KWH wrote:
on 3/24/06, "MacGyverMagic/Mgm" macgyvermagic@gmail.com wrote:
Fair enough. Is it required that the original uploader provide the fair use rationale, or can someone else? If we require the original uploader, that might be a problem. If you're not the original uploader, but provide a rationale, are you thereby assuming responsibility for a copyright lawsuit?
-Matt
No, because if you add a proper rationale there won't be a lawsuit.
Mgm
Incorrect. There will be a lawsuit if someone representing a copyright holder decides to file court papers. It's really that simple. The existence of the rationale changes nothing, and it's likely that the defendant in such a suit would use a different rationale crafted by their own lawyer as defense. And that rationale doesn't matter either
- what matters is what the judge determines is the disposition of the
four factors based on the evidence presented.
Consider this - the purpose, nature, amount, and effect of the fair use are going to be facially obvious to the copyright holder - or at least their view of it. If they are fuming angry after seeing their work being used on Wikipedia, and they talk to their lawyer, then having a detailed rationale on the image description page isn't going to suddenly enlighten them. Nor is it going to sway the lawyer's advice to them on whether to file suit - they're going to make their recommendation based on potential for a successful outcome, and they're not going to take advice from the adversary.
I agree. But not all suits are filed as a result of a rational analysis of possible outcomes. Some lawsuits are the result of some individual who gets it into his head that there is a point of principle to be made, even when the damages that could be recovered are considerably less than the legal costs. What a lot of copyright paranoiacs seem to ignore is the number of steps between the time the copyright owner notices the alleged infringement, and the time that a trial judge gives a decision. There are many opportunities on the way for either party to withdraw without any significant damage to anyone.
You can't expect someone to take responsibility for an picture someone else put in an article. Too many people know too little about copyright law or are just completely ignorant.
But that's exactly what we're doing every day when we edit - we're authors. This should be viewed as an ennobling thing for editors; our contributions are more significant than some comment on slashdot, as example. Let's not forget that our textual contributions usually exercise fair use as much as images do.
I also don't care much for arguments that presuppose ignorance of the mass of people and a nanny mentality of "you don't understand this, so I will understand it for you."
Absolutely. It's a favorite argument of politicians.
Ec