I saw June Rose the other day and asked her what results came from the Boothbay Art Foundation's investigation into The New England Cultural Database Terms of Agreement, which I have learned, through June, had been referred to the BRAF lawyer. June relayed that the decision is to do nothing since it is believed that NECD cannot enforce it's terms of agreement. In my view, such a decision is a moral and ethical defeat, and fails to address the question as to why an "unenforceable" Terms of Agreement is there at all. I personally agree that The NECD TOS is unenforceable, but also take into consideration that it is for perpetuity. It is unpredictable how the future legal climate will evolve. I point to to two articles, by Thomas Hartman, which describe the questionable legality of corporate person hood and provide documentation thereof. As per Hartman's article, corporate person hood was given legal status, not by a supreme justice decision, but by an interpretation inserted by a court clerk. Corporate person hood is by now so entrenched in our system that it seems unlikely to be effectively challenged
I received an answer to the letter which I sent to Alden Wilson, Director of The Maine Arts Commission ( See archives beginning on May 19 2007). The point of view of The Maine Arts Commission is that The NECD Terms of Agreement is acceptable because NECD is only collecting names and addresses; and because the artist is protected by copyright laws. I was advised to address my questions to The New England Foundation For the Arts.
I sent the following response to The Maine Arts Commission, receiving a single sentence answer, stating that, since my questions are of such a "technical nature", it is suggested that I contact the New England Foundation for the Arts directly.
Dear Lisa Veilleux,
You have stated that
"The Policy states that the information being collected is: “Your organization's name, street address, postal address, website address, e-mail address (for general inquiries), year founded, year terminated or dissolved (if applicable), a brief description of your organization, and the director's or manager's name.” While this is content, it’s content which is publicly available from other sources--and voluntarily provided by the user. "
However you have not provided a publicly available link where one can find such a statement. I searched for the above statement in the NECD Terms of Agreement , and it is no where to be found. The Terms of Agreement is what the user is asked to sign.
The terms of Agreement provides all inclusive rights to The New England Foundation for the Arts, and those rights are claimed "for perpetuity" and are "assignable" and are "unlimited". If The Maine Arts Commission is justifying the NECD Terms of Agreement by claiming that the "submitted content" is limited, as you so describe, then where is the corresponding statement in the Terms of Agreement? The Terms of Agreement is "for perpetuity", and so one must consider how it might affect the financial fortunes of artist's descendants, who may not be in the position to compete against a well-funded organization like The New England Cultural Database. Statements made outside of the terms of agreement have questionable legal standing.
If the "submitted content" is limited, as you so describe, why must the user agree that The New England Cultural Data Base has "unlimited, royalty free, assignable" rights to the submitted content? Even if one accepts the validity of statements made outside of the TOS, it can be interpreted as giving The New England Foundation for the Arts the right to sell or otherwise assign the rights to the user information to whoever NEFA so chooses, which many would find objectionable, even if they believed that the submitted content is limited in the way that you have described. The sale of user information deserves consideration as a reason why the user must "waive and never assert moral rights over submitted content". ( I have yet to come across another TOS that requires the waiving of moral rights.)
The NECD Terms of agreement states
" You hereby give Us the right, however, to create a deep link to certain pages on Your website for the purpose of offering access to content that We, in Our sole discretion, determine to be appropriate for the NECD",
The above statement contradicts what you have written in your response. Most artists web site's contain pages with images of artwork. The NECD terms of agreement allows for The New England Cultural Database to go into a website and link to what ever content it wants. This is a justifiable interpretation of the actual language of the actual Terms of Agreement. The law is a matter of interpretation and so, once again, a court decision is the final arbitrator of the meaning of this contract.
You then state that "Copyright protects creative expression and the NECD directory does not contain work samples or non-public information"
but since the NECD Terms of Agreement requires the user to "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). the validity of copyright protection is undermined unless the NECD Terms of Agreement is challenged in a court of law.
