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Digital Economy Bill - 'orphan works' - pre-digital images


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#1 retriever

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Posted 16 January 2010 - 20:08

The following letter may be of interest to those TNF members (messrs Nye, Walker amongst others) who own or administer a photographic negative archive including the intellectual property rights of said archive.

It is hopefully self-explanatory and I have copied it into the Nostalgia Forum as its contents need to be brought to the attention of as wide an audience as possible. If you own a negative archive - however small - and prints from said archive are in the possession of a third party then this may be of interest to you.

This letter was sent to me recently by a fellow archive owner. If you are concerned about its contents and the fact that this Bill may become law without any including any significant amendment as that requested I suggest that you write to your MP detailing your concerns.



Director of Copyright & IP Enforcement
Intellectual Property Office
21 Bloomsbury Street
London
WC1B 3HF.

Dear Sir,

Digital Economy Bill - Orphan Works - Pre-digital Images

I am the owner of a small archive established as an archive of last resort for collections of original images (mainly negatives) that would otherwise have been lost to future generations.

Under the provisions of the Copyright, Designs and Patents Act 1988 (as amended) [CDPA] the Intellectual Property Rights [IPR] for art works including photographic images are attached to the work on the medium on which it was originally created. For pre-digital photographic images this is the original negative or transparency. The Act establishes that no IPRs are attached to images derived from these originals. If reproductions of the original are used without licence from the rights holder, then it is at the risk of the user. In short, the Act establishes that the owner of the original image is the owner of the associated IPRs (unless it can be shown that the IPRs have been assigned elsewhere). It would be correct to say that a photographic image for which the original has been destroyed is an orphan and I would agree that this should be treated as an OW. An image for which the rights owner cannot be located is simply "lost".

As a member of BAPLA, my attention has been drawn to the provisions contained in the Digital Economy Bill and particularly the arrangements being proposed to license Orphan Works [OW]. The definition of an OW appears to be given as a work for which the rights owner cannot be traced. In the case of photographic images this definition introduces a significant shift away from the established principle that the IPRs reside with the holder of the original image and towards a culture in which the IPRs may be attached to first and subsequent generation copies, albeit with the blessing of a collecting society.

It is for this reason that I believe the due diligence caveat proposed as a pre-requisite to declaring an image to be an OW will be abused by those seeking to use images . I would submit that whilst literary works, films, music and other non-photographic entities normally have titles written in the language in which the work is available, thus facilitating text based searches, photographic works have neither title nor country of origin.

The sheer volume of images without caption sheets, copyright marks or metadata (where a pre-digital original image has been digitised) would make a search for a rights holder virtually impossible. It has to be recognised that, within the UK, the only way to identify the rights owner for any specific image is to visually compare that image with all the other images in all the collections, archives and picture libraries throughout the UK. In many cases that comparison will need to be conducted at the level of fine detail since many photographers will take several exposures from the same position with the only differences being the aperture, shutter speed or small changes in background or ambient lighting.

It is a fact that that, in the UK alone, many clubs and societies, town and county councils, industrial organisations, museums, archives and libraries, not to mention private individuals, have significant original image holdings that range from the low thousands to many millions, any one of which could be the parent of an image being researched.

I believe the OW provisions contained within the Bill will lead to a culture of "engineered" orphan images as an easy option to finding the rights owner. This will be encouraged by the ability, after demonstrating due diligence, to obtain a license from a collecting society as an insurance against the rights holder suing for his normal fee plus loadings for unlicensed use, uncredited use and loss of moral rights. Given the vast reservoir of potential OW images, the impact on existing archives and libraries could well be fatal.

I therefore ask that you use your best efforts to bring about a change to the Bill to EXCLUDE photographic images from the provisions of the OW process. I believe there is a sound case to be made to separate images from the proposed OW arrangements and the creation of unique image classes of "Lost Image" and "Orphan Image" in recognition of the fundamental differences in the reproduction and distribution of photos when compared with other CDPA subjects. There may well be a case for the creation of an Internet based "central image registry" as a way for rights holders to register their images - but such things must be for the future.

Should this Bill be adopted in its current form it will have serious implications for the sustainability of image archives and picture libraries such as mine. I have one image for which I have sold exclusive, world-wide, lifetime rights. It no longer appears in my on-line catalogue and the licensee does not wish it to be published. What will happen if a collecting society licenses a print of that image for publication? Who will be accountable and who will pick up the financial fall-out? Come to think if it, how will due diligence work if the legitimate rights owner has already issued a licence but another searcher has not found the rights owner, has completed a due diligence search and had a license issued by a collecting society that is above the law?

