Jon Harald Søby wrote:
On 2/8/07, Gunnar René Øie gunnarre@nvg.ntnu.no wrote:
Because if the fair use claim is valid and strong enough, then
commercial re-users can use those fair-use images. Non-commercial and "Wikipedia only"? Not so.
Wrong. If the fair use claim is valid and strong enough, then commercial re-users can use those fair-use images IN THE USA. Please note that 30-33% - or some 111 million people* - of all first-language users live outside the US, and thus cannot legally freely reuse this content. If you count second-language speakers as well, this number rises to 1.5 BILLION PEOPLE who cannot freely reuse Wikipedia content.* Is that within our scope? I don't think so.
I don't see the issue in simple terms of how many people can use the fair use material. Still having that many people arguing for fair use can present quite a strong voice. I would argue that a person living in a country that does not grant an individual copyrights greater than what that individual receives in his own country could claim fair use for works by a US producer. Denying fair use for US sourced material would be giving that person greater rights than what he receives in his own country.
When considering transitivity of fair use only one of the four factors gives us any trouble. The nature of the work used does not change, it is impossible for the re-user to use any more than the already insubstantial portion that we use, and if our use does not affect the market for the right's owner goods it is impossible to see where the market effect will change. If the re-user combines our fair uses with the fair use from an other site to create a composite, or even manages to tap enough of several fair uses to effectively re constitute the entire original work he is an abuser as well as a re-user. That kind of behaviour is completely out of our control.
The first factor is the problem: "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes". We can control the purpose and character of our own use, but not that of the re-users. Our use is clearly not of a commercial nature, but we allow our re-users to act commercially. The use of the word "including" in that clause suggests that that provision is not used alone, and need not be the sole determining factor. It does cannot be interpreted to automatically exclude all commercial use and include all nonprofit educational uses. Judicial analyses of this factor tend to focus on the transformative nature of the use. Is the user changing the use into something other than that applied by the rights owner? We could ask ourselves, "If circumstances differed only in that we were a commercial operation instead of a non-profit one would our own identical use still be fair use?" If yes, would it not also be so for our re-users? If our own use is transformative, an identical re-use is also likely to be transformative, notably in mirror sites. Further transformations by re-users into new uses should also be acceptable. The only thing left then is those commercial sites who manage to transform fair use back into an infringement. This, like so many other abuses, is well beyond our control. Is is a "_significant_ legal restriction" in the sense intended by Kat's analysis.
Much of my comments above depends on US law. Other countries will be more restrictive, and that will certainly influence our decisions. Perhaps a policy that derives from the Berne Convention concept of "fair practice" might be more useful than a country by country analysis.
Ec