Robert Rohde writes:
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.
Then I think the obvious next question is, how much money (in dollars or Euros) should we be willing to allocate every year to the defense of cases we believe we will likely win? Or, to put it another way, how much of our budget (in percentages) should we be willing to allocate every year to the defense of cases we believe we will win?
I assume because of your position as stated here you believe we should be willing to spend all the money we now have (or more) in doing so, because to do anything less would be an unacceptable compromise.
--Mike
On Jan 8, 2008 4:26 AM, Mike Godwin mnemonic@gmail.com wrote:
Robert Rohde writes:
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.
Then I think the obvious next question is, how much money (in dollars or Euros) should we be willing to allocate every year to the defense of cases we believe we will likely win? Or, to put it another way, how much of our budget (in percentages) should we be willing to allocate every year to the defense of cases we believe we will win?
I assume because of your position as stated here you believe we should be willing to spend all the money we now have (or more) in doing so, because to do anything less would be an unacceptable compromise.
Don't mistake me for a wild idealist. I recognize there do need to be
practical considerations, but if we are really planning for a $4M budget, then setting aside say $200k (5%) to defend cases where we believe that we are in the right seems like a more than reasonable starting point (in addition to money set aside to address other legal issues). Not to mention that I continue to believe that a legal defense of Wikipedia would be a very effective rallying point to draw additional funds and the support of like minded organizations (e.g. EFF, etc.)
However, if we are really going to talk about practical legal concerns, would anyone with inside information be willing to state exactly how many times WMF has been sued over fair use concerns? As far as I know, the number of actual suits may even be zero.
I know Wikipedia gets copyright complaints. Some are justified and we should take down inappropriate materials. A few are abusive (i.e. nonsensical copyright claims with little to no support in law). I can even think of examples where obviously bogus complaints were willfully ignored, but I can't think of a single example of a copyright complaint that actually escalated to a law suit. If you know different, please correct me.
So, if we are going to talk about the practical risk, then we ought to ask whether the system as presently exists has actually ever resulted in a demonstrably negative legal impact. Wikimedia is an enormous and high profile content provider. If we have never (or almost never) been sued regarding copyright then frankly, I suspect we are already too conservative. Simply as a product of our success we ought to expect and be prepared to defend the occassional frivilous lawsuit.
-Robert Rohde
Hoi, The legal cost are not exactly zero if you do not get to court. It is poor practice when you relate the amount of money to the amount of money spend on court cases. I agree with you that people are likely to help out when we do go to court. I even agree that it may even be a good thing to go to court, but this should be a high profile case like this Chinese company flouting the GFDL and using the whole of the zh.wikipedia. Thanks, GerardM
On Jan 8, 2008 2:58 PM, Robert Rohde rarohde@gmail.com wrote:
On Jan 8, 2008 4:26 AM, Mike Godwin mnemonic@gmail.com wrote:
Robert Rohde writes:
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.
Then I think the obvious next question is, how much money (in dollars or Euros) should we be willing to allocate every year to the defense of cases we believe we will likely win? Or, to put it another way, how much of our budget (in percentages) should we be willing to allocate every year to the defense of cases we believe we will win?
I assume because of your position as stated here you believe we should be willing to spend all the money we now have (or more) in doing so, because to do anything less would be an unacceptable compromise.
Don't mistake me for a wild idealist. I recognize there do need to be
practical considerations, but if we are really planning for a $4M budget, then setting aside say $200k (5%) to defend cases where we believe that we are in the right seems like a more than reasonable starting point (in addition to money set aside to address other legal issues). Not to mention that I continue to believe that a legal defense of Wikipedia would be a very effective rallying point to draw additional funds and the support of like minded organizations (e.g. EFF, etc.)
However, if we are really going to talk about practical legal concerns, would anyone with inside information be willing to state exactly how many times WMF has been sued over fair use concerns? As far as I know, the number of actual suits may even be zero.
I know Wikipedia gets copyright complaints. Some are justified and we should take down inappropriate materials. A few are abusive (i.e. nonsensical copyright claims with little to no support in law). I can even think of examples where obviously bogus complaints were willfully ignored, but I can't think of a single example of a copyright complaint that actually escalated to a law suit. If you know different, please correct me.
