On 7/13/07, Todd Allen <toddmallen(a)gmail.com> wrote:
John Lee wrote:
I should think it would be obvious to anyone who
has been in a few of
these
debates about our non-free content policies that
if a consensus evolves
at
all, it will be definitely one that favours very
liberal inclusion of
non-free content, simply because legally we can. There are also some who
don't see any conflict between our free nature and the inclusion of
non-free
content that identifies certain things without
any discussion.
A consensus to "liberally" allow fair use would mean nothing. Most
things are subject to consensus, but the Foundation's been pretty clear
on the matter, that fair use should be minimal if allowed at all. While
that's open to some interpretation, "use liberally and wherever we
legally can" is clearly in conflict with that resolution, so consensus
or not it can't be done. An essential part of minimal use is that the
fair-use content is irreplaceable, and also that it serve to
substantially enhance the educational value of the article it's used in.
Tell that to the people who insist otherwise, then. This also doesn't help
with those who insist that unfree content is perfectly fine as long as it
identifies something the article alludes to, not just because it's legal,
but because it flies under their interpretation of WMF policy.
Also, who determines whether we legally can, anyway? I'm not a lawyer,
are you? What constitutes fair use is a very fuzzy
area of law, even
experts sometimes have difficulty determining whether a given use would
be fair or not. The reason for making sure we stay well away from the
edge areas is because most Wikipedians don't have the legal knowledge to
get close to that edge without actually crossing it, and the few who do
are here to edit the encyclopedia, not provide free legal advice on
thousands upon thousands of images.
I'm not, and my only legal training has been in the area of English law
anyway, but that doesn't matter, because there are a lot of instances where
something is plainly fair use under American law (as in, there's a 99%
chance a court would find it was fair use) but still plainly inadmissible
under our non-free content policies and the principles behind them. Dealing
with these cases is a headache as long as our anchor non-free content policy
is titled [[Wikipedia:Fair use]] and conflates fair use with non-free
content.
Johnleemk