On Jan 7, 2008 10:51 AM, Mike Godwin mnemonic@gmail.com wrote:
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But I think we have to ask ourselves,
every time we use content that has not been freely licensed, is this something we're ready to *pay* to go court over?
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In blunt terms: Yes, it should be.
There are a variety of legal ambiguities that swirl around the Foundation and its activities. Not least of which are the reach of the safe harbor provisions of the DMCA that we often argue WMF is entitled to. Legal precedents have value and help deter future suits. If we truly believe that the WMF is in the right, then we should be prepared to defend that for the sake of establishing those precedents. We don't want to be an organization that earns a reputation for cowering whenever a law suit is threatened. That would merely given undue power to our opponents. And pre-emptively cowering by systematically removing legitimate works that might draw bogus lawsuits, is even worse.
Obviously, we don't want to press law suits when we are in the wrong, but we also shouldn't be shying away from legally permissible fair use simply because we are afraid that every so often there will be a fight over it. I am oft-reminded that man has only those freedoms that he is prepared defend. Well, fair use is one of those freedoms, and in such circumstances that invoking fair use is a necessary and justified means of improving Wikipedia/Wikimedia, we should be willing to defend that right.
As for being financially positioned to fight such suits, I don't think that's even an issue. Fighting abusive legal threats when you believe you are in the right (which I assume are the only form that we'd fight aggressively for) make for good public relations and is a cause that I would donate to, and I have to assume many others would to. Should it come to that, I think the "Wikipedia Legal Defense Fund" is much more effective fundraising tool than any of the gimmicks we've tried lately.
-Robert A. Rohde