Centre.

here's my question:
The parents have actually filed suit against the kids who uploaded him...

Now, I know the legal ramifications and what not, but I'm curious what you all on here think about the suit...should it be allowed to go forward?

<small>[ 08-22-2003, 02:44 PM: Message edited by: jmfryar ]</small>

[barfle]

One important element here is the ages of the kids involved. Although we all mature at different rates, the ability of the dancing kid to grant permission to use his image would have a bearing on my opinion. Apparently he voluntarily gave the video to his friends, who may or may not have had permission to post it on the Internet.

Of course, the Internet is the great lawless wild west. That's both good news and bad news. Lots of pictures of people are loaded onto the Internet all the time. Heck, there's even several of me available, and maybe some that I'm not aware of (although I don't believe I'm all that interesting to look at). But when something gets posted to the Internet, all bets are off. Although the original owner of the material may beg to differ, copyrights don't exist for all practical purposes.

I admit I'm extrapolating what you've posted toward what I believe are the circumstances. I may well be wrong. However, if the dancing kid voluntarily gave the tape to his friends, it must have been because he wanted others to see his performance. He may not have wanted the audience he got, but if he didn't want others to see it, why did he record it and why did he give that tape to his friends?

As far as the validity of the suit is concerned, I am not familiar with Canadian laws regarding personal images being distributed against the imaged person's wishes, so I don't have an opinion. I would like to believe that if it had been my kid, I would have praised his performance, told him I was proud of the fact that so many people thought it was worth watching, and made him feel good about it, no matter what his bratty friends may have said to him.

[Angie Parkes]

I can't make an informed opinion of this. You'll have to judge how intelligent it is.

First of all, whatever happens in Canadian law, based on the British common law, is different in Quebec where their legal system is based on the Napoleonic Civil Code.

However, the boy is a minor and certainly in English Canada, one cannot publish images of an identifiable minor without the express permission of the parent/guardian. While the uploaders are probably themselves minors, if the owner of jedimaster.net is Canadian and an adult, I think the parents have a good case. But I suspect the owner is not Canadian, and I have no idea if a Canadian civil court has jurisdiction elsewhere. I shouldn't think so, but then again, the action is between private parties, not the state and a defendant as would be the case in a criminal matter.

High school generally starts in grade 10 in Canada, grade 9 in Ontario. If the boy is attending high school, he's a bit old to be dancing with a pretend light sabre. I'm assuming he does not have the same social maturity of his classmates. Given that he's big, ungainly, and perhaps a bit of an oddball, I'm not in the least surprised he finished his year in a psychiatric institution. The "friends" who uploaded the tape in the first place may have been equally odd or out of place, or may have been bullies, who recognizing an opportunity for sport, may have feigned interest in order to torment this kid.

I should state my bias upfront because I'm not likely to be objective about this. I'm short, fat, awkward, and being smart as a kid only made the torment worse. My husband was bullied only because he played the violin. My 10 year old son, who even by objective opinion is a good-looking kid, is also gifted, and has been bullied so much that we're switching schools for this grade (he's going to a congregated setting for gifted kids). There have been a couple of prominent cases of children killed by bullies in Canada so this may be a hot button issue nationally.

I doubt the parents can find a court with jurisdiction, but if I were them, I'd go after the closest adult in the case, who I assume is probably the owner of jedimaster.net. But as I said, I'm not rational about this sort of thing.

[Selma in Sandy Eggo]

OK, first disclaimer. There is no intelligent response to this problem. It has gone too far for any practical retrieval of the situation. The files are on the internet, run wild, never to be retrieved.

The kid has learned a bitter lesson regarding discretion and documentation of personal activities. At least it wasn't his honeymoon. He has my sympathy, but his own actions are the first component of this mess. I'm sure he'll never do anything similar again.

The "friends" who uploaded the thing also lack either judgement or, as has been speculated, are bullies. The awkward kid needs better friends. As a general principal, I feel that bullies need counselling. Firm counselling. Bloodshed is not always required; bruises are often sufficient.
My own practical recommendation for the kid with the light saber would be martial arts or quarterstaff lessons. He can do the same stuff, but it'll be more fun for real.

thhoik3eg8ijikagpjih Drat. Had to evict a cat from the keyboard there. Talk about bullies; Excuse me, my master calls.

[Angie Parkes]

There is no intelligent response to this problem. It has gone too far for any practical retrieval of the situation. The files are on the internet, run wild, never to be retrieved.

Good point, Selma.

[dai bread]

As Selma has said, the cat is well & truly out of the bag.

