[Wikipedia-l] Re: Copyright violations at download.wikimedia.org

[Michael Snow]

Gregory Maxwell wrote:

>With text it's even worse because our public editing process make it
>much easier for someone to prove that our text was a derived work,
>where in a more traditional medium a sufficient amount of refactoring
>would usually manage to hide the violation.
>
>With images I plan on just replacing all the ones with suspect
>copyright (i.e. everything that isn't CC* or GFDL and uploaded by the
>author, or with an actual letter attached that explicitly says PD or
>an acceptable license) over time... but I have no idea how to solve
>text.
>  
>
Indeed, I'm rather surprised at the glib and easy way with which some 
people suggest "refactoring" copyright violations rather than deleting 
them when possible. Under normal circumstances, every revision of an 
article is a derivative work of previous revisions going back to the 
beginning. Simply rephrasing to avoid identical strings of words is not 
sufficient to avoid this.

To be confident that you don't have a derivative work, you would need to 
remove all content traceable to the copyright infringement, in much the 
same way that some editors rewrite an article entirely from scratch if 
they find it unsatisfactory. Using the infringing content as a base to 
work from is risky at best. When we need to preserve history that 
predates the violation, I can understand the dilemma that forces us to 
bury these problems instead of excising them, but otherwise it's a 
shoddy practice. Images are rather different, because the revisions can 
be entirely different, merely taking advantage of the same filename, and 
all traces of a copyright violation are easier to remove.

Exactly what qualifies as a derivative work is not always clear, and as 
best I'm aware there is effectively an open conflict on the issue 
between the rulings of two circuits of the U.S. Court of Appeals. So 
better guidance would only be available with a Supreme Court decision. I 
rather suspect that under the right circumstances, a Wikipedia article 
might provide them with an excellent set of facts on which to issue such 
a ruling. However, the expense and distraction of litigation being what 
it is, I'm not saying that setting legal precedent this way is something 
we should aspire to. Also, once faced directly with the prospect of an 
unfavorable outcome, people often discover that they're actually _more_ 
comfortable with uncertainty.

--Michael Snow