On 7/24/06, Ray Saintonge saintonge@telus.net wrote:
- It is ethically questionable. When we distribute someone's
commercial work tagged as free content, we risk seriously letting the genie out of the bottle. It would do us no good to gain a napster-like reputation.
What makes it unethical? Is it any more ethical to deprive people of due process if they can make a reasonable legal case. This is not a matter of agreeing to every stupid argument that comes along. This has nothing to do with genies or Napster.
There is nothing unethical about removing content from our site which is in clear violation. Submitters of content are not entitled to due process. Wikipedia is not a courtroom.
It is, however, clearly unethical to distribute the copyrighted content of others without their authorization.
If the copyright paranoiacs want to put themselves into a panic, why should the rest of us fall into line with them. Each case needs to be judged on its own merits.
We can not afford, in terms of liability or available resources, to make a legally sound deep analysis for every image on a case by case basis. A simplified approach is required. Fortunately our project isn't centered around distributing legally questionable content, so rules which are more conservative then they need to be legally are generally acceptable.
Each incident is separate, and other instances would be inadmissible as evidence to prove that a specific incident is an infringement. This position is pure speculation.
Do you honestly believe that a judge would ignore evidence supporting a continued and willful violation of the law in making a determination?
Ultimately, only a judge can decide whether a contribution is in fact a coyright violation. We may suspect copyright violations; we may demand that a contributor accept responsibility (and define what that means), but we can rarely make a definitive statement that a particular writing or image is in fact a violation.
It's a dangerous game you propose here.
A majority of items taken down for copyright infringement are fairly clear cut: the submitter uploaded content for which he is not the copyright holder, no license grant has been provided by the copyright holder, and the material is clearly new enough to be covered by copyright.
It would seem that you are proposing in these cases that we ignore the obviousness of the violation and wait for a properly formed DMCA takedown notice before taking action. Since you're so sure that this is an acceptable solution are you able to provide the Wikimedia Foundation with indemnity from losses resulting from taking your legal advice?
In short, while being a nice legal fall-back, the safe harbor terms are not anything we want to rely on in terms of our copyright policy.
It's not merely a fall back, but a first step in arriving at a formal decision. When a properly composed notice is issued we must remove the offending material.
It seems to me that you've forgotten that one of the two primary goals of Wikipedia is to provide Free Content. We have failed at that goal when our site contains a huge number of copyright violations waiting for their DMCA notice to come in...
So while it is necessary that we remove content once properly noticed, it is not sufficient for us to wait for that to happen.