Personally, I think the parents are going after the wrong people. They should be going for the school authorities who allowed bullying to that degree, and, if they can, for the parents of the bullies. I guess I should visit jedimaster and see whether the videos are funny or malicious. There's a big difference, and IMO the suit against jedimaster stands or falls on it.

As for the bullies, perhaps someone could arrange to send them camping next Canadian winter, and somehow forget to pick them up?????

I know someone whose son had his fingers broken because he had the temerity to play the violin. His mother took him out of school too, though he didn't end up in psychiatric care.

I have always had the utmost respect for Vincent Aspey, a fine violinist who led our NZSO for many years. He was a miner's son from Huntly. Huntly was and still is a small coal-mining town. The bullying must have been tremendous.

[dai bread]

Have just checked jedimaster. I'm not impressed.

[OperaTenor]

I just checked it out, too. You've got to be kidding.

[barfle]

There was a Zits comic on the same topic. Find the one for Tuesday, August 12, 2003.

[jmfryar]

I wasn't really interested in a legal analysis so much as a general reaction - obviously not all of the facts are there, they've been edited down to a few pertinent ones...

But there's some interesting reactions none-the-less. My understanding is that the tape was stolen, not freely given to the person who uploaded it.

There is the possibility of tort actions for defamation of character or invasion of privacy, as well as any statutes that may govern the uploading of the image of a minor to the internet. Damages could run the gamut and depend on losses, provable or otherwise, and statutory guidelines (treble damage for malicious acts, for instance).

The law may or may not allow for mitigation of damages, but there's a good social argument for preventing this sort of thing (don't want teens to think it's okay, 'cos the "victim" may benefit from the act).

But again, I was just curious as to the general reaction to the situation...

[Angie Parkes]

Okay, jm, now we've satisfied your curiousity, what are your opinions on the event and our responses?

(Geez, it's never been this hard to get you to post an opinion before.... )

[piqaboo]

I didnt get a clear picture, but the kid looks like he may have trisomy 21 (Downs).
Reduced mental capacity would complicate both the legal and moral situation, I think.

[jmfryar]

Kids suffered harms - near suicide attempt.
Parents have suffered harms - loss of monies for private school, (possible hospital bill for stay? I know Canada has socialized medicine, but does it include psychiatric care?) and damages from shifting schools, possibly having to move. Someone other than the parents or the child should be responsible for those...

Then there's the humiliation factor, the invasion of privacy factor...

But there's also the "kids will be kids" factor and what they did was no worse than if they had shown the video at a party - no one who got it on the internet knew who the kid was...so...was his humiliation that much greater than if it was just in that sort of limited setting?

And he has, and will continue to reap benefits as it gets bigger and more popular...

Honestly, without more information, it's tough to formulate an opinion on it...

Some of the things listed above are worse than this in their own way. Personally, I think that the children responsible for truly malicious acts should be held responsible - and that is what juvinile court is designed to do.

But was this anything more than what happens on the girls gone wild videos where the OVER 18 girls come back and sue because they didn't give their permission to use their images in the advertising of the end result?

The internet has created some very interesting quandries...

[audiogirl]

I looked at the site. Isn't is true that your likeness/trademark/identity can't be used without permission?

There are exceptions for public figures, however.

I keep thinking of a related case in which Johnny Carson tried to keep a port-a-potty owner from calling his product "Here's Johnny!"

[Nicole Marie]

Hi Audiogirl-

Good point about his image and likeness but I have a feeling this kid gave up all expectation of privacy when he shared a copy with his friends. Once he passed a copy to the public/his friends he gave up any hope of privacy. Not sure what the law says about them posting it on the internet but his intention to share his likness with friends diminishes his privacy. If this kid had just done a poor man's copyright we wouldn't have this issue to begin with.

[jmfryar]

It actually has to do with expectations - just by passing something to someone does not mean that the person can then take it and post it - if that were the case, then every photographer in the world would have the rights to post, sell and publish photos just because they possessed them.

After all, isn't it reasonable, using the same extrapolation, that if the person is taking your picture, that of course you are allowing them rights to it?

His image was under his control and he chose to lend the video out to friends, but not with the intent to have it posted to the internet in much the same way that a friend might let me borrow their wedding album, but that doesn't give me the right to scan the photos and create a web page.

Particularly if the intent of the creation is the humiliation of the person.

So what we're juggling here is - what was his intent in lending the video out? Was it a reasonable expectation that the people to whom he gave it would post it to the internet? Was it in fact that group who posted it? What was their intent on posting it to the internet?

This is why this stuff ends up in court in front of a fact finder...someones gotta figure out what the heck these people were thinking...

