WRT the discussion here (mav, Jimbo) about the validity or otherwise of the British Portrait Gallery's enquiry, I have posted on wikipedia-l about the British (and Australian) legal situation; have a look at the recent archives for the details. To cut a long story short galleries in Australia, and now it seems Britain, think they have the legal right to impose these restrictions under their own copyright laws, and from my reading of the literal text they may be right (though there may be precedents in the area that say otherwise, IANAL).
We may be in the situation where it might be illegal for a British or Australian user to take an image from a gallery website of a PD artwork, and put it on the Wikipedia, but not for an American user to do so. Then again, maybe they'd like to try to extradite the American user in that situation...in other words, it's potentially a legal mess and I'm not liking their chances of successfully pursuing us. I suspect this could keep Larry Lessig and Eben Moglan amused for weeks.
If I were Jimbo, I'd be tempted to deliberately perpetuate an American stereotype and tell the National Portrait Gallery to kiss our ass and sue if they dare...but I'd perhaps want to get a real legal opinion first.
Robert Graham Merkel wrote:
If I were Jimbo, I'd be tempted to deliberately perpetuate an American stereotype and tell the National Portrait Gallery to kiss our ass and sue if they dare...but I'd perhaps want to get a real legal opinion first.
It is tempting, of course, but there are some puzzling additional issues here.
One of our goals is to keep our content freely redistributable as widely as possible. One unsettled question is the degree to which we are willing to alter our content to meet legal conditions which we regard as unjust.
Clearly, if we got an email from North Korea saying that any portrayal of their government in a negative light is illegal, and that anyone who redistributes our content there will get in legal trouble, we will just ignore it. Altering the political neutrality of our content is pretty much out of the question.
But it is less clear to me how we should draw the line when the issue is relatively minor, and relatively content-neutral. (To explain what I mean by content neutral: if we did not have these particular images, this would not introduce a major political or other bias in our articles in the same way that a demanded change of text would.)
When the issue is U.S. law, our hands are more tied than in other cases, but fortunately, in a wide range of cases it turns out that U.S. law is better than other jurisdictions, particularly given the fair use doctrine, the DMCA "safe harbor" provisions, etc. (But see my p.s. below.)
But I want people to be able to print books from Wikipedia content and then hand them out in the tube in London at rush hour if they like, so totally ignoring British law is not a viable option.
*We* are at no legal risk for hosting images that are public domain in the U.S. but not public domain elsewhere. But people who want to redistribute do not have that luxury.
--Jimbo
p.s. I would be interested in gathering examples of content that (a) we ought to have in the encyclopedia on editorial grounds but that (b) would not be legal for us to host in the United States.
To my knowledge, virtually all examples of content that is not legal in the U.S., but which *is* legal elsewhere, are not really relevant to our encyclopedic mission. The age of consent for models in pornographic pictures in the U.S. is 18 in the U.S., but lower in some other countries, but we don't publish pornographic pictures so this is irrelevant to us.
I think the entire corpus of classified (classified by the governement as secret, etc.) falls into that category. Much of this material is too detailed for encyclopedic purposes, but much would be encyclopedic if we knew it or were free to publish it.
More or less along the same line, considering the national security needs of the United States with respect to the "War on Terror", certain photographs and information, for example regarding the details of security precautions and certain nifty destructive techniques might fall into this category.
Fred
From: "Jimmy (Jimbo) Wales" jwales@wikia.com Reply-To: English Wikipedia wikien-l@Wikipedia.org Date: Wed, 4 Aug 2004 09:28:45 -0700 To: English Wikipedia wikien-l@Wikipedia.org Subject: Re: [WikiEN-l] British copyright law != American copyright law
p.s. I would be interested in gathering examples of content that (a) we ought to have in the encyclopedia on editorial grounds but that (b) would not be legal for us to host in the United States.
To my knowledge, virtually all examples of content that is not legal in the U.S., but which *is* legal elsewhere, are not really relevant to our encyclopedic mission. The age of consent for models in pornographic pictures in the U.S. is 18 in the U.S., but lower in some other countries, but we don't publish pornographic pictures so this is irrelevant to us.
