On 5/19/06, Bryan Derksen
Erik Moeller wrote:
While I respect Brad's opinion very much, we
need to be very careful
that "because I've spoken to Wikimedia's lawyer about it" does not
become equivalent to "end of discussion". The only question is where,
and with whom, such discussion should take place. I think wikien-l or
DRV are good places to start in most cases.
This is the situation I'm getting
concerned about here. I don't really
care about the specific image or its subject myself, I stumbled into
this completely by chance, but I am a little disturbed by how much
careful and detailed work went into justifying its inclusion only to be
trumped with completely unsupported "the artist doesn't like it" and
"the Foundation lawyer doesn't like it" assertions. How am I supposed to
know what's valid fair use under these circumstances?
I think the lack of transparency -- which is likely for legal reasons
-- is an unpleasant aspect of the legal end of these sorts of
decisions. In the end, the question is not "is it fair use under US
law" but "is it worth our invoking the fair use clause in the face of
an unhappy owner." I think most lawyers are going to go with "no" in
almost every case, because 99% of a lawyer's job is to keep you out of
court in the first place.
I'm not necessarily opposed to this. I think though that we should
fully articulate that our "fair use policy" is *not* just about being
within the law, but about avoiding court in the first place. It does
this *by means of the law* (if we comply with the law, then the
copyright holder will probably NOT risk sueing us), but at the same
time this approach makes it clear that there are non-legal aspects
(i.e. an angry copyright holder) which would dictate policy actions.
It also would dictate a very conservative approach to "fair use" --
one which would guarantee all of our "fair uses" are so far within the
law that even thinking of a lawsuit would be pointless. But I
understand that a lot of people feel differently on this.
(Though, you have to admit, O RLY? v. Wikimedia Foundation would be a
really funny case citation.)
O RLY? is a copyvio, which weakend our fair use case even further.
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