2007/1/28, Jeffrey V. Merkey <jmerkey(a)wolfmountaingroup.com>om>: But what if there is no such request? Should we keep everything on the site until we get a request to take it down? Or should we only put things on that are as free as our own texts? Or something somewhere in between? That's what the issue is about. -- Andre Engels, andreengels(a)gmail.com ICQ: 6260644 -- Skype: a_engels

On 1/28/07, Jeffrey V. Merkey <jmerkey(a)wolfmountaingroup.com> wrote: This argument is pure copyright paranoia. What I mean by that is that Jeffrey is asserting as fact a hypothetical scenario ("The foundation will be the ones who get served and Brad will have to hire a law firm to defend the Foundation.") That's possible, but certainly not guaranteed.

The Cunctator wrote: Yeah? How many of you have actually had to stand in front of a judge with millions of dollars of **YOUR** money on the line. I have stood there more times than I care to mention, and in most cases not by my own choice. Judges will not listen to whining exusces and weak arguments, and you don't get to argue over and over again after they rule -- you have to pay. The real shocker is when the judge orders you to pay the other sides legal fees. What if they hire Coudert Brothers from new York to defend them who charges $500.00/hour and they rack up 350,000.00 in fees just to send a dozen letters and file a complaint and you get ordered to pay it. Cheaper to take down the content. Jeff

David Gerard wrote: It can go the other way -- depends on who wins. In a case where we are using someones copyrighted images and they were posted by a n anonymous editor, I woud dare to guess we may not alays be on the winning side ... We should act in good faith always. Good faith means if someone creates a "cloud of doubt" and they are an undisputed owner of the materials in question, a good faith action would be to remove it. " your honor, we always strive to act in good faith in all situations, and in the present case, we were notified the materials may have been copyrighted and removed them immediately IAW with our policies. Given our actions in good faith, we cannot be held liable as the other side claims since we are simply a third party interactive web service and we have complied with the DMCA at all times ..." :-) Jeff

Jeff V. Merkey wrote: Unfortunately in this case, official policy is that we are simply grabbing content and claiming fair use. We know these are copyrighted images, and yet we are permitting their use on Wikipedia openly, even though we also know that we don't have any sort of permission to do so. There are some items such as trademarks, bank notes, government seals, ect. that I feel are justified in terms of fair use. I just don't think that nearly everything that currently is being claimed for fair use fits the same rationale. The question here is where to draw the line, and I see at the moment that the current line is to the point that nearly everything that could be claimed under fair use, including overt usage of the non-commercial nature of Wikipedia and the educational mission of the WMF as justification to keep the content. It is for this reason that I question how the copyvio template could even legitimately be used on an image, except if it were redundant or of somebody or something non-notable on Wikipedia. -- Robert Scott Horning

Ray Saintonge wrote: If they cannot establish they own the rights to the materials to the Foundation, then it is doubtful they will be able to convince a judge of this. An attorney sending a letter or posting a notice asserting such claims are true is about the only bonafide proof there is, short of a court ruling. Attorneys are bound by rules of professional conduct. Falsely asserting copyright ownership on behalf of a client could get them brought up on allegations with their state bar. If they are disbarred, they cannot practice law. Lawyers are not allowed to bill their time to answer bar complaints, and it could take 6-12 hours or more in what would have been valuable time they could bill for. If they work for a law firm, bar complaints can get them in a lot of trouble. As such, any attorney claiming copyright on behalf of a client is most probably telling the truth and has done their homework on the claims. That's how you tell. When an attorney sends a DMCA notice to the foundation. At which point, the content should come down. Jeff

Ray Saintonge wrote: Attorneys do not send letters to a potential third party unless they have done their homework. I would take an attorneys demands as credible in most cases with copyright. Employment law is different as is any situation where the court would have to "balance the equities" you should look hard at the situation since the court will have to weigh through the rights of both parties and come up with an equitable solution (like trade secret law and non-competes as a good example). There is no balancing test for copyright infringement, its statutatory, and so are the damages. In such a cut and dry case, I would tend to err on the side of caution. At any rate, Brad eloquently addressed the issue and said "if this is a free encyclopedia, why do we have fair use images being used -- use free ones if at all possible and make the issue moot." :-) Jeff

On 1/29/07, Brad Patrick <bradp.wmf(a)gmail.com> wrote: My attitude is that Wikipedia should be pushing the copyright envelope (within reason, of course) on all fronts. All non-governmental content from the past century is covered by copyright (essentially). We should be expanding (and we are) the amount of content covered by free licenses (GFDL,CC-SA). We should also be demonstrating the importance of challenging the absurd life and strength of copyright laws by taking advantage of fair use when we can. Google is a great example of a company that by dint of its popularity gets to run roughshod over copyright restrictions that companies would squash if they weren't so reliant on Google. Similarly Wikipedia is now in the position of being one of the 800-pound gorillas. Wikipedia has the power to shape law because of its size and influence.