Fred Bauder wrote:
I think the entire corpus of classified (classified by the governement as secret, etc.) falls into that category. Much of this material is too detailed for encyclopedic purposes, but much would be encyclopedic if we knew it or were free to publish it.
More or less along the same line, considering the national security needs of the United States with respect to the "War on Terror", certain photographs and information, for example regarding the details of security precautions and certain nifty destructive techniques might fall into this category.
Specific plans and precautions would be a problem, but books of techniques have been protected by free speech. In the 60s there was a dispute over a book of techniques by "the man who trained Fidel Castro", and that was eventually considered permissible. The only technique that I clearly remember had to do with flushing nail-filled balls of cotton down the toilets of public buildings. You would almost need to tear out the plumbing to clear up the problem. That book was mild compared to some of the material that has been produced by sone far right private militias, and they too have been ruled protected by the First Amendment. Even if the above listed items are not publishable in the U.S., this does not establish a case for them being publishable elsewhere.
Ec
Jimmy (Jimbo) Wales wrote:
p.s. I would be interested in gathering examples of content that (a) we ought to have in the encyclopedia on editorial grounds but that (b) would not be legal for us to host in the United States.
One entertaining example is satellite imagery of [[Area 51]]. Moreover, declassified CORONA and TERRA satellite images have either been "lost" or have curiously vanished, even from Microsoft's Terraserver site. I regret not uploading the TERRA image earlier this year, when it still was available.
So it might appear that other publishers, publishing unclassified information in the US, have recently "elected" no longer to do so.
As an aside, if some American wikipedian were to submit a FOIA request for CORONA (KH-4), TERRA, or better yet KH-11, imagery of 37°16'05" N 115°47'58" W - then I'm confident that would make for a great addition to the article, and an interesting test of the lattitude afforded a US publisher.
/me *double* wraps his head in tinfoil. FIn
Jimmy (Jimbo) Wales wrote:
Robert Graham Merkel wrote:
If I were Jimbo, I'd be tempted to deliberately perpetuate an American stereotype and tell the National Portrait Gallery to kiss our ass and sue if they dare...but I'd perhaps want to get a real legal opinion first.
It is tempting, of course, but there are some puzzling additional issues here.
One of our goals is to keep our content freely redistributable as widely as possible. One unsettled question is the degree to which we are willing to alter our content to meet legal conditions which we regard as unjust.
That, and to what extent do we want to monitor a wide range of laws in many countries. It's just not practical. Consideration of the host country's laws and major international treaties makes sense, but if a downstream user is going to republish material he must accept some responsibility for his actions.
Clearly, if we got an email from North Korea saying that any portrayal of their government in a negative light is illegal, and that anyone who redistributes our content there will get in legal trouble, we will just ignore it. Altering the political neutrality of our content is pretty much out of the question.
It's unsafe to mix issues; the results are too unpredictable. A more appropriate question in regards to North Korea might have to to with the copyrights to a portrait of Kim Il-sung, and whether we would respect the copyrights of an identified North Korean photographer.
But it is less clear to me how we should draw the line when the issue is relatively minor, and relatively content-neutral. (To explain what I mean by content neutral: if we did not have these particular images, this would not introduce a major political or other bias in our articles in the same way that a demanded change of text would.)
In other words the acceptability of the picture in terms of NPOV policy is a different issue from acceptability in terms of copyright policy.
When the issue is U.S. law, our hands are more tied than in other cases, but fortunately, in a wide range of cases it turns out that U.S. law is better than other jurisdictions, particularly given the fair use doctrine, the DMCA "safe harbor" provisions, etc. (But see my p.s. below.)
Agreed. But that still allows us room to manoeuvre if we feel we have a just cause. Not all take down requests are justified.
But I want people to be able to print books from Wikipedia content and then hand them out in the tube in London at rush hour if they like, so totally ignoring British law is not a viable option.
But Britain and the other developed countries are not where the distribution would be most useful. Some third world countries may have ridiculously complicated laws but no means of enforcing them. With the British laws under discussion, more than one interpretation is possible. How do we determine which of two conflicting interpretations is the right one?
I would be interested in gathering examples of content that (a) we ought to have in the encyclopedia on editorial grounds but that (b) would not be legal for us to host in the United States.
