[WikiEN-l] Next step in "fair use" cleanup?

[Ilmari Karonen]

KWH wrote:
> On 3/23/06, "Matt Brown" <morven at gmail.com> wrote:
>>
>>Fair enough.  Is it required that the original uploader provide the
>>fair use rationale, or can someone else?  If we require the original
>>uploader, that might be a problem.  If you're not the original
>>uploader, but provide a rationale, are you thereby assuming
>>responsibility for a copyright lawsuit?
> 
> I've done a bit of thinking on this, and I believe that whoever
> includes the image tag in the article would be responsible for
> preparing a work containing the fair use material. If User A uploads
> the image, B puts it in the article, and then C breezes by and puts a
> fair use justification, then B would probably be responsible; but if D
> comes by and corrects a typo in the article and leaves the image tag
> in, then D could become responsible.

As a non-American with little knowledge of U.S. law, I'd nonetheless 
find it unlikely that in your scenario D could be liable.  The way I'd 
expect a court to see it, should it ever come to that, is that whoever 
made the (implicit or explicit) claim that "this image may be fairly 
used in that article", or acted based on such a claim made by another, 
_when they should've known better_, would be liable.

D, who only corrects a typo in an unrelated part of the article, could 
hardly be expected to know that the fair use claims made implictly by B 
and explicitly by C are in fact bogus.  Unless, perhaps, the copyright 
violation was _really_ blatant and obvious; but if one were to argue 
that, one might as well argue that anyone who read the article without 
fixing it is also liable.  I doubt either argument would actually fly.

As for the liability of B, that would rather depend on what, if any, 
description A provided when they uploaded the image.  If A claimed the 
image was PD-self, and the image was such that B would've had no reason 
to doubt that claim, then it would be A's fault for misleading B.  But 
even than C might still be held liable, since, in providing the fair use 
rationale, they could be assumed to have been aware that A's claim was 
invalid.

Of course, in practice there'd be a lot more to it than that.  For 
example, a court might certainly debate about exactly how much due 
diligence an editor could be expected to apply in verifying claims made 
by other editors.  And certainly lawyers would be expected to make all 
sorts of claims and counterclaims, however weak, just in case they might 
get lucky.  Not to mention the possibility of local laws that might 
explicitly create a presumption of "should've known better" on certain 
individuals that in other jurisdictions might have no such 
responsibility.  Or...

In any case, the practical guideline I would draw from all this is to 
use common sense in making or acting upon fair use claims, and to assume 
that one _might_ assume liability in doing so if one did not apply due 
diligence.  "Trust, but verify."

-- 
Ilmari Karonen