I urgently seek your assistance in resolving these issues before this Bill becomes law and then requires amendment to cater for photographic images - as did the original CDPA.

Ends.

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#2 D.M.N.

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Posted 06 April 2010 - 17:49

Seeing as it is relevant here, this is getting its 2nd reading now... set to be rammed through Parliament tomorrow.

#3 retriever

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Posted 06 April 2010 - 18:01

Seeing as it is relevant here, this is getting its 2nd reading now... set to be rammed through Parliament tomorrow.


Sadly nobody showed any interest when I created this topic (DCN kindly replied separately to me on the matter though). I was wondering if this Bill might be one of those to benefit from the pre election cramming process.

Now you can look forward to all your copyright pictures appearing in future books etc with the publisher/author stating that due diligence had been undertaken in trying to source the copyright holder with you having no leg to stand on when trying to pursue copyright infringement.

Beware what you post on the web in future.




#4 alansart

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Posted 06 April 2010 - 18:45

As with all things on t'internet, it's all about who can do things without giving their real name :)



#5 BrendanMcF

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Posted 06 April 2010 - 19:09

http://www.stop43.org.uk/

Posted Image

#6 bradbury west

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Posted 06 April 2010 - 21:08

As , I am sure, did the BNP at the Euro Elections with their posters showing well known shots of Spitfire planes over the white cliffs, unless they bought the right to use them and I am just maligning them....
Roger Lund

additional edit addition;
http://www.telegraph...al economy bill
I suspect most people's complaints will centre on actions taken to prevent freeloading music etc off the net.
RL

Edited by bradbury west, 06 April 2010 - 21:19.


#7 Giraffe

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Posted 07 April 2010 - 13:47

In researching a site today for another thread, I discovered that I was unable to cut and paste a section of prose and got a message flashed up telling me that it was copyright protected. I then tested a photo on the site and got the same message. I have encountered this before on occasion, but it does beg the question as to why this solution is not more widespread?

Edited by Giraffe, 07 April 2010 - 13:52.


#8 alansart

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Posted 07 April 2010 - 14:26

I have encountered this before on occasion, but it does beg the question as to why this solution is not more widespread?


It's not a total solution as you could still do a screen shot and get the info that way.


#9 Paul Parker

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Posted 07 April 2010 - 14:41

[quote name='BrendanMcF' date='Apr 6 2010, 20:09' post='4277244']
http://www.stop43.org.uk/


This is not just a question of legalising the useage of images without the copyright holder's permission in my opinion.

I suspect it is to legalise the principle so that HMG can do the same thing with anything that you as an individual apparently own or have control over. This is simply an extension of the 'All property is theft' malevolence. Thus it starts at a level or in a field which has an esoteric or (relatively) limited audience (i.e it wont affect the masses) and gradually intrudes into more and more areas. A form of ideological 'creep' methinks.

Nothing is safe or guaranteed within the current status quo.

#10 BrendanMcF

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Posted 07 April 2010 - 15:17

In researching a site today for another thread, I discovered that I was unable to cut and paste a section of prose and got a message flashed up telling me that it was copyright protected. I then tested a photo on the site and got the same message. I have encountered this before on occasion, but it does beg the question as to why this solution is not more widespread?


Switch off javascript and reload the page will always defeat this trick, or simply view the source, or save the page...

This kind of protection is pretty lame, a 5 year old could bypass it, which is why so few bother with it. If a web browser can render it, you can save it, it's that simple. The only way to stop people using your text or pictures is to not put it on the web, or to hide it in a protected area only accessible to those who you want to have access.





#11 elansprint72

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Posted 07 April 2010 - 16:07

As you may imagine, this has been a topic of some discussion in photography circles; I even watched some of the debate in the HoC live yesterday (I counted a maximum of 26 MPs present plus a very few on the cross-benches).

There is, however, a chink of light, it looks like Section 43 is toast:


www.theregister.co.uk/2010/04/07/gene_hunt_stop43/


I'm afraid that you will have to copy and paste the link; this forum's antique software is playing silly buggers; again. Worth a look to see the Quattro posters- an own goal from each side. :rotfl:

Edited by elansprint72, 07 April 2010 - 16:07.


#12 Geoff E

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Posted 07 April 2010 - 16:41

http://www.theregist...ne_hunt_stop43/

I think it prefers to include the first 4 letters of the link.

