From: "Steve Vertigum" utilitymuffinresearch2@yahoo.com ...
is going to infringe and may not have the same fair use defense as Wikipedia will be found an infringer.
You say "will be found" as if this were a "legal certainty." Is there such a thing where hyper-transmission of materials is concerned? Please dont point to the current RIAA case-- its likely to recieve a severe case of public-advocacy backlash.
I think my logic is straightforward. If they have a fair use defense (o.k., maybe not the exact same fair use defense as every fair use defense is fact specific) they they will not have infringed, but if they don't have any fair use defense, yes, they will have infringed (that is assuming that the infringement is straightfoward). That is why I put it in as a certainty. The uncertainty revolves around the application of the fair use defense to downstream users. I am trying to focus the legal uncertainty there. ...
(a reason that the editors should retain
authorship attribution and copyright IMO)
Is this going to happen? How does this jive with the open-wiki model? Again, the democratizing, open-source model was never really inline with the privatized proprietary model in any case-- it's just a matter of time for these things to come to a head -- I see no point in changing horses in mid-stream now.
My understanding of the "open wiki model" is that it is a model of collaboration. Collaboration, in the artistic sense, translates into coauthorship in the copyright context. If you, I and Jimbo all contribute to an article, we are all the joint copyright owners of that article. If someone wants to publish it under the GFDL, they can, if they want to republish it some other way they will have to get permission from the coauthors. We remain the co-authors, we have all contributed to the same text (note that the collective Wikipedia copyright is held by all contributors "collective" is a copyright term that differs from coauthorship under the law. I don't see that authors do not retain copyright (they are only giving a non-exclusive license to Wikipedia, they can still do whatever they want with the original text, and author attribution (within the GFDL) is retained; I am not proposing any changes here.
the goal is to create a base of knowledge that can be used, not sidelined because the due dillegence could not be done to show who actually owns the co-author copyright on any Wikipedia article
And I take it that "due diligence" does not mean "an excess of zeal" either right? We all are *not in disagreement. Should we (for clarity's sake) now better define the term "due diligence" -- or must it remain as subjective as the law is itself? :-)
It is not for us to define due diligence, but apply how the courts interpret it contemporaneously with it being applied. (that it is why it is better left to the downstream licensee, perhaps).
effectively making the GFDL license scheme useless except to non-income producing downstream licensees
I see, so the whole notion of open-encyclopedia, generated by free editor labor, is somehow predicated on the possibilty that it will someday must be used by someone "for-profit" -- and not merely maintained as a perennial world resource ? Is'nt this--philosophically in contradiction to your first paragraph--more subject to laws dealing with non-profit, for-profit distinctions?
I don't know if libertarians would agree with the notion of privatization of public knowledge as being contrary to the libertarian ideal. Remember it is liberatarians who believe that the profit motive will make public services more effective. If someone will buy all the lamp posts, they will probably figure out a way to make money out of them (or they would not have purchased them) and ultimately the public good will be better served (though we may have to look at advertisements on every lamp post in exchange for this commercialization of the public realm). This is another example of why the commercial non-commercial dichotomy does not really work (though I don't agree with McDonalds outlets in hospitals or consumer advertising geared to grade and high school students, but that is another discussion.
This is quite clear. What at issue now are specific technicalities --1. Copyviolations in the article history only--not in the current version. -- is it necessary to delete an article --or can it simply be refactored?
I still think it is better to delete than preserve anything in the archives, but my proposal below is an interesting alternative regarding the history pages being considered an archive under sec. 108 of the copyright law. The history pages are not really for public consumption the _same_ way as the current version of any article, are they?
- The creation of stubs from copyvio sources.
As long as they are rewritten before posted to Wikipedia this is a valid way to contribute. It imports the facts without any infringement (or even fair use); ideas or facts cannot be copyrighted; that is what we are doing here at Wikipedia (and why the NPOV is also important, there is no agenda to an article, it presents all points of view because from a copyright law perspective they belong to no one, they are part of the "marketplace of ideas" (that is a famous quote from a famous American jurist, any guess who?)
3. Proper attribution to article source as a
mitigating factor in a hypothetical claim of violation.
If there are article sources they should _always_ be attributed, my suggestion is to always put notes about one's sources in the hidden text; this is different than putting it on the talk page. If it is in the <!-- hidden text --> it is still part of the article, the downstream licensee can check the sources and decide for themselves if there is any infringment or fair use that might not transform under changed circucumstances. The same kinds of information goes for fair use attribution.
I have also posted a link to a pdf checklist on the fair use page. This is the kind of information that should be used whenever any fair use is claimed. Remember, fair use is use specific, there is no such thing as general fair use. It _always_ depends on the circumstances (I have noticed lots of images on Wikipedia that are fair use, my question is: Have people been contributing fair use in text as liberally as they do on photos? If they have, let us only hope that there was attribution information posted somewhere so that someone can figure that out.
- The inefficiency of deferential preference to the
VFD process over refactoring.
I am not quite sure I understand this. If one deletes and starts over, one is not encouraging any copyright violation in any way. Refactoring is still copying. Better to cite one's sources and rewrite from scratch rather than cut, paste and refactor, no? ...
As long as people are made better aware of this fact--essentially, that they are personally responsible for the material they submit specifically in a civil defamation context. The issue then is, since WP itself is shielded, how much can or will or should WP shield its contributors?
It is not just civil defamation, but all kinds of information based torts that might occur. If someone commits a tort why should Wikipedia shield them? It should shield the person who is the object of the tort, no? Wikipedia is not an insurance company (now that is a way to control the world, make Wikipedia an insurance company! hee, hee!) ...
Thank goodness! But this new notice will take maybe an hour for one of the developers to implement. I hope the Firmament does'nt get sued before then.
I hope so! But damages are not likely. After all even if "we" do get sued, the question is always what are the damages and how much did the volunteers work to mitigate them for the "victim". We need to watch out for the Wikipedia victim, not the vandals, violators and defamers.
Thank you Alex. I think that all of this actually cleared something up. My spidey-sense is getting back to normal.
No. Thank you, Steve for following my argumentation, just please don't get that spider goo all over the net! And remember, even thought IAAL, Wikipedia (i.e. its contributors) does not give legal advice!
Alex756