On 1/15/07, Ray Saintonge saintonge@telus.net wrote:
teun spaans wrote:
The biggest error I see here is that people are trying to limit language versions of Wikipedia so that they comply with the laws of the country where the language is primarily spoken. But that's fruitless. The Italian Wikipedia (hosted in Florida) isn't under Italian law just because it's in Italian. Nor are Italian citizens liable for something on the Italian Wikipedia just because the page is in Italian.
I politely disagree. When the person doing something has the Italian nationality, and the person commits the act from italian territory, and the claiment is italian, an italian judge might well decide to consider the claim, despite the servers being in the us.
"Commits the act from italian territory" is the important one. Italian nationality should not matter; if a foreigner travelling in Italy with his laptop uploads a copyvio image while he is there would he not be liable?
It is absolutely correct that he still would be liable. In theory as well as in practice. In practice the chance would also be greater that the department of justice would decide to let the matter rest, as fairly unimportant, and not worth the trouble. We shouldnt count on it, but we can keep in mind that Italians in Italy, probably the bulk of editors of the Italian wiki, should obey Italian law.
An Italian claimant could even start a case against a foreigner in an Italian court even if that foreigner had never set foot in Italy. The judge might even convict him in absentia, but getting him to Italy to face the punishment is another matter. Similar things have happened in English courts, and the United States has refused to honour international orders on such things. Also the cost of getting him to Italy to collect a fine may be more than the fine itself.
We still need to distinguish between Italian language and Italian nationality. The language of the writing has nothing to do with this. An Italian resident writing in English is still liable, and a foreign resident writing in Italian (or a minor language of Italy) remains safe.
Ec
I do not deny that there is a difference between the Italian territory or the Italian language. But I do acknowledge that for the Italian wiki the majority of the wikipedians operates from Italian territory.
So I can well imagine that an italian wikipedia will not allow fair use, solely form the reason that the Italian volunteers operating from Italy would be liable under Italian law. In court they could try to hide behind a claim that the wiki operates under Italian law, but chances that an Italian judge would buy that argument diminishes with every Italian factor (contributor, territory (most decisive), language, and so on).
On the Dutch wiki we disallowed fair use for several reasons. Being not free is one of them, and the most important of them, but the risk for wikipedia itself and for individual wikipedians also counted: Dutch citaatrecht is much more limited than fair use, and we decided to comply with both Dutch and Belgian law - the two main territories from which volunteers operate. (And yes, at that time we had volunteers in the USA, South Africa, Thailand and a number of other countries). We don't want to risk a court order to close wikipedia in the Netherlands or Belgium, and we dont want to tempt volunteers to trespass Belgian or Dutch law.
teun
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