On Wed, Aug 20, 2008 at 4:51 PM, Matthew Flaschen < matthew.flaschen@gatech.edu> wrote:
Supporters of broad use of PD-art outside of the U.S. have seized on a statement by Erik Möller that, "To put it plainly, WMF's position has always been that faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain." and called it the "position of the WMF" ( http://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-Art_tag#The_pos... ) and "The official position taken by the Wikimedia Foundation" (http://commons.wikimedia.org/wiki/Template:PD-art).
In my opinion, this is mistaken on many levels. Regardless of his intentions, Erik Möller does not have the authority to speak for the WMF. If the board does /intend/ to make this statement, a binding resolution would be a much better means.
This choice of interpretation involves deliberately ignoring the current legal climate in certain countries outside the U.S., and I believe that is a significant departure at Commons.
I am asking the board to step in and provide clarity on this issue in particular, and the ways they will and will not communicate their views on important issues in general.
Adding commons-l as a CC as this clearly involves the commons community, and should have included that CC to start. Lets all try to include commons-l on future replies.
Erik is deputy director, and he, Sue, Mike Godwin or the board itself I believe is entitled to make such a statement. Are you simply asking for the board to endorse or not endorse it?
- Joe
On Thu, Aug 21, 2008 at 12:59 PM, Joe Szilagyi szilagyi@gmail.com wrote:
On Wed, Aug 20, 2008 at 4:51 PM, Matthew Flaschen < matthew.flaschen@gatech.edu> wrote:
Supporters of broad use of PD-art outside of the U.S. have seized on a statement by Erik Möller that, "To put it plainly, WMF's position has always been that faithful reproductions of two-dimensional public domain works of art are public domain, and that claims to the contrary represent an assault on the very concept of a public domain." and called it the "position of the WMF" (
http://commons.wikimedia.org/wiki/Commons:When_to_use_the_PD-Art_tag#The_pos...
) and "The official position taken by the Wikimedia Foundation" (http://commons.wikimedia.org/wiki/Template:PD-art).
In my opinion, this is mistaken on many levels. Regardless of his intentions, Erik Möller does not have the authority to speak for the WMF. If the board does /intend/ to make this statement, a binding resolution would be a much better means.
This choice of interpretation involves deliberately ignoring the current legal climate in certain countries outside the U.S., and I believe that is a significant departure at Commons.
I am asking the board to step in and provide clarity on this issue in particular, and the ways they will and will not communicate their views on important issues in general.
Adding commons-l as a CC as this clearly involves the commons community, and should have included that CC to start. Lets all try to include commons-l on future replies.
Erik is deputy director, and he, Sue, Mike Godwin or the board itself I believe is entitled to make such a statement. Are you simply asking for the board to endorse or not endorse it?
- Joe
Back in 2004, Jimmy Wales has stated:
*I officially pronounce that as of June 30, 2004, content which we are using _solely_ by virtue of non-free licenses should be removed from Wikipedia.*[1]
In 2007, a resolution regarding it has announced: http://wikimediafoundation.org/w/index.php?title=Resolution:Licensing_policy...
So, yes, there is a need to an official statement. Erik and Mike have given theirs *opinions*. If Wikimedia Foundation doesn't need to have official statements regarding subjects like this, the Wikimedia Foundation doesn't need to have a Board of Trustees (since everyone can assert anything) and hundreds of volunteers don't need to waste your time translating gazillions of pages related to the Board elections expecting that the Foundation never given controversial rulings that can broke copyleft things in some contries.
[1] http://lists.wikimedia.org/pipermail/wikien-l/2004-April/012156.html
Dear everyone,
According to the Wikimedia Foundation's values (http://wikimediafoundation.org/wiki/Values), "An essential part of the Wikimedia Foundation's mission is encouraging the development of free-content educational resources that may be created, used, and reused by the entire human community. We believe that this mission requires thriving open formats and open standards on the web to allow the creation of content not subject to restrictions on creation, use, and reuse."
