[WikiEN-l] Uploading images should be a privilige, not a right

[Ray Saintonge]

Gregory Maxwell wrote:

>On 7/24/06, Ray Saintonge <saintonge at telus.net> wrote:
>  
>
>>>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.
>>    
>>
>There is nothing unethical about removing content from our site which
>is in clear violation. Submitters of content are not entitled to due
>process. Wikipedia is not a courtroom.
>
Of course you have arrogated upon yourself the role of being the arbiter 
of violations.  Just because you oppose any kind of fairness in these 
issues, does not imply that this is a universal sentiment.

>It is, however, clearly unethical to distribute the copyrighted
>content of others without their authorization.
>
At the rate you're going it would be unethical to quote anybody without 
their authorization.

>>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.
>>    
>>
>We can not afford, in terms of liability or available resources, to
>make a legally sound deep analysis for every image on a case by case
>basis. A simplified approach is required. Fortunately our project
>isn't centered around distributing legally questionable content, so
>rules which are more conservative then they need to be legally are
>generally acceptable.
>
Why would you want to make these analyses on "every" Image?  My 
complaint is that you wouldn't want to make it on any.  Your approach 
isn't simplified; it's simplistic.  A certain degree of conservatism is 
beneficial, but there still needs to be room for reasonably 
knowledgeable people to defend what they fairly believe not to be 
infringement.

>>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.
>>    
>>
>Do you honestly believe that a judge would ignore evidence supporting
>a continued and willful violation of the law in making a
>determination?
>
Wilfulness is the element that distinguishes criminal from civil 
infringement; criminal infringement requires a much higher standard of 
proof.  Until now there has not been a single charge laid so there is no 
evidence for continued violation.  Proving continued violation presumes 
that every alleged infringement in the series be proven to be an 
infringement in its own right.

>>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.
>>    
>>
>It's a dangerous game you propose here.
>
What's so dangerous about insisting that contributors accept 
responsibility for their action, and that WMF clarify its role as an ISP.

>A majority of items taken down for copyright infringement are fairly
>clear cut: the submitter uploaded content for which he is not the
>copyright holder, no license grant has been provided by the copyright
>holder, and the material is clearly new enough to be covered by
>copyright.
>
A lot of them are clear cut; I'm not disputing that.  It will probably 
also be that many of the apparent violators will not be willing to do 
what it takes to accept responsibility for their material.  Simply 
making a bald and unsubstantiated claim of fair use is not enough.  Some 
reasonable legal rationale for inclusion would be needed.  This would 
apply to other reasons too, not just fair use.

>It would seem that you are proposing in these cases that we ignore the
>obviousness of the violation and wait for a properly formed DMCA
>takedown notice before taking action.  Since you're so sure that this
>is an acceptable solution are you able to provide the Wikimedia
>Foundation with indemnity from losses resulting from taking your legal
>advice?
>
Obviousnous is not obvious to everybody.  That term is primarily 
rhetorical.  In _some_ cases waiting for some kind of DMCA notice would 
be the proper course of action, though I suspect that many of these 
alleged infringements will be taken down long before we get that far anyway.

The losses up to the time of receiving and complying with a takedown 
order are solely a figment of your imagination, so it would be 
impossible to determine the value of the indemnity that you want.

>>>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.
>>    
>>
>It seems to me that you've forgotten that one of the two primary goals
>of Wikipedia is to provide Free Content.  We have failed at that goal
>when our site contains a huge number of copyright violations waiting
>for their DMCA notice to come in...
>
How many is that?  How did you arrive at that figure?

>So while it is necessary that we remove content once properly noticed,
>it is not sufficient for us to wait for that to happen.
>
A large part probably would still be removed if no one accepts 
responsibility for it.  And if it stays long enough the Statute of 
Limitations may apply.

Ec