Prison 'Enforces' Messaging Company's 'IP' Rights By Sending Prisoner To Solitary

from the intellectual-property-gone-mad dept

If you aren’t aware, the prison communications business is a massive boondoggle for the companies providing those services. Talk about a “captive market.” And the companies take advantage of that with absolutely insane rates for things like phone service, some of which became news not too long ago when an expert in this area estimated that the Serial podcast probably had a $2,500 phone bill for its 40 hours of calls with Adnan Syed.

But, of course there are other ways to gouge someone beyond just money. And, as the EFF’s Dave Maass has discovered, one major service provider in the space, JPay, forces any user to sign over all rights to any content sent via its system. The company is pretty explicit about this. In the “email” portion of its lengthy terms of service (you have to (1) have javascript enabled and (2) click on the email link to get these to show up), it notes the following:

If you can’t read that, it says:

INTELLECTUAL PROPERTY RIGHTS. You acknowledge that JPay owns all right, title and interest in and to the Service, including without limitation all intellectual property rights (the ?JPay Rights?), and such JPay Rights are protected by U.S. and international intellectual property laws. Accordingly, you agree that you will not copy, reproduce, alter, modify, or create derivative works from the Service. The JPay Rights include rights to (i) the Service developed and provided by JPay; and (ii) all software associated with the Service.

You also acknowledge that JPay owns all of the content, including any text, data, information, images, or other material, that you transmit through the Service.

There is a similar clause under the “video visitation” terms of service as well, noting that JPay owns those videos as well.

Now, you can understand JPay claiming IP rights on the service itself. But it’s that second paragraph that’s insane. Just to use the service, you are saying that JPay owns anything you send via the service. Anything. Maass points out this means that if a child sends a drawing to an incarcerated parent, JPay claims it owns the copyright on that drawing. Or, going back to Serial, all of those recorded calls with Adnan Syed? Well, if it had been done via JPay’s system, under those terms, JPay could (theoretically) claim a copyright interest in the recordings, and thus argue that Serial was infringing.

That might be (or might not be) a far-fetched scenario. But there are some very real world scenarios that are coming out as a result of this mess. You may recall a post we did back in February (also based off of excellent work by Maass), highlighting how the South Carolina Department of Corrections was adding new level 1 felony charges to anyone using social media while in prison. This resulted in some prisoners being given multiple years of solitary confinement for merely posting to Facebook.

Maass highlights a case where prison officials similarly punished a convict who recorded a video message via JPay, urging supporters to come to a hearing in his appeal effort. When asked why the guy had lost a bunch of his rights and was put in solitary confinement, the prison said it was merely enforcing JPay’s intellectual property rights, even if the company didn’t appear to complain about this at all (and, in fact, encouraged people to share the videos created under its system):

Valeria Buford has been running an Internet campaign to get her brother Leon Benson?s murder conviction overturned.  In August 2014, Benson used JPay to record a 30-second videogram thanking his supporters and asking them to attend an upcoming hearing in his appeal. Buford posted this to Facebook, but when prison staff discovered it, Buford?s JPay access was suspended and, according to the Indianapolis Star, Benson was disciplined, sent to solitary confinement, and stripped of good-time days. To justify the discipline, they claimed that they were simply enforcing JPay?s intellectual property rights and terms of service.

[….] According to court records, JPay told Buford directly that she was free to do what she liked with the videogram, including posting it to social media

Oh, and the reason there are court records on this is because Buford is suing, arguing that this whole thing violated her own First Amendment rights:

Buford is currently suing the Indiana Department of Corrections with the help of the American Civil Liberties Union of Indiana. Although Buford?s JPay access has since been restored, she argues that her First Amendment rights are chilled because she ?continues to face loss of her ability to communicate with her brother through [JPay] if she so much as posts an internet message from him.?  

But, as Maass notes, JPay could help out by doing something rather basic here: changing its own terms of service to not claim ownership over all content sent via the system, so that the prison can no longer use that as a bogus excuse to strip prisoners of service just for speaking out.

