On 1/15/07, Ray Saintonge <saintonge(a)telus.net> wrote:
teun spaans wrote:
biggest error I see here is that people are trying to limit language
versions of Wikipedia so that they comply with the laws of the country
where the language is primarily spoken. But that's fruitless. The
Italian Wikipedia (hosted in Florida) isn't under Italian law just
because it's in Italian. Nor are Italian citizens liable for something
on the Italian Wikipedia just because the page is in Italian.
I politely disagree. When the person doing something has the Italian
nationality, and the person commits the act from italian territory,
and the claiment is italian, an italian judge might well decide to
consider the claim, despite the servers being in the us.
"Commits the act from italian territory" is the important one. Italian
nationality should not matter; if a foreigner travelling in Italy with
his laptop uploads a copyvio image while he is there would he not be
It is absolutely correct that he still would be liable. In theory as
well as in practice. In practice the chance would also be greater that
the department of justice would decide to let the matter rest, as
fairly unimportant, and not worth the trouble. We shouldnt count on
it, but we can keep in mind that Italians in Italy, probably the bulk
of editors of the Italian wiki, should obey Italian law.
An Italian claimant could even start a case against a
in an Italian court even if that foreigner had never set foot in Italy.
The judge might even convict him in absentia, but getting him to Italy
to face the punishment is another matter. Similar things have happened
in English courts, and the United States has refused to honour
international orders on such things. Also the cost of getting him to
Italy to collect a fine may be more than the fine itself.
We still need to distinguish between Italian language and Italian
nationality. The language of the writing has nothing to do with this.
An Italian resident writing in English is still liable, and a foreign
resident writing in Italian (or a minor language of Italy) remains safe.
I do not deny that there is a difference between the Italian territory
or the Italian language. But I do acknowledge that for the Italian
wiki the majority of the wikipedians operates from Italian territory.
So I can well imagine that an italian wikipedia will not allow fair
use, solely form the reason that the Italian volunteers operating from
Italy would be liable under Italian law.
In court they could try to hide behind a claim that the wiki operates
under Italian law, but chances that an Italian judge would buy that
argument diminishes with every Italian factor (contributor, territory
(most decisive), language, and so on).
On the Dutch wiki we disallowed fair use for several reasons. Being
not free is one of them, and the most important of them, but the risk
for wikipedia itself and for individual wikipedians also counted:
Dutch citaatrecht is much more limited than fair use, and we decided
to comply with both Dutch and Belgian law - the two main territories
from which volunteers operate. (And yes, at that time we had
volunteers in the USA, South Africa, Thailand and a number of other
countries). We don't want to risk a court order to close wikipedia in
the Netherlands or Belgium, and we dont want to tempt volunteers to
trespass Belgian or Dutch law.
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