On 14/08/06, Bryan Derksen bryan.derksen@shaw.ca wrote:
Alphax (Wikipedia email) wrote:
That was me, and it's not a red herring. Every time we claim "fair use" on an image, it is because the image is not Free; that means, we are infringing someone's copyright.
I'm no lawyer but I think this is wrong. If our use of a copyrighted item is done under circumstances that meet the requirements of valid fair use, then we are _not_ infringing on that copyright. Fair use gives us the legal ability to use that copyrighted item in that manner. There are many situations that lie in between "Free" and "copyright infringement," it's not either/or.
Well, we're not infringing their copyright until it's ruled we are.
The problem with "fair use" is that it's not a licence, it's a legal *defence*. i.e., if someone wants to sue us for quoting their copyrighted work or using their copyrighted picture, they can do so and we may win or not.
If their case is egregiously overreaching, we would be likely to get attorneys' fees from them - and then we also have a LOT of friends on the Internet who would see an obviously egregious case of overreaching and throw a bit of cash our way and bury the plaintiff in oppobrium.
If it's *not* egregiously overreaching, the Foundation has a decision to make on whether it's worth pursuing the issue on principle, e.g. a screencap for purposes of encyclopedic discussion is likely absolutely minimal copying and just the sort of thing the "fair use" doctrine is for. Same for a book cover in an article about the book.
The tricky bit with fair use is that it's the use that is fair (or not), not the presence of the image. This is why IMO fair use image pages should list the articles they are fair use in, possibly with a detailed rationale (which we have for many via the various fair use templates).
The reason to continue with fair use is that enclosure of culture by copyright to the point where it seriously hampers people talking about the subjects is odious. This particularly applies in the case of an encyclopedia, which is an example of the sort of thing fair use is for.
(I think I have all that right ... corrections welcomed.)
- d.