On 1/29/07, George Herbert <george.herbert(a)gmail.com> wrote: We're neither. For most the net we are wallpaper. Experience suggests it or scale models will turn up in a museum For example: http://en.wikipedia.org/wiki/Image:Vostok_1_after_landing.jpg I know of two legal systems that have fair use. People living under other systems get by. It is get used to it. Then why was I deleting trivially replaceable non free images for rather a lot of last week? Are you seriously going to tell that since February 2006 no one has been in a position to make a pic of Pickled cucumber? Experience suggests otherwise and at present time there is no significant movement toward deleting all fair use material. Please provide details of the licence they are under -- geni

On 1/29/07, George Herbert <george.herbert(a)gmail.com> wrote: You need to learn to wait. An image is not required today. No one ever claimed that fair use was clarity personified There is anti abuse-of-fair-use activit going on but anti fair use activity is limited. It is limited. It is also the correct course of action. A the present time the number of fair use images in en does not appear to be falling. That isn't a lisence. -- geni

George Herbert wrote: One of the questions I have asked over and over again without even a single reply or good example is to try and demonstrate some other major publication, such as a commercial encyclopedia or a book published by a major commercial publishing house, that uses fair use images in the extent that Wikipedia seems to be using them. I can't think of a significant example to hold up. The only situation I can think of is some web site like MySpace or similar kind of mass website that doesn't really take copyright seriously in the first place. That is hardly a good comparison to stand in the same company. If you can't handle the fact that the images and artwork are copyrighted and you can't get a copy of that particular photo, live with it! Copyright law is about a government monopoly grant over the control of those image, and you simply must get permission to use those images from the copyright holder. The most common way to do that is through the use of a license that controls how you are permitted to reproduce that content. The GFDL is one particularly effective way to accomplish this task, if you want the content to remain available under a FLOSS type philosophy, but not everybody in the world cares to have their images reproduced under that sort of arrangement. In some cases (many cases, in fact) there are some photographers who are hoping that by being in the right place at the right time, that they would be able to get some sort of economic complensation for taking that photograph in the first place. Indeed, this is the very definition of a freelance photographer as this is largely what they hope will happen. Some photos are so defining that they end up becoming literally iconic in stature for what they are portraying. Some of these are in the public domain, but often these are photos taken by photographers who just happened to be in the right place to get it done.... plus have the skills to make sure that at the right moment they were ready with the camera in focus, and a decent enough camera that the image would also come in very clear. These skills often take a lifetime to develop and is the very basis for their economic existance, relying on these unique opportunities. As far as how to convince a group like the ISRO to allow either a volunteer Wikipedian (or Wikinewsian) to take a photo for things likely to be significantly newsworthy or noteworthy in the future under a FLOSS-type license, that is something that perhaps does deserve discussion. Publicity opportunities of this nature do happen from time to time, and surprisingly there are people who actually do take these photos and submit them to the Wikimedia Commons. I've even had the opportunity on a few rare occasions, but the photography equipment I've had is usually lacking. You also have the opportunity to address the issue with the group or organization involved and try to get them to release the images under a free license. I have known several groups and even for-profit companies who have gladly donated images to Commons under the GFDL or other free licenses. It isn't nearly as hard or as difficult as it is being portrayed here, and many of these groups actually enjoy that articles about them on Wikipedia are "classed up" by having a few photos about them that are of high quality. When you point out that they still retain copyright over the photos, they are in some ways very interested in the whole concept, which may even be a new idea to some P.R. folks. I am not against fair use completely, but I do believe that any such usage of fair use content must be significantly limited. Not every photograph or rendered image can or ought to be available under a fair-use justification. And it is also just as important to try to get a "free" alternative, and to try and encourage Wikipedians to "try harder", as in most cases they appear to simply be lazy contributors. I also know that I've made several mistakes myself in terms of uploading content that I considered at the time to be fair use but in fact it really wasn't. To be very fair particularly to our new contributors, the fair use policies need to be very clear and very limited. They should not have to pass a bar examination on intellectual property rights in order to effectively be able to decide what is reasonable content to upload on Wikimedia projects, or for administrators to have to decide when somebody has gone too far. I also strongly disagree that Wikipedia and other Wikimedia projects ought to be the ones "pushing the envelope" in terms of getting right to the edge on fair use legal usage. Having Wikimedia users organize (outside of the juristiction of the WMF) to campaign to legislators and chief political executives for the advancement of free images and the ability to have images that have orphaned copyright or to set up legislation that would permit legal usage of some of these photos may be a good and worthy goal. I just don't see that pushing the envelope and saying "see this! try and sue me now!" is going to either win friends for Wikimedia projects or really be helpful in the long run. -- Robert Scott Horning