Indeed, one of the milestones achieved by Wikimedia was the approval of the resolution about licensing policy across projects (http://wikimediafoundation.org/wiki/Resolution:Licensing_policy), setting up restrictions about how EDPs are to be implemented, and which legislations should be respected when writing up such EDPs. This is appliable to all projects except Commons, which is expressively forbidden to have such a thing as an EDP - because EDPs are for non-free content, and Wikimedia Commons is supposed to host only free content (free defined as in http://freedomdefined.org/Definition).
In practice, things are a little bit different. Projects here and there have been setting up EDPs, and although there is no visible record of this (as far as I know), hopefully all these EDPs have been set up in accordance to this licensing resolution. I do not if such is supervised, but that is not really what I'd like to talk about today.
What I hopefully can point out today is that Commons is also not complying to the Four Freedoms, in light of its own licensing policy, which is the centerpiece of the project (http://commons.wikimedia.org/wiki/Commons:Licensing). We have several inconsistencies in our "subpolicies", but the biggest one has just been introduced: the modification to {{PD-Art}} that has been the topic for this thread. The new wording on this template reflects a position of the community in light of opinions/positions of WMF staff members, and goes to the point of considering this an official position of the WMF.
So if you don't mind, I'd like to pose some questions: *Is the official position of the WMF to consider only US copyright in what concerns content to be hosted in any Wikimedia project? **If the answer is yes, is Commons included? **If the answer is no, which copyrights should we consider to host content? Please specify the situation for Wikimedia Commons too. *Is any WMF staff member entitled to give a "position" in behalf of the Board in a way that condones (even incites?) breaking the law outside of the US, in the sake of lobbying for Free Content/Licensing? *Are the positions/opinions given by Erik and Mike to be considered for the National Portrait Gallery/UK copyright law only, or for any legislation that has similar/equivalent problems, such as the Swedish one? *Finally: if we are to consider US copyright only in this specific (PD-Art) matter, but non-US admins are required by some authority in their own country to take down any media that is copyrighted in that country, should admins defy the local authorities or the new Commons licensing?
I believe that if we start allowing exceptions of this kind, Commons does not fulfill its role as a media repository that is indeed free to reuse, and its existence is not making much sense. So I would like to know what is the future of this project, and whether it is more feasible to have local uploads everywhere else, tightly regulated with a legislation, whichever that may be, instead of a central repository of "more or less free stuff, it sort of depends, you know".
Thank you for your time. Patrícia Rodrigues
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Patricia Rodrigues wrote:
So if you don't mind, I'd like to pose some questions: *Is the official position of the WMF to consider only US copyright in what concerns content to be hosted in any Wikimedia project?
No
**If the answer is no, which copyrights should we consider to host content? Please specify the situation for Wikimedia Commons too.
The established position is that content needs to be free in the USA and the country of origin. But there are a few exceptions, that are established as well. PD-art is just one of them.
For example: The King James Bible enjoys a perpetual copyright in the UK. Only four printers are licensed to print copies and they pay (small) royalties. We host a copy of the KJB on wikisource none the less.
Greece has a very questionable provision in the copyright law, under which the state claims copyright (!) for each and every antiquities from the Greek history. We happily ignore that and show excavations, works of art, historic weapons and the like.
Italy has a similar provision regarding works of art in state-run museums. We ignore that as well.
Ciao Henning
On Thu, Aug 21, 2008 at 6:55 PM, Patricia Rodrigues snooze210904@yahoo.se wrote: [...]
What I hopefully can point out today is that Commons is also not complying to the Four Freedoms, in light of its own licensing policy, which is the centerpiece of the project (http://commons.wikimedia.org/wiki/Commons:Licensing). We have several inconsistencies in our "subpolicies", but the biggest one has just been introduced: the modification to {{PD-Art}} that has been the topic for this thread. The new wording on this template reflects a position of the community in light of opinions/positions of WMF staff members, and goes to the point of considering this an official position of the WMF.
