Thomas Dalton writes:
Would defending one case reduce costs of future cases by virtue of establishing a precedent, or will it still cost enormous amounts even if with a precedent?
It depends on far too many factors to list here.
However, your question makes me wonder. Is your concern about fair use rooted primarily in concern about our telling reusers what is fair use?
No. It's concern about our reusers getting sued.
Delirium writes:
Unless I'm missing some recent change, historically copyright holders have been very wary of pressing lawsuits against educational and non-profit entities in cases where fair use might be a plausible defense, for fear of losing the case and establishing a strong pro-fair-use precedent.
Historically, there's only been one non-profit entity with a top-ten website. In recent years, copyright holders have been more aggressive at initiating litigation in response to the perceived threat of digital reproduction and redistribution. (Aside: between 1999 and 2005 I worked on digital copyright policy in Washington.)
Anthony writes:
As the only one who mentioned the DMCA in this thread I'll pretend that question was for me.
It wasn't, though I'm happy to respond anyway.
Besides the obvious argument that a free encyclopedia should contain free content, I think such mixing of free and non-free content goes against the spirit if not the letter of the GFDL. But I'm also for being honest about the reasons that content is removed.
I think this is an important consideration. We want the content we make available to be maximally unencumbered (with that lack of encumbrance enforced by the GFDL or similar license). "Fair use" content doesn't meet that criterion.
Please understand that I am resolutely in favor of fair use, of fair use/fair dealing doctrines, and even of occasional use of such content on our projects. But we can't pretend that the issues regarding protecting the Foundation and its projects and the communities we serve are the same as straight-up issues about copyright and fair use. There's some overlap, sure, but the issues raised are different, depending on context.
As any copyright lawyer will tell you, context is pretty much everything in copyright law.
--Mike