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The New England Cultural Data base, does not define "content", but it does state policies about protection against infringement of copyrights and intellectual property. Below is an excerpt , You can read the entire agreement here
...WAIVE ANY AND ALL CLAIMS OR REMEDIES WHICH YOU MIGHT OTHERWISE BE ABLE TO ASSERT AGAINST US UNDER ANY THEORY OF LAW (INCLUDING, BUT NOT LIMITED TO, INTELLECTUAL PROPERTY LAWS) THAT ARISE OUT OF OR RELATE IN ANY WAY TO THE CONTENT AT THIS SITE OR OUR RESPONSE, OR FAILURE TO RESPOND, TO A COMPLAINT.
Most people who would be signing this contract are unlikely lawyers. Those who cannot, or will not, hire the services of a lawyer to review the terms of agreement are left to rely on private sensibilities. Common sense can determine that the agreement is laden with double messages.
- The NECD TOS states that NECD does not allow content that may constitute infringements of
intellectual property or violations of federal state or local law,. This
statement should encourage
trust in NECD.
Another statement says that the signer agrees not to pursue NECD under the law, If the signer
agrees not to pursue NECD under the law, then can NECD be governed by law?
Upon searching the NECD TOS agreement, for the word "copyright", I did not find an explicit statement recognizing that the submitter of the content retains the copyright. There are many provisions forbidding the user from posting material protected by copyright, but no statements to the effect that NECD honors the copyright. However as posted, above, there is a stipulation that the user agrees never to assert any claim against NECD under any theory of law. To my layman's interpretation ( which is the type of interpretation that most users of NECD have to rely upon), There is a loophole in the agreement, which permits the user to post material which for which the user has copyright authority. However the Terms of Agreement never specifically state that NECD will honor the user's copyright, The forbidding language about copyright infringement is always framed in terms of what the user may or not do, which includes that the user may not assert any claims against NECD under any theory of law.(Remember that this is an agreement for perpetuity). The Terms of Agreement would have one believe that NECD can exclude itself from recourse by law. Whether the terms in this contract are legally sanctioned is another question, requiring a court decision.
NEFA can afford the services of highly qualified lawyers who could have written a Terms of Agreement that withstands examination by the ordinary lay person, but NECD didn't do that. One might wonder why NECD didn't write a more trustworthy agreement, and speculate that the expectation is that most people won't bother to read the terms of service agreement, the same conclusion that I have drawn about our many local arts organizations that have signed the NECD agreement.
A legal agreement that lasts for perpetuity has to be considered in the context of the extremes of uman character (for a good example of such considerations, read the Federalist Papers written by the framers of The United States constitution).
The NECD Terms of Agreement threatens the artists rights to the fruits of their own labor, with potential loopholes allowing that those rights (as per submitted content) can legally be usurped by the well-financed bureaucratic organization, and imitating Marxist philosophy. By co-incidence of not, the company that provides the technology for NECD is called Cultural Logic, which also happens to be the name of a Marxist publication (with an impressive list of editors and advisers consisting of 45 academics from almost as many universities across the United States) The NECD Terms of agreement states that there may be additional terms of service incorporated by Cultural Logic, whose current website is but a paragraph long with a single link to NECD . Very little information is offered about Cultural Logic, which is why I did a Google search and came upon the Marxist magazine of the same name ,as the numero uno Google search result. The search results also included several other books that use the term "cultural logic", in their title. Those books are described using the language of "globalization" and "late capitalism", but not necessarily Marxist, at first glance.
NECD TOS: Our site is being hosted by Cultural Logic, Inc. ("CLI"), a third
party service provider, which may also have an acceptable use policy to which We are bound. This policy, if applicable, is expressly incorporated by reference herein to the extent that it applies to Your conduct while using Our site. Any violation of the CLI acceptable use policy, if any, by You shall constitute a violation of this section. For more information, You may view the CLI website at: http://www.clinc.us/.
(It is not my intention to suggest that NEFA is a Marxist organization, is not my intention to suggest that NEFA is a Marxist organization, but on the other hand isn't our culture about ripe for a TV series involving a covert Marxist plot to transform America, operating through hidden manipulations on unsuspecting organizations and centered in the hotbed of American Marxism – American universities?)
It can be considered that by presenting a Terms of Service Agreement on a state-partnered site, that the National Endowment for the Arts is supporting the arts, and also the legal industry. What's next? Is the NEA going to try to correct the obvious social legal imbalance by creating a program for legal advice for the masses who can't afford a lawyer to interpret such a contract?
We live in a world of corporations and corporate states, increasingly competing with the authority of nation states. The laws of nation states apply within the borders of nations.
- If NECD claims "worldwide" and "unlimited" rights over content. What are the laws that apply on a "world wide basis?
- Why does NECD need to claim "unlimited" rights over submitted content" ? See Comparison with Google's TOS
Why does NECD have a clause in which the signer agrees to "waive and never assert moral rights"?
How might the statements be put into use? Is the public to trust an organization merely because of it's name, or because it is "non-profit" or state-sponsored or state-partnered? And will any organization retain any status for "perpetuity"?
Why does NECD even need a terms of agreement? The Maine Arts Commission offers many services to artists for free and publishes content without a terms of service agreement.
NEFA offers many reports online, free of charge, which one can download without signing a legal
agreement, which amplifies the question: Why is a user agreement is required for NECD? And adds the question - Can NECD offer any cultural reports that cannot be found elsewhere without signing away one's rights - including one's moral rights?it is stated that NEFA administers and maintains NECD, but not stated who owns NECD ( who benefits from the asserted rights over submitted content). There is a statement that NEFA administers the Database in partnership with states arts agencies of the New England States, but "We," "Us," "Our" are identified with NEFA, so apparently the "party of interest" is NEFA. But who is NEFA? NEFA is described as "in partnership" with the "states art agencies of the new England States",as opposed to "A partnership of the arts agencies of New England States". NEFA is a separate entity. It is assumed that NEFA is a nonprofit organization, but that is never actually stated. In the annual report it is found that NEFA is a public charity and has received qualification as a tax-exempt corporation under the provisions of the U. S.Internal
Revenue Code Section 501(c)(3). BINGO! The beneficiary of the rights asserted in the NECD terms of agreement, is a public charity, a corporation with tax-exempt status that operates in partnership with state agencies.Do we really need a government sponsored data base? Isn't the Internet a free-form cultural database? How reliable can a "cultural impact" report be when the requirement for submitting content is the signing of a dubious legal agreement? The reports offered by NECD reflects only those institutions and individuals that sign the terms of service agreement. The rest of the cultural world is simply not on the DECD map -although you can find many of those, outside of the DECD map, on the Internet (including on The Maine Art Commission
website) or down the street, as anyone knows who is reading this blog.
We are left with the following questions:
My advice is, play it safe: Don't sign. There are many other resources in which one can participate Consider that if Google can create a reasonable terms of Service Agreement, then why can't DECD? See a short comparison here
submit
your link to Andersen Studio'd American Art Colony Trail here – or your local link if you are a Boothbay Region Artist.