To my knowledge, virtually all examples of content that is not legal in the U.S., but which *is* legal elsewhere, are not really relevant to our encyclopedic mission. The age of consent for models in pornographic pictures in the U.S. is 18 in the U.S., but lower in some other countries, but we don't publish pornographic pictures so this is irrelevant to us.
I can speak better of this in a Wikisource context. The issue of the copyrights on Hitler's Mein Kampf has been discussed. A German language edition would be perfectly legal in the United States but not in most of Europe; the same could be said of any new translation. The existing major English language versions continue to be covered by copyrights in both places. In Canada all of these versions could be legally published.
The early works of Bertrand Russell (d. 1962 at age 98) would, at least in theory, still be covered by US copyright if they were never published in the US even if the foreign publication was before 1923.
Project Gutenberg does include some material that is covered by US copyrights, but has done so with an Australian server where the publication is perfectly legal. They merely advise US readers not to view these pages because they may be breaking the law by doing so.
The porn issue ends up being a diversion from the complexities of the copyright issue. It would be wise to avoid situations that bring them together.
Ec
Ray Saintonge wrote:
That, and to what extent do we want to monitor a wide range of laws in many countries. It's just not practical. Consideration of the host country's laws and major international treaties makes sense, but if a downstream user is going to republish material he must accept some responsibility for his actions.
Generally, I agree, we can't monitor and judge every single law in every single jurisdiction. But we can pick and choose, and do our best.
But Britain and the other developed countries are not where the distribution would be most useful.
I'm not so sure about that. Distribution in developed countries is important, because as we maximize our audience in those countries, we gain access to the hearts and minds of people who can fund our distribution in developing countries.
Imagine a free Wikipedia dvd mailed to millions of households in the UK, along with a letter from me explaining who we are and what we are doing, and asking for money to distribute our work in Africa. If we found a way to do that cheaply enough (for example, by working with popular magazines), the results would likely be amazing.
With the British laws under discussion, more than one interpretation is possible. How do we determine which of two conflicting interpretations is the right one?
Well, the fact that interpretation may be difficult surely doesn't mean that we can just throw up our hands and ignore the issue. We have to do _something_, so we should consult with people who are likely to know, and just do our best.
--Jimbo
Jimmy (Jimbo) Wales wrote:
Ray Saintonge wrote:
But Britain and the other developed countries are not where the distribution would be most useful.
I'm not so sure about that. Distribution in developed countries is important, because as we maximize our audience in those countries, we gain access to the hearts and minds of people who can fund our distribution in developing countries.
Imagine a free Wikipedia dvd mailed to millions of households in the UK, along with a letter from me explaining who we are and what we are doing, and asking for money to distribute our work in Africa. If we found a way to do that cheaply enough (for example, by working with popular magazines), the results would likely be amazing.
Ahh! but that's looking at distribution in developed countries only as a means to an end. :-)
With the British laws under discussion, more than one interpretation is possible. How do we determine which of two conflicting interpretations is the right one?
Well, the fact that interpretation may be difficult surely doesn't mean that we can just throw up our hands and ignore the issue. We have to do _something_, so we should consult with people who are likely to know, and just do our best.
Certainly. Even lawyers are likely to be divided in their opinions. Doing "_something_" should be a decision, and not a default. There will be opportunities to change course as more information comes in. For now, if they are alleging copyright infringement it is up to them to make a specific accusation, and get the legal ball rolling. What's the down side? The fact that there was a favorable decision in Bridgeman v. Corel may eventually not stand up as valid law for the substantial issue, but relying on it is evidence that you at least have a good faith argument.
Statutory law makes no provision for poker bluffs. They want us to believe that they are playing with a full house. Checking the bidding around to them may be the best thing to do.
Ec
On Wednesday 04 August 2004 18:28, Jimmy (Jimbo) Wales wrote:
p.s. I would be interested in gathering examples of content that (a) we ought to have in the encyclopedia on editorial grounds but that (b) would not be legal for us to host in the United States.
In some countries, works enter public domain 50 years after author's death. So, there are wagons of pictures and texts of authors who died between 1934 and 1954 which are PD in those countries but not PD in the US.