#13 Marc Sproule

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Posted 07 April 2010 - 18:10

Semi-related to this thread is the link I've included here. It is a free service that will search their database to see if the image you enter is being used on the net.

It's simple, straight forward and self-explanatory.

Note that there are billions of images on the net and tineye doesn't have all of them in their database but it can be a useful tool.

http://www.tineye.com/

#14 elansprint72

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Posted 08 April 2010 - 07:19

Thanks, Geoff, I tried that but..... didn't work.

And a big thanks to Marc, that is a very useful tool and I've already had a result!



#15 Rob

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Posted 08 April 2010 - 08:14

Clause 43 has been removed from the bill.

Yay :)

#16 elansprint72

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Posted 08 April 2010 - 12:43

Clause 43 has been removed from the bill.

Yay :)


Excellent news. :)


#17 Marc Sproule

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Posted 08 April 2010 - 13:06

Pete Taylor:

You are most welcome. It can be a very useful tool. As tineye expands the database I'm sure it will help many others too.



#18 RTH

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Posted 08 April 2010 - 13:23

What exactly is or was clause 43 chaps ?

What was going to happen then that will not happen now.

Is there now, as a result of this mad scramble to force a Bill through on the last day of a 13 year regime, anything to be applied to either professional or amateur photographers that is in anyway detrimental or restrictive in law ?

I had presumed most of the act was about downloading music & feature films ?

#19 Rob

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Posted 08 April 2010 - 13:37

What exactly is or was clause 43 chaps ?

What was going to happen then that will not happen now.

Is there now, as a result of this mad scramble to force a Bill through on the last day of a 13 year regime, anything to be applied to either professional or amateur photographers that is in anyway detrimental or restrictive in law ?

I had presumed most of the act was about downloading music & feature films ?


Clause 43 stated that if you couldn't trace the owner of an orphan work, you could pay the government some money instead and that would then allow you to use the work.

However, there was no mention as to how extensive a search for the owner needed to be. Thus meaning that you didn't really have to look for the owner at all.

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#20 alansart

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Posted 08 April 2010 - 13:43

Clause 43 stated that if you couldn't trace the owner of an orphan work, you could pay the government some money instead and that would then allow you to use the work.

However, there was no mention as to how extensive a search for the owner needed to be. Thus meaning that you didn't really have to look for the owner at all.



...and of course the Government would hold that money and hand it over when the owner was found. Air Traffic Control at Manchester Airport have just had a warning about flying pigs ):



#21 Stephen W

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Posted 08 April 2010 - 14:06

Clause 43 stated that if you couldn't trace the owner of an orphan work, you could pay the government some money instead and that would then allow you to use the work.

However, there was no mention as to how extensive a search for the owner needed to be. Thus meaning that you didn't really have to look for the owner at all.



...and of course the Government would hold that money and hand it over when the owner was found. Air Traffic Control at Manchester Airport have just had a warning about flying pigs ):


Which just goes to prove that you can trust Gordon Brown as far as you could throw him! :mad:

#22 Terry Walker

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Posted 08 April 2010 - 14:12

Basically, if you found a bicycle parked by a shop, and rode it away, and couldn't find out who owned it by glancing at the sky, it was yours.

Thief's Licence.

#23 elansprint72

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Posted 08 April 2010 - 15:50

Which just goes to prove that you can trust Gordon Brown as far as you could throw him! :mad:



Don't really see the point of dragging politics in here, I don't trust any of the thieving bastards, as it happens, particularly not my current MP George Gideon Oliver Osborne, 18th Baronet Ballentaylor (when his old man croaks). However, I did have Neil Hamilton as my representative in the past too. :rolleyes:

#24 Giraffe

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Posted 08 April 2010 - 16:14

not my current MP George Gideon Oliver Osborne, 18th Baronet Ballentaylor (when his old man croaks).


Posted Image
By giraffe138, shot with N95 8GB at 2010-04-08

I'm actually quite pally with George, pictured here with my old pal (& ex-Ferrari distributor for Kuwait and through no fault or choice of his own at the time, Baghdad!) Omar Ashlan in his gallery in Knutsford. Nice chap, but I wouldn't want to follow him into battle.................... :drunk:

Edited by Giraffe, 08 April 2010 - 16:16.


#25 Alan Cox

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Posted 08 April 2010 - 18:56

And a big thanks to Marc, that is a very useful tool and I've already had a result!