So, if we are going to talk about the practical risk, then we ought to ask whether the system as presently exists has actually ever resulted in a demonstrably negative legal impact. Wikimedia is an enormous and high profile content provider. If we have never (or almost never) been sued regarding copyright then frankly, I suspect we are already too conservative. Simply as a product of our success we ought to expect and be prepared to defend the occassional frivilous lawsuit.
-Robert Rohde _______________________________________________ foundation-l mailing list foundation-l@lists.wikimedia.org Unsubscribe: http://lists.wikimedia.org/mailman/listinfo/foundation-l
On Jan 8, 2008 7:26 AM, Mike Godwin mnemonic@gmail.com wrote:
Robert Rohde writes:
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.
Then I think the obvious next question is, how much money (in dollars or Euros) should we be willing to allocate every year to the defense of cases we believe we will likely win?
What's wrong with just forwarding the DMCA takedown notice to the original contributor and letting that person decide whether or not to issue a put-back notice?
Anthony wrote:
On Jan 8, 2008 7:26 AM, Mike Godwin mnemonic@gmail.com wrote:
Then I think the obvious next question is, how much money (in dollars or Euros) should we be willing to allocate every year to the defense of cases we believe we will likely win?
What's wrong with just forwarding the DMCA takedown notice to the original contributor and letting that person decide whether or not to issue a put-back notice?
I would go farther than that. All properly formulated takedown notices with which the Foundation complies should be made public. The right to issue put-back notices is not restricted to the original contributor of the material; anybody can launch such an action. Let the users accept responsibility for the content.
If the Foundation has an issue that it wants to fight it simply doesn't comply with the takedown order.
I would put nothing or only minimal amounts into a litigation war chest. That kind of move only tells would-be plaintiffs that we're itching for a fight.
Ec
Mike Godwin wrote:
Then I think the obvious next question is, how much money (in dollars or Euros) should we be willing to allocate every year to the defense of cases we believe we will likely win? Or, to put it another way, how much of our budget (in percentages) should we be willing to allocate every year to the defense of cases we believe we will win?
I'm going to ignore a huge amount of the prior discussion because I think this is a key issue that Mike could expand on.
Lawsuits are expensive and some litigious people are well aware how to game the system in an effort to wear down your warchest. Wikimedia - and Wikipedia in particular - is a target that many people would love to see disqualified from claiming the protections they do under ISP status. If you sit back and think about the discussions that have been followable over the past few days/weeks then there are little technical details like peering arrangements which help solidify that position.
Personally, I don't have any doubt it should actually be a line item on the detailed budget... But the one that is published should roll it up into other legal advice and consulting costs to conceal the size of the warchest.
On the other hand, I wonder that if the Foundation goes beyond fighting cases to retain their ISP status and protect the rights they extend under privacy policy then they will lose the former.
In the end it all comes down to the individuals who write, support, and possibly protect material that becomes contentious. I am sure that Mike would likely off the record suggest options to discuss with a lawyer and, depending on his informal advice and understanding of the situation, bring it up with ex-colleagues at the EFF.
Suing someone who has breached the terms under which Wikimedia content is made available is entirely a different matter.
Forgive me if some of this is retreading old ground, but I've over 50 messages for this list since yesterday. Can we have a rerun (or a January run) of the top poster stats? I was 2nd last time and felt embarrassed despite having thought most of what I wrote was close to the topic in question.
Brian McNeil
Mike Godwin wrote:
Then I think the obvious next question is, how much money (in dollars or Euros) should we be willing to allocate every year to the defense of cases we believe we will likely win? Or, to put it another way, how much of our budget (in percentages) should we be willing to allocate every year to the defense of cases we believe we will win?
Is there any evidence that a large amount of money would be necessary? Is there a large and increasing number of suits or something that necessitates we do something to reduce the number of cases we have to defend? Or is this purely a hypothetical?
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. If anything, many academic journal and university press administrators are of the opinion that they could/should be significantly more bold in claiming fair use than they are currently.[1]
-Mark
[1] See, e.g.: http://legalminds.lp.findlaw.com/list/cni-copyright/msg06352.html and http://www.psupress.org/news/news_NACUA.html
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