Gregory Maxwell wrote:
On 7/24/06, Ray Saintonge <saintonge(a)telus.net>
wrote:
1) 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.
Of course you have arrogated upon yourself the role of being the arbiter
of violations. Just because you oppose any kind of fairness in these
issues, does not imply that this is a universal sentiment.
It is, however, clearly unethical to distribute the
copyrighted
content of others without their authorization.
At the rate you're going it would be unethical to quote anybody 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.
Why would you want to make these analyses on "every" Image? My
complaint is that you wouldn't want to make it on any. Your approach
isn't simplified; it's simplistic. A certain degree of conservatism is
beneficial, but there still needs to be room for reasonably
knowledgeable people to defend what they fairly believe not to be
infringement.
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?
Wilfulness is the element that distinguishes criminal from civil
infringement; criminal infringement requires a much higher standard of
proof. Until now there has not been a single charge laid so there is no
evidence for continued violation. Proving continued violation presumes
that every alleged infringement in the series be proven to be an
infringement in its own right.
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.
What's so dangerous about insisting that contributors accept
responsibility for their action, and that WMF clarify its role as an ISP.
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.
A lot of them are clear cut; I'm not disputing that. It will probably
also be that many of the apparent violators will not be willing to do
what it takes to accept responsibility for their material. Simply
making a bald and unsubstantiated claim of fair use is not enough. Some
reasonable legal rationale for inclusion would be needed. This would
apply to other reasons too, not just fair use.
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?
Obviousnous is not obvious to everybody. That term is primarily
rhetorical. In _some_ cases waiting for some kind of DMCA notice would
be the proper course of action, though I suspect that many of these
alleged infringements will be taken down long before we get that far anyway.
The losses up to the time of receiving and complying with a takedown
order are solely a figment of your imagination, so it would be
impossible to determine the value of the indemnity that you want.
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...
How many is that? How did you arrive at that figure?
So while it is necessary that we remove content once
properly noticed,
it is not sufficient for us to wait for that to happen.
A large part probably would still be removed if no one accepts
responsibility for it. And if it stays long enough the Statute of
Limitations may apply.
Ec