Gregory Maxwell wrote:
On 7/20/06, Brianna Laugher
<brianna.laugher(a)gmail.com> wrote:
* To what extent are we bound by local laws and to
what extent are we
bound by Florida's laws (as the home of our servers).
[snip]
1) Uploaders should obey their local laws.
2) Content on the site should obey laws in Florida.
3) As a project with international goals an impact our content should
be as widely useful world wide as possible and thus be as free as
possible in every place with sane laws.
The content commons should host should be only content which passes
under each of those three broad areas.
So how do we define "sane" law? And how do we know whether uploaders
are obeying their local laws?
* Logos. This
has still not been sufficiently resolved, in that there
is not a clear enough solution that everyone is aware of. Do we
consider copyright independently of trademark status? Is that even
possible? (
Yuck. Cant we just leave these images for the projects to host locally for now?
We're not even near mastering copyright yet... Trademark is an even
more fun ball of yuck.
Trademark infringement depends even more on what you are using the
material for, or whether you are using the design to promote your own
business. As long we're just using it to illustrate the fact that it is
that company's trademark we are safe.
* "Agencia
Brasil" license (
http://commons.wikimedia.org/wiki/Template:Ag%C3%AAncia_Brasil ) also
has been debated several times. Related to the wider issue of, "if a
website says "these images can be used freely, can we interpret that
as allowing commercial use and derivative works, and thus
Commons-compliant? Or do we need to check each time whether they
intend to allow these specific rights?"
In American english "You may use this image" does not imply that you
can grant others unlimited redistribution rights, and the right to
make derivative works. Perhaps if someone said "you may use" with the
full knoweldge of who we are and what we do... but never as a general
permission on a website.
The statement was in Brazilian Portuguese, not American English. Where
are you granting these rights yourself? All you are doing is conveying
the source's position on the rights the user has. If no restrictions
are specified about the usage those restrictions do not exist.
* Photographs
of art - if the artwork itself is old enough to be PD,
is it true that any photograph of the art itself is also PD, but any
photograph of the art in its frame or on a wall is not? (Because it
is 3-D, not 2-D anymore)
Since I forgot to mention it before, I am not a lawyer. This is my
personal view. It has more to do with what I think our posisiton
should be irrespective of the law and what I worry the law might
become rather than what it is.
What the law might become can indeed be quite worrisome. See Peter
Suber's SPARC Newsletter at
http://www.earlham.edu/~peters/fos/newsletter/03-02-06.htm#collateral
He mentions WIPO's proposed Webcasting Treaty:
A draft treaty now before WIPO would create a new
level of protection,
above and beyond copyright, for "webcasters" --anyone who sends images
and sounds "at substantially the same time" over the internet. The
proposal would let webcasters block the copying and redistribution of
the webcasts even if the copyright holder had consented to OA, even if
the webcast content had a valid Creative Commons license or
equivalent, even if the content was in the public domain, and even if
the content was legally uncopyrightable.
I don't know if he's just being alarmist, but we don't even have an
article on this. Don't think that just because the people we here tend
to associate with are supportive of free access to information means
that there are no people who are just as dedicated to accomplishing
exactly the opposite.
When one frames what our position should be irrespective of the law one
saves a lot of confusion by not expressing it in terms of the law as it
might already exist. We begin with a position that is both ideal and
reasonably fair, and only after we have done that do we compare that
position with the existing laws to see if our ideal can in any way be
accomodated.
It depends. If it is a mechnical reproduction, suchs
works would be
free under US law due to Bridgeman v. Corel.
It's not clear to me that Bridgeman v. Corel would actually stand if
someone tried to apply it to, for example, works galleries publish of
because most of the time such works are not mere mechnical
reproduction but require substantial artistic and technical decision
making (try getting cobalt containing watercolors to come out right on
normal film or a normal CCD sensor.. YUCK).
As much of a problem as the above may be for us, it's not the worst of
it: Simmlar cases to Bridgeman v. Corel have come up in the UK and
the decision has been exactly the opposite.
I'd be much happier if we had people sneaking into galleries and
taking pictures (no flash please)... I don't have confidence that a
dependance on Bridgeman v. Corel will be good for us long term.
Like above I don't think this is (yet) the biggest of our problems.
I agree.
* Personality
rights. What permission is required of people
photographed, if any? (eg "Can I take your picture"/"Can I publish
your picture on a public database that allows commercial use?") Is
this a copyright concern or a "other law" concern that we don't need
to worry about? What if the people aren't recognisable (and how can
you decide that anyway?)? (
http://commons.wikimedia.org/wiki/Template:Deletion_requests#Image:Kind_in_…
is a current one, also some of the "visible thong" pictures on
http://commons.wikimedia.org/wiki/G-string have been nominated before)
This is something we need to do something about... We should at least
propose a standard model release for Wikipedian photographers to
use...
Without a releas photographs with identifyable people are not free
content in the US.
Again, common sense should prevail.
* Flickr allows
users to change the licenses on their images with no
external notice. So CC-BY or CC-BY-SA images uploaded to Commons might
later appear to be CC-BY-NC-ND or even "all rights reserved". This is
an increasing problem. Obviously Flickr needs a "history" tab, but
until then...? (current discussion at
http://commons.wikimedia.org/wiki/Commons:Village_pump#Flickr_allows_licens…
)
What is worse, is that uploaders on commons simply get them wrong
fairly often.. So it's hard to take a high ground on the subject.
Costant reference by jargony abbreviations doesn't help.
When it comes down to it, these people don't have
a contract with
us.. we've compensated them not a lick... they are completely unaware
of our use. As a result our position is weak.
Dutch courts have upheld CC licences. These are licences, not contracts.
It's simply not possible for a person to accidently
free their work
(i.e. by making a wrong selection from a drop down, and not catching
it before a Wikimedia commons scavenger finds it). If someone
protests we can, we do, and we must remove the work. It is the only
ethical thing to do (or do we want a reputation as a bunch of jerks
trying to rip creators off), and it is quite possibly the only legal
thing to do.
Acting ethically does not depend on legal compulsion.
This is just another reason that we should reduce our
reliance on
image scavengers and instead ask people to upload their works directly
and with full knoweldge of the consiquences However, people seem far
more interested in running bots to scavange rather than sending out
email invitations to join our effort. One pumps your contrib count
and makes you look good, the other brings you no positive attention
but helps the project more.
A person should be held just as responsible for the actions of his bots
as for what he does directly. If you let your dog off the leash and he
digs up somebody's flower garden (or worse) it's you that pays the fine
not the dog. Letting bots off the leash should be no different.
I really feel
distaste at the idea that the Foundation would avoid
involving itself in such questions in order to avoid legal
culpability.
Why? None of these are cut and dry. If we limit ourselves to only
the images that are zero risk we would have a LOT less content... and
we'd have to reject a lot which will be free for all meaningful
purposes. When it comes down to it, most of these things can only
be decided in a court, and courts rule in strage ways. An official
statement by the foundation would be risky and without much gain...
after all, what would a statement really accomplish that we couldn't?
Individual responsibility! Otherwise there are problems at both ends of
the scale.
Ec