[Wikipedia-l] Re: What would Richard Stallman say?

[Daniel Mayer]

Michael Snow wrote:
>Sorry, but if we start conceding that in effect, we are 
>combining an article with an image into a single document 
>under GFDL, downstream users have to be able to use the 
>image alone. We are licensing them to modify the document, 
>and potential modification includes stripping out all the text 
>and just leaving the image. We cannot restrict downstream  
>modification--that's essential to copyleft.

Sorry but fair use exists outside the concept of copyright and thus a fair use
but otherwise non-FDL image in an article can no more become copyrighted under
the GNU FDL than a quote in the same article can (fair use is essentially a
grant into a type of public domain for limited uses). In short, no license can
affect whether or not something is fair to use since it is the *use*, not the
license terms, that determine fairness. 

Fair use heavily depends on *use* - illustrating an article would be fine in
many cases (same as using a quote in the text of the article), but once you
strip the article away then the use has changed and the photo (and quote in the
case of text) could not be used in many cases since its use would no longer be
fair. 

We just need to tag images used under the various types of fair use. Stuff that
would be fair use for non-commercial and commercial downstream users should
have one tag and stuff that would be fair use for non-commercial use  but not
downstream commercial users should have a different tag. 

We could then make things easy for commercial downstream users by offering a
different download dump. IMO, that should be of the printable versions of
articles - which would automatically not display images marked with the second,
more restrictive, fair use tag (nor would the images be in the dump). Printable
versions of articles also already have the GNU copyright info and link-back to
the Wikipedia article. 

Also remember this (from http://en.wikipedia.org/wiki/Fair_use )
In determining whether the use made of a work in any particular case is a fair
use the factors to be considered shall include-- 
(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes; 
(2) the nature of the copyrighted work; 
(3) the amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and 
(4) the effect of the use upon the potential market for or value of the
copyrighted work. 

Everybody should also read  
[[Kelly v. Arriba Soft Corporation]]
http://en.wikipedia.org/wiki/Kelly_v._Arriba_Soft_Corporation

In that case the Court ruled that the displaying of thumbnails by a search
engine was fair use. This, even though the use was commercial and really wasn't
educational (at least not nearly as educational as using an image to illustrate
an article). It was also substantial in regards the amount of work used (but
not substantial in relation to the quality of images served - since they were
only thumbnails). 

So there may be only a handfull of fair use images that we use that would not
also be fair use for commercial downstream users (assuming they use the images
the way we do - to illustrate articles). 

--mav

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