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Companies: jpay

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Comments on “Prison 'Enforces' Messaging Company's 'IP' Rights By Sending Prisoner To Solitary”

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24 Comments
Anonymous Coward says:

“You also acknowledge that JPay owns all of the content, including any text, data, information, images, or other material, that you transmit through the Service.”

So someone sending an mp3 of an Artist belonging to a Sony artist using this system is going to have JPay saying that they own it.

In that case JPay will be sued by Sony for copyright infringement for distribution as JPAY claims to own the mp3 according to their terms and conditions. /sarcasm

Anonymous Coward says:

Copyright violation -- Federal suit possible?

As I read the Copyright Act (US CODE TITLE 17), Buford owns the copyright to her work and has NOT done anything Federally recognized that might transfer title to JPay or to the State of Indiana. She should be able to sue both in Federal court over the matter; if she has a cooperative judge, she might even follow the precedents of the Scientology cases and get a warrant to engage in an ex parte seizure of JPay’s computers for examination, to discover detailed evidence of the copyright infringement !

Kenneth Michaels (profile) says:

Re: Copyright violation -- Federal suit possible?

With respect to the second paragraph: “JPay owns all of the content, including any text, data, information, images, or other material, that you transmit through the Service.”

Owning the content is different than owning the copyright to the content. Just like you can own a physical book (content) without owning the content. JPay would appear to be saying that you can’t ask them for the stuff that you sent through the service – JPay is free to keep it and delete it.

With respect to the first paragraph, yes, JPay is claiming ownership of the copyright to the software and the system, not to the content. This is a great example of the wrong use of the term “intellectual property” when other terms would have been better.

Anonymous Coward says:

As I read it, the clause isn’t enforeceable because it only states that you agree that the transmitted content belongs to JPay. It doesn’t stipulate that JPay owns the copyrights on the “content.” So they only own their copy of the “text, data, information, images, or other material.”

Beyond that, an assignment of copyright must be in writing and signed by the assignor and the claimant must register the copyright to use it against someone. Even if it did attempt to assign copyright to JPay, that would likely be an unconscionable clause. If a prisoner has no other means of communication, then they are being coerced.

Anonymous Coward says:

Re: Re:

You also acknowledge that JPay owns all of the content, including any text, data, information, images, or other material, that you transmit through the Service.

When will lawyers learn to write terms of service in a fashion people can understand, like:-
Jpay will make any necessary copies of what you transmit to provide the service of delivering it to the recipient.

which is what I think they are trying to say.

John Fenderson (profile) says:

Re: Re: Re:

I don’t think that’s what they were trying to say. They could have just said that (or copied the wording from other agreements that say this if they were stuck for words). I think they said what they meant. They have a captive audience, after all, and eagerly milk it for every little thing they can get. Why wouldn’t they want to own everything as well?

Anonymous Anonymous Coward says:

Consumers TOS

Would it be possible to write a Consumers Terms of Service Acceptance that basically states if you want your IP to be used in any way shape or form by us, then you must get off your high horse and capitulate to the terms of the US Constitution (or something more eloquent and devastating by those that know how to write pretzel language like lawyers) in such a way that any one of us that signs it forces commitment on the sending party?

Or is that just wishful thinking?

dr evil says:

not an issue

Unless there is a section that says ‘invalidation of one part of this contract does not invalidate the remainder’ this fontract will be found invalid because copyright cannot be reassigned this way .. if it can, show the caselaw… and just for laughs, start sending as much illegal shite as you can .. /nosarc

Just Another Anonymous Troll says:

This is especially ridiculous because copyright and ToS’s fall under the purview of civil law, so the prison should be keeping its grubby fingers out of it.
But hey, let’s just abuse the inmate for the lulz, claim some BS reason, and everyone will walk away because no one cares about criminals!
-whoever did this

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