Nikola Smolenski wrote:
On Wednesday 04 August 2004 18:28, Jimmy (Jimbo) Wales wrote:
p.s. I would be interested in gathering examples of content that (a) we ought to have in the encyclopedia on editorial grounds but that (b) would not be legal for us to host in the United States.
In some countries, works enter public domain 50 years after author's death. So, there are wagons of pictures and texts of authors who died between 1934 and 1954 which are PD in those countries but not PD in the US.
All 1954 deaths are still have their works under copyright until the end of this year. What you cite is the standard under international law. It is interesting to note that the countries that have or are pushing for longer copyright terms are rich ones with many businesses that are already heavily invested in their intellectual properties. The artists that did the work more than 50 years ago have long since been paid off.
Lately the third world countries have been more interested in agricultural subsidies since that has a greater impact on them than intellectual property.
Ec
Like any US business, Wikipedia must either conform to an existing particular protectionist system (hence entering into an implicit agreement to somewhat conform to a particular cultural imperialism) or choose to defy it, in the hope that the means of enforcing its protections elsewhere are impractical. WP can continue to skirt indefinitely around the issue of violating various "laws," as long as it complies with 'US law.' But at some point, US law may come to excessively test WP's conformity to its implied contract to conform, and may have to find somewhere else to go.
Considering some of the methods by which the RIAA for example (a much-coddled entity) has excercised its "authority" to enforce IP rights in the cyberworld, its perhaps only on the continued disbelief in the wiki model that WP is not being legally challenged. IMHO its worth the effort to just imagine a future wherein WP can exist and function outside of all "legal" restrictions; and yet, as an entity in good faith with human goals, still prosper. The authority of courts to enforce their juristiction ultimately comes down to means of enforcement, and hence the extension of Constitutional principle (free speech, habeas corpus, etc.) to international matters is on the cutting edge of current legal issues; which is why in Iraq for example, dominant enforcement system without the extension of Constitutional juristiction and citizen protections, is an ethical anomaly which calls to explanation the very basis of US legal authority in an international context.
S
--- Ray Saintonge saintonge@telus.net wrote:
Nikola Smolenski wrote:
On Wednesday 04 August 2004 18:28, Jimmy (Jimbo)
Wales wrote:
p.s. I would be interested in gathering examples
of content that (a)
we ought to have in the encyclopedia on editorial grounds but that (b) would not be legal for us to host in the United States.
In some countries, works enter public domain 50
years after author's death.
So, there are wagons of pictures and texts of
authors who died between 1934
and 1954 which are PD in those countries but not PD
in the US.
All 1954 deaths are still have their works under copyright until the end of this year. What you cite is the standard under international law. It is interesting to note that the countries that have or are pushing for longer copyright terms are rich ones with many businesses that are already heavily invested in their intellectual properties. The artists that did the work more than 50 years ago have long since been paid off.
Lately the third world countries have been more interested in agricultural subsidies since that has a greater impact on them than intellectual property.
-Ec
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S.Vertigo wrote:
Like any US business, Wikipedia must either conform to an existing particular protectionist system (hence entering into an implicit agreement to somewhat conform to a particular cultural imperialism) or choose to defy it, in the hope that the means of enforcing its protections elsewhere are impractical. WP can continue to skirt indefinitely around the issue of violating various "laws," as long as it complies with 'US law.' But at some point, US law may come to excessively test WP's conformity to its implied contract to conform, and may have to find somewhere else to go.
A certain amount of conformity is needed to protect our sanity. The issues that could be a basis for a stand are too numerous. An organization can only offer passive support to others with compatible but different goals. For an encyclopedia the goals revolve around the more general concepts of free speech. Even if we all feel that the right to publish bomb-making instructions or porn should be recognized, such issues are peripheral to our purpose. Expending our energies there would be a waste of our resources. It is more important to promote the continued free access to information that by right we already all own.
We are already big enough to be noticed. Encarta and EB are still pumping the urban myth that the work of recognized experts will always produce a more reliable product. Lack of imagination will be their big millstone. Skirting around issues never solves them. One problem with implied contracts is that nobody ever reads them. If such contracts fall withing a national scope we can certainly go somewhere else, but then we would just be "signing" a new implied contract in a new jurisdiction; so that alone does not really advance anything. In theory, a truly free project will have a diffuse leadership, but I despair of seeing that accomplished in a population that has signed its implicit contracts without reading them.
