Gregory Maxwell wrote:
On 7/21/06, Anthony <wikilegal(a)inbox.org> wrote:
Here's one: when people send in a DMCA
takedown notice, remove the
material, notify the uploader that her materials have been removed
(via their talk page and email if the address is known), and provide
them with an opportunity to send a written notice to the service
provider stating that the material has been wrongly removed.
[snip]
Making this our practice for handling copyright would put us in a weak
position in several respects.
1) It is ethically questionable. When we distribute someone's
commercial work tagged as free content, we risk seriously letting the
genie out of the bottle. It would do us no good to gain a napster-like
reputation.
What makes it unethical? Is it any more ethical to deprive people of
due process if they can make a reasonable legal case. This is not a
matter of agreeing to every stupid argument that comes along. This has
nothing to do with genies or Napster.
2) It creates panic-intensive situations.... When a
violation is found
it's likely that there will be a lot of them creating a lot more work
to quickly clean up.
If the copyright paranoiacs want to put themselves into a panic, why
should the rest of us fall into line with them. Each case needs to be
judged on its own merits.
3) If we do enough of it, it wouldn't be hard to
convince a judge that
our behavior is negligent (we already have a lot of egregious
infractions and we're trying.. I can only imagine what we'd have if we
didn't try) and get a lovely injunction issued that required us to
remove all images that we can't prove are free. :(
Each incident is separate, and other instances would be inadmissible as
evidence to prove that a specific incident is an infringement. This
position is pure speculation.
But most importantly:
4) Wikipedia is intended to be and advertised to be Free Content. By
only removing copyright violations that people have complained about
we would be choosing to fail at this goal... and in doing so we would
make the fruits of our labor less useful to the world.
Ultimately, only a judge can decide whether a contribution is in fact a
coyright violation. We may suspect copyright violations; we may demand
that a contributor accept responsibility (and define what that means),
but we can rarely make a definitive statement that a particular writing
or image is in fact a violation.
In short, while being a nice legal fall-back, the safe
harbor terms
are not anything we want to rely on in terms of our copyright policy.
It's not merely a fall back, but a first step in arriving at a formal
decision. When a properly composed notice is issued we must remove the
offending material.
Ec