We have never followed the Definition of Freedom to the letter and neither to its spirit. The Commons community has always followed their own way interpreting freedom just like they did in the PD-art discussion. Which ended up in a decision that will allow us to use become a broader repository but arguably also will drift us away from freedom in its strict sense and may have rather unfortunate consequences for our fellow UKians and Scandinavians. I know at least one admin who did not want to take the risk of administering a repository that would cause him to break his country's law. In the end this was the decision of the Commons community itself only. The Foundation allowed the project decide for themselves which they did.
I believe that if we start allowing exceptions of this kind, Commons does not fulfill its role as a media repository that is indeed free to reuse, and its existence is not making much sense. So I would like to know what is the future of this project, and whether it is more feasible to have local uploads everywhere else, tightly regulated with a legislation, whichever that may be, instead of a central repository of "more or less free stuff, it sort of depends, you know".
Free to reuse is rather vague. The community has always drawn the line of freedom themselves (indeed in some cases directly violating the Definition of Freedom and the Licensing resolution).
Bryan
(As a side note I had seen this coming. It has always been a matter of when, not if)
Bryan, I agree with you that we are not following the spirit of the Definition of Freedom strictly. That is the main problem, and we keep on introducing exceptions to the general licensing spirit for the sake of convenience. Two wrongs does not make one right - where does it stop?
Yes, it's rather unfortunate that we have already lost one administrator because of possible legal issues. One issue is: people working with free software/free culture in affected countries are faced with the issue that they are promoting something (liberation of material to the public domain or under free licenses by those who have such material closed in cellars in museums or available only through gatekeepers, so that it's usable by Wikimedia Commons) that in the end is useless to promote because it's possible to use it anyway, on a clause that is perfectly fine in the US but absolutely not in those countries. So instead of smoothly and diplomatically convincing such institutions, we're bullying them into it. A bad strategy, and bad publicity for Wikimedia, imho.
The other issue is: what to do if you are an admin from one of the affected countries and receive a request from the authorities in that country to take down some PD-Art media from the site (copyrighted in that country)? Do you refuse your local authorities saying "it's in a server in the US, ha-ha", risking whichever consequences, or do you violate Commons "policy" so you won't disobey local authorities, and delete the media?... Is it possible to be an admin in such conditions?
It's very nice to talk about lobbying for Free Culture and having some courage against such unfair and ridiculous legislations when you're sitting comfortably on US soil.
Well, there you go, more questions to be answered.
Regards, Patrícia
--- On Thu, 21/8/08, Bryan Tong Minh bryan.tongminh@gmail.com wrote: From: Bryan Tong Minh bryan.tongminh@gmail.com Subject: Re: [Commons-l] [Foundation-l] PD-art and official "position of the WMF" To: "Wikimedia Commons Discussion List" commons-l@lists.wikimedia.org, "Wikimedia Foundation Mailing List" foundation-l@lists.wikimedia.org Date: Thursday, 21 August, 2008, 9:18 PM
We have never followed the Definition of Freedom to the letter and neither to its spirit. The Commons community has always followed their own way interpreting freedom just like they did in the PD-art discussion. Which ended up in a decision that will allow us to use become a broader repository but arguably also will drift us away from freedom in its strict sense and may have rather unfortunate consequences for our fellow UKians and Scandinavians. I know at least one admin who did not want to take the risk of administering a repository that would cause him to break his country's law. In the end this was the decision of the Commons community itself only. The Foundation allowed the project decide for themselves which they did.
Free to reuse is rather vague. The community has always drawn the line of freedom themselves (indeed in some cases directly violating the Definition of Freedom and the Licensing resolution).
Bryan
(As a side note I had seen this coming. It has always been a matter of when, not if)
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In addition to Patricia's excellent argument about diplomaticy vs bullying, I'd like to say that bad laws that are not respected are not going to be changed.
Imagine the situation: Nice Wikimedian asks Lawmaker to change the law to reinforce the Public Domain. CL will say "I can't be bothered, these laws are legacy stuff and not enforced anyway, like those about killing Scottish bowmen". Eventually, - the written law stays the same; - what the laws says is barely tolerable or intolerable; - people start uploading things in disregard of the law because what the law says seems excessive, and because, hey, the lawmaker said it's OK, right?