Yes, thanks Marc for that link. Like Pete, I have tried it, with a handful of images, and have already found two of them posted on some cretin's Flickr pages.

#26 retriever

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Posted 08 April 2010 - 19:51

I am pleased that this topic has finally received responses from fellow Tnf'ers and very pleased that clause 43 which was what I and others who own large and important negative archives were concerned about has been dropped or deleted from the bill.

I must agree with Elansprint72 that personal political comments are not relevant to this discussion - nor I might add is the posting of pictures by Giraffe of his friend George Osborne and another friend. This may be seen by some as a needless and off topic submission trivialising what is after all an attempt of serious discussion by those whose commercial interests were at stake by the passing of this bill in its original entirety.



#27 Marc Sproule

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Posted 08 April 2010 - 20:05

Alan:

Report him to flickr, they'll ban him. If you're not a member you can join for free. You don't have to upload snaps to join.



#28 alansart

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Posted 09 April 2010 - 08:28

Yes, thanks Marc for that link. Like Pete, I have tried it, with a handful of images, and have already found two of them posted on some cretin's Flickr pages.


I've found a few people using illustrations from my website.

It's also clever as it recognises the image and can pick it up if it's been renamed or mixed in with something else.

I searched for THIS

and although THIS is also part of my website. The file has a totally different name but includes the same image as part of a montage and the software has recognised it.

Edited by alansart, 09 April 2010 - 08:29.


#29 Alan Cox

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Posted 09 April 2010 - 13:49

Alan:

Report him to flickr, they'll ban him. If you're not a member you can join for free. You don't have to upload snaps to join.

Thank you for the advice, Marc. Much appreciated.

#30 elansprint72

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Posted 09 April 2010 - 17:02

I've found a few people using illustrations from my website.

It's also clever as it recognises the image and can pick it up if it's been renamed or mixed in with something else.

I searched for THIS

and although THIS is also part of my website. The file has a totally different name but includes the same image as part of a montage and the software has recognised it.



Now that REALLY is clever- what a great tool. I've forwarded it on to many fellow photogs, all seem impressed.

Edited by elansprint72, 09 April 2010 - 17:03.


#31 bradbury west

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Posted 09 September 2011 - 17:46

At least someone is still talking about Copyright laws.
http://www.independe...ng-2351636.html
Roger Lund

#32 E1pix

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Posted 09 September 2011 - 19:43

As a long-time stock photographer buying my bread with work I've paid to produce since 1975, I live this issue every day. The advent of digital photography has opened a huge can of worms, and many of my contemporaries have bailed out because of it. Photography has or is going the way of music, in terms of the public claiming ownership of my work.

One of many examples.... I sold limited rights to a US State tourism board in 2004, as part of much business I have done with them over the decades. The limited rights payment and proper relationship maintenance justified any reluctance I had in the matter. The idea was that legitimate photo users — meaning media outlets — had to sign in to an account, verifying that the images could only be used to promote tourism. The problem was that the publisher made promises in writing that weren't carried out in the end, making it a legal issue that was simply too costly to pursue. The images have appeared in dozens of non-tourism usages and as we all know infringement is not the same as collecting for such malpractices. Here in the States, it is relatively costly to do national copyright protection, and with a body of over 50,000 images such as mine, it is not realistic. And without that national registration, the courts do not recognize copyright the same as they do with that registration, i.e., the works' value is lessened dramatically.

I was referred to Tineye as well, and when I search those images I get literally dozens of sites using my works for any and all purposes well beyond "tourism." I have certainly considered pursuit, but know the realities of this and it simply isn't worth the efforts and costs. This is the problem, at least over here, and I do not know the solution.

I miss the pre-digital days, what we have now is wholly substandard. My art has become science, and I am strongly considering going back to arts that technology can't ruin on this level.



#33 elansprint72

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Posted 09 September 2011 - 21:54

As ever there seems to be one law for the rich and another for the rest of us who cannot afford to hire fancy lawyers. E1 hits the nail on the head.

I've sold photos on a "single world-wide use" basis, only to find them cropping up all over the place years later; credited to other folks... and I'm not even a particularly talented snapper!

If only I could paint... As I have said before (probably elsewhere :rolleyes: ) the answer is to only take REALLY bad photographs which nobody in their right mind would consider stealing.

Incidentally, there are more outfits like Tin-eye (sp?) available now, which only makes things worse. :mad:

Edited by elansprint72, 09 September 2011 - 21:55.


