Nobody would ever claim that it means "whatever is useful to us." But I think the "nature of the use" aspect of the "fair use" clause would come into play here: the nature of the use is, simply, to help make sure that our use of the images in the articles (which is clearly their primary use) is properly done, and it allows us to take inventory of all such images. The effect upon any copyright holder of such tiny images being arranged in such a way would be marginal. You might as well argue that the use separate "Image:" pages for images is a fair use violation, since on those pages the actual image file is not being used under narrow "fair use" provisions. I think any judge would buy the argument that the real "fair use" question is how they are used in the primary content of the encyclopedia. In any event, "fair use" is legally rather ambiguous -- I think though that this is a fairly "low risk" version of "fair use", that is, it is unlikely to make anybody think that they would have a very good case for suing us. Categorization helps us find, avoid, and change "high risk" and "medium risk" cases (for example, in retagging all images with a {{poster}} tag to new use- and content-based poster tags, a large effort which was recently completed), which are the ones to worry more about. In my non-lawyerly opinion. FF On 9/27/05, Ryan Delaney <ryan.delaney(a)gmail.com> wrote:

"Andrew Lih" <andrew.lih(a)gmail.com> wrote in message news:2ed171fb05092701414ca01dbd@mail.gmail.com... [snip] No argument. However this is not what I am referring to. If you add [[Category:Pictures of Ford cars]] to that page, the picture will then appear on the appropriate page **as a member of that category**. Not illustrating the category...not describing it...simply as a **member** of the category. Some people seem to think that our Fair Use policy should be so draconian that this kind of picture should not be allowed to belong to any category, simply because the automatic display of the image's thumbnail on the associated category page constitutes violation of Fair Use. So if we attach a category to the {{Fair Use}} template (say [[Category:Fair Use Images]] for the sake of argument), we are apparently committing an offense by simply retrieving the category to inspect what images have been described as "Fair Use" for the purpose of verifying that the description is correct. This is the kind of nonsense up with which I am not inclined to put. I would like clarification or I will have to stamp my foot and pout. -- Phil [[en:User:Phil Boswell]]

On 9/27/05, Phil Boswell <phil.boswell(a)gmail.com> wrote: Again, fair use law has nothing to do with what we, personally, find unreasonable or draconian. If it is the case that having images listed in a category is incompatible with the law, then we shouldn't do it, period. You would have to show why this practice constitutes a fair use and the burden of proof would be squarely on you. As it happens, I think that whoever is raising this issue is making a pretty good point. - Ryan

Fair use is not a question of whether it is a black and white "compatible with the law" or "incompatible with the law". Fair use comes down to a weighing of factors and intent by a judge, and that only if you end up court. Hence I sometimes find it more useful to think about "fair use" in terms of "risk factors", for lack of a better phrase. "High risk" fair use claims are ones which could easily incite a copyright holder to sue Wikipedia, in part because the copyright holder would have a good reason to think a judge would be sympathetic to them. "Low risk" fair use claims are one which are not likely to ever get in front of a judge, because a copyright holder would find our fair use claims sufficiently robust as to not guarantee any easy legal battle. Hence the goal of articulating clearly our fair use rationale and claims -- the better articulated they are, and the more legally savvy they are, the more work they will do for us in reducing our general risk. I see this as pretty low risk, myself, for reasons already articulated. We are not using them in a way which generates us any profit; our use of them is strictly for indexing and sorting purposes; and the thumbnail images are of such low resolution that they, in and of themselves, could not possibly compete with any existing market. A better cause for argumentation (one which I think is still not a problem) would be image description pages, which can be accessed as "separately published content" from the article pages themselves, devoid of content alltogether in many cases. But I feel this is getting all too academic; none of this takes into account that most likely any judge would be quick to recognize that such things are simply technical hurdles necessary for the primary and most important use of the copyright image, which is part of our self-described "content". The low resolution of the thumbnail images would also surely be considered enough of a transformation to render them grossly less useful than the original copyrighted work in every respect. There has been at least one case which, though its circumstances were in some ways different, had this as an important element in the granting of a "fair use" decision. If there are reasons to think that this would not be a very "low risk" fair use claim, I'd be interested in hearing them. So far I've only seen "used in an article about the subject of the image" invoked which is less of a legal stricture than a Wikipedia policy used to make sure that "fair use" images are not applied willy nilly to things they should not be. It is a nice conservative policy which I on the whole support, but I think this interpretation of it is a little batty. Another similar Wikipedia policy which is not directly a legal one is the "don't use fair use if there are free alternatives." This is not because there is any law which says "if there were alternatives, you get no fair use claim," it is because if possible we'd like to avoid being at any risk at all, avoid even asking the question. I wanted to also note that most of the fair use image categories are not oriented around a single copyright holder, as "Pictures of Ford cars" would likely be. They are things such as "Pictures of political posters" or "Pictures of DVD covers" and things of that sort. Whether or not this difference is substantive or not depends on how you reason it, but I think it makes it clear that their arrangement in the category pages is simply indexical and is not about any systematic attempt to make further copyright violations easier. Again, this is just my reasoning on it. Not a lawyer, etc. FF On 9/27/05, Ryan Delaney <ryan.delaney(a)gmail.com> wrote:

On 27/09/05, Fastfission <fastfission(a)gmail.com> wrote: It seems to have been a passing comment on WP:CP - end of the Sept.25 entry. -- - Andrew Gray andrew.gray(a)dunelm.org.uk