Wrong. The lawmaker said no such thing. What he said was a vague promise designed to appease both chicken and foxes. The firmly true part of what he says is "I can't be bothered". He wants to be re-elected, so he needs not upset anybody (also, there are lots of things with a better "effort/political benefit" ratio to do).
Now, enter the Evil Editor. The EE wants to make an example of a Wikimedian in order to intimidate the rest of us, cast a bad light on the Wikimedia projects so that the public opinion sees us as a bunch of "pirates", and eventually reinforce his position with even more drastic copyright laws. What would you do in his position? Of course, you would quietly wait until some unsuspecting Wikimedian uploads something appropriately copyrighted and somehow controversial; when a favourable situation arises you simultaneously launch - a legal campaign towards the Wikimedian and possibly Wikimedia in general, - a media campaign aimed at the public opinion ("save our starving artists!") - a lobbying towards lawmakers and politicians.
By behaving in an overconfident manner towards local copyright laws (i.e. anything short of "quite paranoid"), we are buying empty promises as if they were firm, and we are handing weapons to potential enemies waiting to ambush us. Only by putting lawmakers in front of what they have written do we have a chance of improving things. Local laws are a problem? Well, ignoring the problem could prove dangerous, and will certainly never solve it.
-- Rama
On 22/08/2008, Patricia Rodrigues snooze210904@yahoo.se wrote:
Bryan, I agree with you that we are not following the spirit of the Definition of Freedom strictly. That is the main problem, and we keep on introducing exceptions to the general licensing spirit for the sake of convenience. Two wrongs does not make one right - where does it stop?
Yes, it's rather unfortunate that we have already lost one administrator because of possible legal issues. One issue is: people working with free software/free culture in affected countries are faced with the issue that they are promoting something (liberation of material to the public domain or under free licenses by those who have such material closed in cellars in museums or available only through gatekeepers, so that it's usable by Wikimedia Commons) that in the end is useless to promote because it's possible to use it anyway, on a clause that is perfectly fine in the US but absolutely not in those countries. So instead of smoothly and diplomatically convincing such institutions, we're bullying them into it. A bad strategy, and bad publicity for Wikimedia, imho.
The other issue is: what to do if you are an admin from one of the affected countries and receive a request from the authorities in that country to take down some PD-Art media from the site (copyrighted in that country)? Do you refuse your local authorities saying "it's in a server in the US, ha-ha", risking whichever consequences, or do you violate Commons "policy" so you won't disobey local authorities, and delete the media?... Is it possible to be an admin in such conditions?
It's very nice to talk about lobbying for Free Culture and having some courage against such unfair and ridiculous legislations when you're sitting comfortably on US soil.
Well, there you go, more questions to be answered.
Regards, Patrícia
--- On Thu, 21/8/08, Bryan Tong Minh bryan.tongminh@gmail.com wrote: From: Bryan Tong Minh bryan.tongminh@gmail.com Subject: Re: [Commons-l] [Foundation-l] PD-art and official "position of the WMF" To: "Wikimedia Commons Discussion List" commons-l@lists.wikimedia.org, "Wikimedia Foundation Mailing List" foundation-l@lists.wikimedia.org Date: Thursday, 21 August, 2008, 9:18 PM
We have never followed the Definition of Freedom to the letter and neither to its spirit. The Commons community has always followed their own way interpreting freedom just like they did in the PD-art discussion. Which ended up in a decision that will allow us to use become a broader repository but arguably also will drift us away from freedom in its strict sense and may have rather unfortunate consequences for our fellow UKians and Scandinavians. I know at least one admin who did not want to take the risk of administering a repository that would cause him to break his country's law. In the end this was the decision of the Commons community itself only. The Foundation allowed the project decide for themselves which they did.
Free to reuse is rather vague. The community has always drawn the line of freedom themselves (indeed in some cases directly violating the Definition of Freedom and the Licensing resolution).