#34 E1pix

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Posted 09 September 2011 - 22:40

As ever there seems to be one law for the rich and another for the rest of us who cannot afford to hire fancy lawyers. E1 hits the nail on the head.

I've sold photos on a "single world-wide use" basis, only to find them cropping up all over the place years later; credited to other folks... and I'm not even a particularly talented snapper!

If only I could paint... As I have said before (probably elsewhere :rolleyes: ) the answer is to only take REALLY bad photographs which nobody in their right mind would consider stealing.

Incidentally, there are more outfits like Tin-eye (sp?) available now, which only makes things worse. :mad:

http://www.tineye.com/

Thanks, Elan.... I often wonder about building a cooperative of photographers who finance a copyright attorney who does nothing else all day but pursue infringements.... with the media's help perhaps that could make a difference. That is, if we wish to trust attorneys more than the infringers.;) Sounds crazy I know, but so did Facebook.

I know it doesn't sound like much of a compliment.... but after viewing your work for a while, your pics are as nice and thus as steal-worthy as anyone's. I'm sure we both initially didn't set off, cameras a hangin', with this as a goal in mind. :well:

Sorry you've been screwed, too. They say "Copying is a great compliment," or however that BS goes, to which I say "NO, it's stealing!"

#35 elansprint72

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Posted 10 September 2011 - 08:34

http://www.tineye.com/

Thanks, Elan.... I often wonder about building a cooperative of photographers who finance a copyright attorney who does nothing else all day but pursue infringements.... with the media's help perhaps that could make a difference. That is, if we wish to trust attorneys more than the infringers.;) Sounds crazy I know, but so did Facebook.

I know it doesn't sound like much of a compliment.... but after viewing your work for a while, your pics are as nice and thus as steal-worthy as anyone's. I'm sure we both initially didn't set off, cameras a hangin', with this as a goal in mind. :well:

Sorry you've been screwed, too. They say "Copying is a great compliment," or however that BS goes, to which I say "NO, it's stealing!"



A co-operative- what a great idea, we could give it a snappy name.... what about "Magnum"?


Damn; too late, as usual. :rotfl:

#36 E1pix

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Posted 10 September 2011 - 16:56

A co-operative- what a great idea, we could give it a snappy name.... what about "Magnum"?


Damn; too late, as usual. :rotfl:

I was thinking "CSI," for "Copyright Slayers, Incorporated." :eek:

I like the irony of the use of your word "snappy." :wave: Or am I infringing? :lol:

#37 bradbury west

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Posted 19 January 2012 - 13:36

I thought it might be pertinent to post this link;
http://www.telegraph...at-is-SOPA.html
here, as well as on the "photo-nicked?" thread. It seems there are many forces anxious to make copyright a thing of no consequence. The film and music industry would seem to be conspicuous by their silence on this one.
Roger Lund

edited to add
http://www.dailymail...PA-protest.html

Edited by bradbury west, 19 January 2012 - 13:45.


#38 Terry Walker

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Posted 19 January 2012 - 15:17

Sadly for so many of us, anything digital can be copied in a flash (or on a flash!) and be multipled indefinitely. It's a fact, which can't be avoided. And no matter how hard any Government might try, censorship of the Net as envisaged by either of the two laws is simply not going to work without an immense amount of collateral damage. In fact, it probably won't work at all, but just bugger eveything up. In its core, it is in effect blanket censorship to be arbitrarily applied by a US Government agency at its whim - truly Stalinesque.

Even if these laws came in, now that I pause and put down the can of beer and activate the little grey cells, how long do you think it would take before there are dozens of nifty evasion programmes available which nullify the whole business?

As a creator, in a small way, of things which are digital, and which are no doubt being stolen even as I write, I don't like digital theft one bit.

But I like even less the idea of the US Government having the amazingly draconian power set out in the Bills.

Is there any practical answer? Frankly, I doubt it.

We can't squeeze mushroom clouds back into their uranium spheres (thanks St Isaac) and we can't turn back the clock to a more-or-less piracy-free world. We're going to have to live in this brave new world. The cat's out of the bag and about to bite us on the balls. (And other metaphors I'm too tired to think up).

As Mr Pratchett has observed mildly, it's an embuggerance.

As Mr Pepys observed frequently, "and so to bed." It's nearly midnight here.


















#39 bradbury west

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Posted 06 July 2012 - 10:34

Alan Cox has wisely posted this on the photographers' thread, but it may be useful to bump this one with the new pertinent link about proposals for copyright changes
http://www.theregist...ht_white_paper/
Roger Lund