Second, for the case of non-bogus complaints (under
German law) it makes
sense (usually) for us to comply with them out of the interest of
maximal reusability. This is a huge grey area, but for example the
German Wikipedia policy of "no fair use" seems sensible to me.
Well, the situation on the German Wikipedia is not very satisfactory in
this regard, and many editors are increasingly recognizing this.
Articles which are richly illustrated in English are entirely without
pictures in German. This is especially true in cases where we will never
be able to get free content images of the characters, such as cartoon
series. (Making them available as free content would allow the creation
of derivative works, which obviously the creators do not want.)
An interesting exception is this one:
Here, the German Wikipedia is trying to be clever by using 3D puppets of
the Simpsons characters. However, such puppet designs are just as much
copyrighted as a other picture of the Simpsons cast, so the "workaround"
isn't really a workaround at all. (Note that Disney has threatened
bakeries for selling Mickey Mouse shaped cakes and the like.) It
actually makes the situation worse because we claim that these pictures
are GFDL and therefore can be used for derivative works and commercial
The simple fact is, you won't get free content pictures of the Simpsons
cast. Just forget it. You can have photos of the voice actors, of
course, but getting a picture of Homer Simpson even under CC-BY-ND-NC
would be difficult. Permission for Wikipedia only might be possible, but
I think we all agree that this isn't very helpful.
When the copyright policy on the German Wikipedia was originally
drafted, I suggested making exemptions that are allowed for scientific
purposes under German copyright law. However, that proposal was narrowly
defeated by the now established "no fair use" doctrine. A heated
discussion is underway to again somewhat relax the policy.
I agree with you that we should maximize reusability. There are,
however, two additional comments I would make on this:
1) Many countries have legal frameworks which are similar, but not
identical to the US framework. We should generally try to interpret
local law in a way that is generous to us, as the above demonstrates.
Insofar as German law has "fair use" like exemptions, I believe it is
unwise to reject those.
2) We should *never* comply with laws that would violate the spirit of
Wikipedia. [*] Having no pictures of the Simpsons in a free content
encyclopedia is forgivable. Removing facts from an article about Taiwan
because of fear of Chinese censors is not.
This is precisely what worries me about Chinese Wikinews -- that our
current attitude to it emboldens users in the Chinese Wikipedia who
would remove facts and justify it by citing the threat of censorship for
the whole Wikipedia, or worse, justify it by citing your comments on
this. Defying censors needlessly is indeed wrong, but so is appeasement
if it affects our core principles.
I am concerned that the proliferation of chapters will contribute to
more conservative legal interpretations, as people will feel they need
to prevent the organization from being held liable (even if its bylaws
explicitly disclaim liability). I think the above goals, if we agree on
them, should be formally written down somewhere (perhaps the WMF bylaws,
and a general chapter policy) and be introduced into the discussion
process of any new chapter.
[*] Note that I did not say "foreign laws". What we should do if US law
made Wikipedia's existence impossible as it is today is an interesting
question. I personally believe that in an extreme situation, a new legal
home for the project and its organization should be sought.