Bryan
(As a side note I had seen this coming. It has always been a matter of when, not if)
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I believe the matter has got some extra questions in it that are a bit out of the issues I raised in a previous post, which means most of those issues have not been really addressed yet. Some of the extra questions are:
*"Erik and Mike have the right to talk for Wikimedia" - I do not question this. They are both staff members, and I honestly do not know well enough the internal organization of Wikimedia Foundation to be asserting who has the right to talk about which issues. Indeed, the fact that they _were_ talking as Wikimedia staff and giving an explicit position is what prompted me to start fussing on foundation-l. Because I have failed to see whether their statements were done regarding the situation specifically in the UK, or in other countries too; and because I have still oblivious about which copyright law we *must* follow and which we *should* follow. I'll come back to this later. *"Local projects have the right to make their own amendments" - Absolutely! The Board is not to decide on how local projects should be regulated. Nor am I asking for external interference from the Foundation to revert any local decision. I have seen such requests (mainly for the English Wikipedia) on this mailing list, and the mantra "WMF does not interfere in local decisions" always comes up, and rightfully so. But again, a clarification about our licensing policies helps local projects to decide on their contents; and Commons is especially sensitive to that, and the result was that from a couple of statements, a major turn in the Licensing policy was done. Especially because the change was not to make it narrower, but broader. *"WMF is not going to be legally harmed for hosting such content" - I truly believe that too, and I really hope that. However, at this point, I couldn't care less about if WMF would be sued or not about images under the PD-art problem. I am mostly worried about: 1) Reusers of this content. We have to tell people that the media is PD, but actually it may not be so PD in their country, so you have to know your local legislation to know if you can reuse it or not. Not exactly very easy. So it's free content, but heh maybe not *that* free. Which takes me to point 2... 2) People in Free Software/Free Knowledge/Free Culture movements/organizations in affected countries. Suddenly, organizations in such countries supporting Wikimedia projects, lack a good reason to convince patrons to release media to the public - if the content can be used even against such organizations' will, why should they bother negotiating such release? I don't know how big this problem is, but it would be good if people from Wikimedia chapters from affected countries could weigh in their opinion. 3) Administrators and/or OTRS personnel receiving take-down orders. What should they do? Contact our designated agent (Mike Godwin/Sue Gardner)? The legal counselor (Mike Godwin)? Ignore such orders and show them {{PD-Art}}, stating we can't do anything because it's against policy? Even if that means ignoring local legislation? (in "local" here I mean where these people are physically located - do they become liable for not taking down such content when prompted to?) *"We're teaching the world to free up content" - by breaking/ignoring local laws? Again, I question the methods. Why are we then accepting the lack of Freedom of panorama in the USA, or even following USA's interpretation of the Rule of the shorter term? These are also limitations to freedom of use, and on Commons we accept media from other countries that are not following strictly USA's interpretations on these matters... are we doing wrong? Should we start choosing which laws we deem "stupid" (I actually read this term on the discussion about changing PD-Art) and ignore them, regardless of them being US laws or not? This is not a rhetorical question. So, I'm afraid that some things have not been really clarified... but the main one is: which copyright laws must/should Commons follow, in order to be absolutely compatible with WMF's values and licensing policies? Because the Board resolution from 2007 is not including Commons. Are we in a legal vacuum?
Patrícia
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-----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1
Patricia Rodrigues wrote:
- Administrators and/or OTRS personnel receiving take-down orders. What should they do? Contact our designated agent (Mike Godwin/Sue Gardner)? The legal counselor (Mike Godwin)? Ignore such orders and show them {{PD-Art}}, stating we can't do anything because it's against policy? Even if that means ignoring local legislation? (in "local" here I mean where these people are physically located - do they become liable for not taking down such content when prompted to?)
*"We're teaching the world to free up content" - by breaking/ignoring local laws? Again, I question the methods. Why are we then accepting the lack of Freedom of panorama in the USA, or even following USA's interpretation of the Rule of the shorter term? These are also limitations to freedom of use, and on Commons we accept media from other countries that are not following strictly USA's interpretations on these matters... are we doing wrong? Should we start choosing which laws we deem "stupid" (I actually read this term on the discussion about changing PD-Art) and ignore them, regardless of them being US laws or not? This is not a rhetorical question. So, I'm afraid that some things have not been really clarified... but the main one is: which copyright laws must/should Commons follow, in order to be absolutely compatible with WMF's values and licensing policies? Because the Board resolution from 2007 is not including Commons. Are we in a legal vacuum?
