On 1/21/06, Ray Saintonge <saintonge(a)telus.net> wrote:
Fastfission wrote:
I think in regards to Wikipedia policy there are
two options:
1. We reject all fair use images in favor of entirely "free" ones. One
could read this as a retreat from copyright holders (as you imply
above), or one could read this as the only genuine way to create truly
free cultural products. Commons embraces this approach (with the
latter reasoning), WP:En does not.
2. We approach fair use reasonably, not being afraid of using it where
we need to and with a philosophy of "least likelihood of anybody
thinking they could sue us and win."
[....]
It should be quite clear by now that I strongly support the second
option. Still I would be more inclined to base it on a fair-minded
attitude in preference to one based on what could happen in a law suit.
Fair mindedness involves taking into account the rights of others.
The way I've always viewed it, the best solution would be that there
is no copyright restriction on anyone, in any location, distributing
any Wikipedia article, along with any editorial changes which keep in
spirit with the original work (IOW, you can't just cut out everything
except for the picture).
There should certainly be no copyright restriction under US law on
anyone distributing any Wikipedia article without modification. The
way I see it, Wikipedia doesn't currently even provide *that*, though
to the extent it doesn't it's probably a violation of Wikipedia
policies.
I know that most of our
discussions have focused on images, but the fair use law that applies to
images is the same one that applies to text, and for me disallowing all
fair use text would imply disallowing properly attributed quotes of
one-sentence length.
It seems to me that a properly attributed quote of one-sentence
length, as used in Wikipedia articles, would fall under both of those
categories I gave above. Maybe I'm wrong. Do you know of a
jurisdiction which doesn't allow encyclopedias to include short
quotations without permission?
Purpose is key to one of the fair use texts, and
we have no way of controlling this in downstream users.
Sure, downstream users can always make *drastic changes* to change the
very character of the encyclopedia article. There's really no way to
avoid that. But I think you're trying for too much there. I think it
should be enough to allow the encyclopedia to be copied and
redistributed with modifications which remain in the spirit of an
encyclopedia. The purpose of Wikipedia is to make a free
encyclopedia. A pedantic interpretation of that might require the
concept of freedom to stand alone, but I see it as good enough to
require that the freedom only extend to use in an actual encyclopedia.
Perhaps we need
to assume that the downstream use will fail that test. Is it the most
important of the four tests? Since no one test alone is determinative,
can a usage which fails that test satill be fair use when it passes the
other tests? Once we answer that in a US legal context, we will have a
better idea of how to approach that problem in relation to other countries.
I think when analyzing the fair use one has to assume that Wikipedia
should be legally distributed for commercial purposes. That's pretty
much the only change. The German company which is redistributing the
German Wikipedia is a commercial enterprise, and it should be
perfectly legal for them to do the same thing with the English
Wikipedia.
We can't duck from the political motivation, but
it must remain
secondary. Before that can be a real motivation we need to be very
aware in the legal areana.
Ec
I've said for a long time that I think the first step is to define
what is meant by the "free" in "free encyclopedia", in much the same
manner as the FSF defined the "free" in "free software" (see
http://www.gnu.org/philosophy/free-sw.html). My current working
definition is essentially what I gave above ("no copyright restriction
on anyone, in any location, distributing any Wikipedia article, along
with any editorial changes which keep in spirit with the original
work"). It needs tweaking, especially in clarifying what is meant by
"any editorial changes which keep in spirit with the original work",
but I think it's close to what I picture the goals of Wikipedia to be.
But Jimbo has explicitly rejected this idea. He says that what he
means by the "free" in "free encyclopedia" is already clear. Unless
that's just a passive-agressive way of saying that he wants to
"eliminate fair use", I think he's horribly mistaken.
Anthony
