David Gerard wrote:
On 03/03/2008, Betacommand
<Betacommand(a)gmail.com> wrote:
Let me make a few points:
All absolutely true, except I'd question this one:
10. it only takes one greedy lawyer to shut down
the Wikimedia
Foundation, lawyers are not required to send a takedown notice. they can
just sue you for everything you have.
I think this is way overstating the dangers - we are BIG (even if the
Foundation is actually tiny) and we have a *lot* of friends. If WMF
was in serious danger from a greedy lawyer making an overreaching
claim, the greedy lawyer would be crushed by a tsunami of donated
money.
Of course, that's no reason to be cavalier with non-free content.
Indeed, the argument is just plain alarmist. A religious salesman who
happens to be canvassing your neighborhood could trip on your child's
toy, break his neck and sue.
If we build a public history of favorable responses to takedown notices
that would likely be a factor in any judge's decision. (It's one more
reason why all proper takedown notices received should be made a matter
of public record.) To sue, the plaintiff will have a high burden of
proof to prove actual damages. He needs to take into account his own
costs, and to a greedy lawyer probability of winning will be a big
factor in his decision to take a case on a contingency basis. If the
complaint is found to be unnecessarily vexatious the plaintiff and the
greedy lawyer also need to weigh in the possibility that they may need
to pay our costs. For a lawyer (especially a greedy one) that can loom
large.
Although not a lawyer, I have argued cases in court, and strange things
can happen there. It's always tougher for plaintiffs to prove their case.
If a case does arise, a fair-use claim need not have been made on the
page to be fair use. As a defence it need not even be mentioned until
there is an actual case; the plaintiff who is unprepared for that
argument has a case in trouble.
Those who have never been involved in a legal case seem to have the
impression that one only needs to look at a statute and everything will
be as clear as a revelation from the Messiah. That view is seriously
disconnected from reality.
Ec