I have long been aware of the public dangers of non-negotiable online user agreements but this agreement is the most unacceptable agreement that I have ever come across. It is clear that the New England Cultural Database is not meeting it's goals of representing all cultural activities in New England. If I believed the information I find on NECD, I would believe that non-profit organizations out-number free enterprise cultural activity, but I can readily calculate from personal knowledge, many local enterprises that are not listed on the New England Cultural Database - out-numbering those that are listed. The New England Cultural Database is defeating it's own purpose with this Terms of Agreement. I cannot find other voices of dissent, but neither can I find media that will publish my own concern, and so it is reasonable to imply a cultural oligarchy that has the power to silence dissent rather than responding to criticism. This is essentially Un-American. and, in my view, quite dangerous the future of democracy.
Sincerely,
Mackenzie Andersen
I sent, or thought I sent, an email to the Maine Arts Commission explaining that I wrote to Maine Arts because they are a government agency, serving the citizens of Maine, but that The New England Foundation For the Arts is a public charity and a tax-exempt corporation and it is unclear to me who NEFA represents. I stated that I wrote to the Maine Arts Commission because it the Arts Commission's job, in my view to protect the rights of the artist.
That email has disappeared from my computer, found neither in sent items nor drafts, which is quite mysterious, and about which, I can draw no conclusions. I was certain that I had sent it. Needless to say, it did not receive a response.
I am disappointed in both the Boothbay Art Foundation and The Maine Arts Commission and I feel that both organizations are failing in their responsibilities to the people. The Boothbay Arts Foundation is selling space on it's website where the artist can display their work. Regardless of whether one believes that The NEDC Terms of agreement is enforceable, the NEDC terms of agreement explicitly states that the user gives NECD the right to "deep link" to any page on the user's website, which can arguably be interpreted as including the paid pages of artists work. I believe that it is a matter of ethics that the Boothbay Region Art Foundation should be open about the agreement that has been signed with NECD, as a matter of public information, and it should be a matter of course that the information is provided to those that display images of their art on the Foundation's website. The individual artists should be given the option of deciding whether they think the NECD terms of agreement is "harmless" through being "unenforceable".
Which brings us to the question of if the NECD terms of agreement is so unenforceable, why doesn't NECD simply change it, rather than leaving it up there to generate reaction? And why has some mysterious power engineered the disappearance of a topic I started about the NECD terms of agreement from Google search results, - a topic which had formerly been second only to the NECD website?
As For the Maine Arts Commission, it is supposed to represent the people, but it is clear that as a private individual, I have already used up my allotment of attention. If one can't receive a satisfactory response from the Maine Arts Commission, - a government agency, that is also a funding partner to The New England Foundation For the Arts, does the Maine Arts Commission really expect that NEFA will give a private individual something other than a rhetorical response? What does the Maine Arts Commission really mean when it refers my questions to an outside agency (a tax exempt corporation), citing the questions "technical nature", by way of explanation? Is one to interpret such an action as meaning that the questions are too technical for the Maine Arts Commission to answer? As funding partners to The New England Foundation for the Arts, an understanding the technical nature of the NECD Terms of Agreement, falls into realm of responsibility which The Maine Art's Commission has to the citizens of Maine.
It is a growing global occurrence that corporate states are developing greater power than nation states. In the act of referring authority to a corporation, The Maine Arts Commission, a state government agency, is echoing of global relationships between nation states and corporate states.
Contrary to the claim that NEFA is "only collecting names and addresses", The Maine Arts Commission stated the following in the spring of 2004
The NECD will serve as a back end to NEFA's developing Online Cultural Marketplace, a transaction-based online booking service that allows New England artists to market their products and interact directly with presenters.
The above quote is found in this Maine Gov Newsletter
The New England Foundation for the Arts may be currently only collecting names and addresses, but the above projection describes greater intentions, of which, the Maine Arts Commission is cognizant.
