On 5/13/05, Stan Shebs shebs@apple.com wrote:

Like how exactly? How would a picture of Mickey be used in any other way than to illustrate an article about animated characters or Disney?

Fair use is for commentary and criticism. In an ideal form, a Wikipedia article with photos of Mickey might count as "commentary". There is also the question of whether or not we would be using it in a way which deprives Disney of any income, which is more open to interpretation, and the question of whether or not someone visiting Wikipedia would be confused as to whether or not it was affiliated with Disney ("Sure," the lawyers say, "it says Wikipedia up in the corner. But it says 'Mickey Mouse' at the top of the page, and then goes on to describe it in an authoratative manner, with copyrighted images all over the place!"). Are we using it as a commentary on Mickey Mouse or just using it to illustrate and describe Mickey Mouse? As I understand it, "fair use" does not necessarily apply if you just want to illustrate an encyclopedia article on a subject, whether you charge for it or not.

Images are a much more difficult media to deal with than is text. Text can be easily re-written or paraphrased and be a legally distinct new form. Images are more difficult, and the way the courts rule can be highly arbitrary (viz. the cases at http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.htm...).

Let's move beyond Disney and to another pet peeve of mine: historical images by news corporations. For example, the wonderful image of Bryan and Darrow at [[Scopes Trial]]. Iconic image, very famous! But also likely owned by a stock photography company, i.e. Corbis or Getty Images. These guys make their entire income on licensing pictures and asserting their copyright on them -- Wikipedia "giving them away for free" seems like it would definitely fall into a questionable category. Is it "commentary" on the copyrighted work itself, or are we just using it to illustrate an article?

One of WP's most useful defenses is to become even more popular and respected. We want to be in a position where all the judges in the building have to recuse themselves because they and their clerks consult WP on a daily basis, or have them find lawyers in contempt for merely suggesting that WP has any evil intentions. :-)

Evil need not be intended -- if a company makes its money by the selling of copyrighted material and we "give it away", that's problematic. Robin Hood wasn't evil, but he certainly broke the law.

Perhaps more realistically, we want to be so credible and widely used that merely publishing the C&D letter on the main page will cause the foolhardy company to get deluged with hate mail and backpedal within 24 hours, disavowing any knowledge of the law firm that sent the letter. We've shown we can raise thousands of dollars within a few days just by asking; that's a reservoir of good will that can help us deal with a wide variety of threats.

I don't think this will cut it -- some of these companies (RIAA, MPAA) don't seem to have any problems with negative PR. At least, that's what I took away from Lawrence Lessig's book on copyright law ("Free Culture", available at http://free-culture.org/freecontent/) which I found quite interesting thought a bit scary.

Personally I think the best approach would be to have a much stricter rule about "fair use" for pictoral and sound content (the latter doesn't seem to be as much of an issue, yet). Again, the effects of "fair use" and the reach of copyright seems to vary widely by the media in question: it is easy to make text "free", it is hard to make images (especially historical or commercial) "free". This might mean sacrificing some of our aesthetic appearances and make us look a bit different from the standard "encyclopedia" in many respects -- we don't pay the sorts of licensing fees that EB pays for this sort of content.

I think this is one of the things WP is going to get bit on the butt about at some point, but hopefully I'm wrong!

FF