And Canadian law is in effect, so who bears the burden of proof, and what the level of proof is in this case is unknown to me...I'm kinda curious though...

This just bears on the same philosophy of "Don't put anything in writing that you wouldn't want on the front page of the New York Times."


"Don't video tape anything that you don't want posted to the Web."

The funny thing is, if he had done a "poor man's copyright" (you mail yourself a copy of the piece so that it's sealed and postmarked as proof of when you created it) there'd be one hell of an argument that he MEANT it to get out and that his only measurable damages would be what he lost in it's uncontrolled release.

How do you claim damages for humiliation and invasion of privacy when you yourself intended to publicly release the product at some point?

So careful what you copyright and the ramifications there of...always consult with an attorney...


<small>[ 08-28-2003, 02:20 PM: Message edited by: jmfryar ]</small>

[Nicole Marie]

That's my point. If he had done a copyright on it, then we would have known his intention. We don't know what he wants. He gives it to friends, the assumption is he wants people to see it. But then the issue goes to the court when to many people see it online. If you don't want something out there then don't lend it out. I'd be interested in knowing his relationship with these friends. We they close, casual? If he lent it to people that he felt may abuse the tape then it's his own fault.

Personaly, if I were a Marketing Rep. I'd have this kid as a client and make him and me a ton of change.

[jmfryar]

Actually - his intention may have little, if anything, to do with it - it's normally a reasonable person standard to prevent wild unpredictible swings in litigation.

So...if it's a reasonable person standard - then the test may be -

when a reasonable person lends out a tape for friends to view, do they expect that the people (also seen as reasonable people) they lend it to will copy it to the internet?

This could be beaten if there is some proof available that he intended it to be uploaded, then he's kinda shafted, but nothing of the sort has arisen.

Can see where this could go downhill VERY fast for the "copiers"

But wait...it may be worse...

If the court decides to look at societal impact in their decision, it could go something like this:

"Do we want the average person afraid that the materials they lend or loan out may be used for their own abject humiliation? This would have an impact on the general population that would lead to mistrust and litigation. We can't allow it. An example needs to be made..."

It doesn't sit comfortably with me that if I loan someone something of mine for them to use for a specific purpose, it may come back to be used against me in a way that I never dreamed.

Look at it in this way:
I tell you something horrible and terrible about myself in a private moment. You go and repeat it, thinking that, "Well, if they told me, then I can tell whomever." and the gossip mill begins...

As a society we look down on it, but how do you litigate every rumor that flys around about you?

Ahhh...but on the other hand...put that rumor on the internet, advertise it for the world to see, and see if you're not in court attempting to explain why it's within your 1st amendment right to repeat information that you know to be true from the top of the mountain for the whole world to hear no matter what the potential damage to the person you're discussing.

There's a reason why there's an exception to the rule for celebrities and people in the public eye - but it's an exception...not the rule...

[Nicole Marie]

Love lawyers. That's why I'd like to know more about the relationship between the boy and the friends. If you tell me something in privacy, I understand that's where it stays. But what was the converstation between the kids? If we knew, that may clear this up. I'm more reserved when it comes to these issues, I have a feeling that these kids who posted the tape were not friends. I'm not faulting him but if you had some that "intimate" and you didn't want it out, then don't give it to people you can't 100% trust.

I don't think this is an issue for the courts. As people earleir posted, this may have more to do with parents then the kid. Don't take it to court and let it be a lesson learned.

[jmfryar]

Update: The tape was fiven out and returned...as a result, a kid who knew what was on it stole it out of the kids house - so the ones who updated it got it through theft apparently.

I'm actually curious if, under Canadian law, the kid had committed suicide, there are criminal penalties...

That would be a "was it forseeable" argument...

Oh...and let's not forget the "Intentional Infliction of Emotional Distress" action...

I don't agree - I think there are certain lines that need to be drawn in the sand and penalties for actions taken. I think this particular instance is of such an extreme and high profile enough that it will be a lesson for all on the net - DON'T DO IT, or face the penalty of X...

it's too big an opportunity for courts to potentially lay down a line about material that appears on the internet for anyone to resist...it's ripe for adjudication...

It all started back when, "if your kid did this to my kid, I'm gonna show up at your house with a bat and start busting windows til he gets an apology" could get you in deeper trouble...once the courts took simple matters out of the individual citizens hands to resolve, they took on this type of litigation...

I do remember the days when any adult in the neighborhood could give you a smack on the ass when you were acting up...

and the southern states had those "unusual fruit trees"

<small>[ 08-28-2003, 04:30 PM: Message edited by: jmfryar ]</small>