Actually, any take-down orders (DMCA or otherwise legal) should be sent directly to the foundation office as designated agent (via email, fax or mail) for handling. - -- Cary Bass Volunteer Coordinator
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2008/8/21 Luiz Augusto lugusto@gmail.com:
So, yes, there is a need to an official statement. Erik and Mike have given theirs *opinions*.
There are three separate questions here:
1) Does hosting these images put the WMF in legal danger? Mike has weighed in on this, and said that based on the record so far, there is no reason to assume that this is the case. If you want to know if something should be deleted to protect WMF from harm, Mike is the person to ask. He has been asked and has answered.
2) Does WMF's licensing policy require Commons to delete these images to remain free-as-in-freedom? Our organizational response has always been "no", dating back to Jimmy's first public statements on the matter years ago, our response to demands to remove PD-Art images, etc. I co-authored both the licensing policy and the Definition of Free Cultural Works it refers to; I believe I can safely say that neither of these documents was intended to suggest deletion of PD-Art images.
3) Is the Commons community free to decide that, in spite of 1) and 2), it wants to delete some PD-Art images in order to be maximally free-as-in-freedom? As far as I can tell, the answer is "yes", in the absence of an explicit Board-level policy statement on PD-Art images. None of my or Mike's comments was intended to suggest otherwise.
I hope that clarifies the situation.
Thank you. That was my understanding based on your and Mike's previous emails.
On the basis of the Board's position on (1) and (2), the Commons community discussed (3) - as the Board has given it freedom to do - has run a poll, and has decided to change policy to allow PD-Art images from any country.
The main practical effect will be that hundreds, maybe thousands, of images that we previously had to hand over to Wikipedia (where they were stored on exactly the same servers that Commons uses) can now be kept for re-use on multiple WMF projects.
Someone re-using a UK or Swedish PD-Art image will be in exactly the same position under local law if he/she takes it from Commons as if he/she takes it from Wikipedia. The risk is identical, and it is and always has been up to the user to make sure that the proposed re-use is allowed under local law.
Michael Maggs
Erik Moeller wrote:
2008/8/21 Luiz Augusto lugusto@gmail.com:
So, yes, there is a need to an official statement. Erik and Mike have given theirs *opinions*.
There are three separate questions here:
- Does hosting these images put the WMF in legal danger? Mike has
weighed in on this, and said that based on the record so far, there is no reason to assume that this is the case. If you want to know if something should be deleted to protect WMF from harm, Mike is the person to ask. He has been asked and has answered.
- Does WMF's licensing policy require Commons to delete these images
to remain free-as-in-freedom? Our organizational response has always been "no", dating back to Jimmy's first public statements on the matter years ago, our response to demands to remove PD-Art images, etc. I co-authored both the licensing policy and the Definition of Free Cultural Works it refers to; I believe I can safely say that neither of these documents was intended to suggest deletion of PD-Art images.
- Is the Commons community free to decide that, in spite of 1) and
2), it wants to delete some PD-Art images in order to be maximally free-as-in-freedom? As far as I can tell, the answer is "yes", in the absence of an explicit Board-level policy statement on PD-Art images. None of my or Mike's comments was intended to suggest otherwise.
I hope that clarifies the situation.
Joe Szilagyi wrote:
Adding commons-l as a CC as this clearly involves the commons community, and should have included that CC to start.
I wasn't trying to hide anything. I mentioned my initial post at http://commons.wikimedia.org/wiki/Commons_talk:When_to_use_the_PD-Art_tag#Bo...
Erik is deputy director, and he, Sue, Mike Godwin or the board itself I believe is entitled to make such a statement. Are you simply asking for the board to endorse or not endorse it?
- Joe
Yes, exactly. And I would ask that the foundation be more deliberate about important statements in the future (and this is very important).
Matt Flaschen