In a "law-abiding" society where there are copious statutes there can also be a mind-boggling tendency to comply with laws that never existed outside of the implicit contract. Copyright paranoia is only one aspect of that. Not surprisingly in that environment the winners play a little closer to the legal line, and the honest ones readily admit when they have inadvertently crossed that line, abandon the offending position and carry on with life. For a large successful corporation juggling lawsuits may be a part of everyday business.
Considering some of the methods by which the RIAA for example (a much-coddled entity) has excercised its "authority" to enforce IP rights in the cyberworld, its perhaps only on the continued disbelief in the wiki model that WP is not being legally challenged. IMHO its worth the effort to just imagine a future wherein WP can exist and function outside of all "legal" restrictions; and yet, as an entity in good faith with human goals, still prosper.
I doubt that the politicians have fully grasped the implications of the cyberworld. One does not or cannot become a legislator without adhering to a significant portion of the impled contracts. This leaves out a lot of people who are not a part of that clique. Maybe that explains poor voter turnouts. A Sonny Bono can turn his POV into law because he is working with like-minded colleagues. By the time the rest of us figure out what is going on it is very difficult to undo the damage.
The authority of courts to enforce their juristiction ultimately comes down to means of enforcement, and hence the extension of Constitutional principle (free speech, habeas corpus, etc.) to international matters is on the cutting edge of current legal issues; which is why in Iraq for example, dominant enforcement system without the extension of Constitutional juristiction and citizen protections, is an ethical anomaly which calls to explanation the very basis of US legal authority in an international context.
For courts to enforce jurisdiction a case must first be put before the judges. This is why I feel that when it comes to take-down orders the person seeking the order must first have standing. We don't know where the project legally stands because there have not yet been any serious legal threats.
The "Constitutonal principles" that you mention did not spring magically out of nowhere when the US Constitution was written. You are viewing cutting edge legal issues with American glasses. The current Iraqi mess did not begin with Saddfam Hussein, but with the 1919 Treaty of Versailles. Hussein was very successful at keeping a lid on the problems, and managed to maintain one of the most secular states in an Islamic world that has more than its share of fanatics. There have been other coups in Iraq since 1919. I would be surprised if the person who emerges as the new Iraqi president out of the current democratization process lasts five years without being assassinated or overthrown in a coup. I doubt that Iraqi citizens would accept any extension of US "Constitutional jurisdiction and citizen protection". It's not theirs; they're not indigenous. This is an area that has also resisted fundamentalism since the 7th century despite the influence of a large southern neighbour. Can a nation from the other side of the world persevere that long.
Ecv
On Thursday 05 August 2004 19:24, Ray Saintonge wrote:
Nikola Smolenski wrote:
On Wednesday 04 August 2004 18:28, Jimmy (Jimbo) Wales wrote:
p.s. I would be interested in gathering examples of content that (a) we ought to have in the encyclopedia on editorial grounds but that (b) would not be legal for us to host in the United States.
In some countries, works enter public domain 50 years after author's death. So, there are wagons of pictures and texts of authors who died between 1934 and 1954 which are PD in those countries but not PD in the US.
All 1954 deaths are still have their works under copyright until the end
I did say between ;)
of this year. What you cite is the standard under international law. It is interesting to note that the countries that have or are pushing for longer copyright terms are rich ones with many businesses that are already heavily invested in their intellectual properties. The artists that did the work more than 50 years ago have long since been paid off.
The point is, if the Wikimedia's servers, or perhaps only the image server, would be in one of these countries, Wikipedia could use material which it can't use now.
On Fri, 6 Aug 2004 07:35:43 +0200, Nikola Smolenski smolensk@eunet.yu wrote:
The point is, if the Wikimedia's servers, or perhaps only the image server, would be in one of these countries, Wikipedia could use material which it can't use now.
I don't know. The foundation itself might be subject to restrictions if it is to operate in the United States- anything from legal liabilities to issues with its tax-exempt status (speaking of which, what's the status of that status?) Of course, there's always the ability to have some sort of local chapter manage the images in one of those countries.