On 1/29/07, geni <geniice(a)gmail.com> wrote: Information being free... an encyclopedia, specifically, but the constituent flood of information ... is a core Wikimedia Foundation goal. I don't think we should wage huge PR or legal or paid lobbying campaigns to free up information. I think we should reasonably take a stand that the Fair Use laws mean what they say, and that Wikipedia and others are entitled to make use of them, and do so. Shying away from it destroys credibility in the single largest free access to content legal model in existence. Free content, including all of Wikipedia, pales in comparison to the significance to world society at large that Fair Use brings. That may not be true in 10 or 20 years, but for now, we should embrace Fair Use and use it. Fairly, legally, and stomping on those who would attempt to abuse Fair Use in our project, but we should embrace it nonetheless. -- -george william herbert george.herbert(a)gmail.com

On 1/29/07, geni <geniice(a)gmail.com> wrote: http://www.nytimes.com/2007/01/29/technology/29wikipedia.html

The Cunctator wrote: Philosophically I agree with you, but I think that WMF should not be the one playing this role. As an ISP it should maintain an arm's length from these disputes, and respond correctly to all takedown demands. For the sake of keeping itself protected WMF should avoid taking on dumb risks. This does not mean that individual projects cannot take more aggressive stands, but the lines of responsibility must be clear. These must be accepted by individuals. If someone feels strongly that using the Escher drawings is fair use, he should be the one prepared to argue the matter in court. The rest of us should not be kept hostage because of one person's idiotic misunderstanding of fair use. Oddly enough, there is a bigger problem with people who do not protect their own copyrights. By failing to say yes or no to our uses they keep the situation uncertain. Even those copyvios which seem obvious are not questioned, as much as we may be willing to accomodate their complaints. Maybe the last half-century. For the US one needs to remember that works published before 1964 had to be renewed, and this was only done for a small proportion of those works. Yes. This involves not only using free, but making free. Especially in approaching the question of orphan copyrights. At the same time we should no become fixated on the idea that fair use is the only available tool. Maybe it's because they don't roll over at the first sign of danger. Paranoia is rarely an effective tactic. A mere baby, and growing. A significant portion of the Wikimedia community has failed to grasp this. Ec

On 1/29/07, Brad Patrick <bradp.wmf(a)gmail.com> wrote: To everybody just remember what power we have when we say we are from Wikipedia. Everybody knows Wikipedia, and are honored to have there images on Wikipedia. (I just said thank you to 500 Flickr users, so I know what I am talking about) Bryan

I think all it takes is one person writing the foundation that they are breaching their copyright, as they do not follow the GFDL-license, under which the person has given his/her texts free? And if Wikipedia is not following GFDL, GFDL doesnt apply to those articles either i guess. In thery, IANAL, it might even be that the foundation has to remove all that persons contributions? :S Eia 2007/1/28, Jeffrey V. Merkey <jmerkey(a)wolfmountaingroup.com>om>:

effe iets anders wrote: I've actually thought about doing a sort of mass-mailing to several prominent artists featured on Wikipedia, saying in effect "do you know that your art work is being used here without permission" and giving an address of the WMF to get it removed. I think that might get a reaction, but it may not be in the best interest of the WMF to go that far. It does illustrate at least an avenue to force this issue. For myself, I would rather that the concept of fair use be legitmately reviewed, and that applications of fair use that might be objectionable would be removed well before there is any problem that might surface instead. Unfortunately this is something that may have to come from "the top" on a WMF level and be forced down onto the project. The only ones who are interested right now in setting fair use policy are those who want to see it extended even further rather than those who want to scale it back. -- Robert Scott Horning

Jeffrey V. Merkey wrote: I am being told that the one and only way that these images are going to possibly be removed from Wikipedia is through a WP:OFFICE action. I think that is one of the most ridiculous sentiments ever made. For example, see the "disclaimer" that was thrown onto this image: http://en.wikipedia.org/wiki/Image%3AHand_with_Reflecting_Sphere.jpg It basically says that if M.C. Escher objects (BTW, he is dead.... so I guess that is his estate here), then he should contact the "Designated agent" of Wikipedia (aka Brad) in order to remove this image. IMHO, this disclaimer by itself is almost proof by itself that this particular image is a copyright violation, and I would argue that the other 40,000 images also in [[en:w:Category:Fair use images of art]] also are very likly to be copyright violations. That is not a trivial number of images to be removing. I don't know directly the liability to either Wikipedia as a project or the WMF as the "sponsoring institution", but I would strongly suggest that fair use has gone way too far here. This is also (at least to me) a very new philosophy that Wikimedia project might be hosting content that would not necessarily be reproduceable under the GFDL as the lowest common denominator. That essentially this is content that dead-ends just on one project, such as Wikipedia, and can't be used anywhere else. I'm not talking about WMF logos (which is a totally different issue), but for general content that is project related. And the group that espouses this viewpoint is willing to wheel war over this issue as well, so simply deleting the content is not going to be sufficient here. They are already making changing the Wikipedia fair use policy to permit this sort of philosophy, and I'm just a rather lowly ordinary user with no major status on Wikipedia. That the foundation may have a legal liability issue here is why I'm raising this on a foundation level at all, and because I believe that this is an issue that will affect all Wikimedia projects in the not so distant future. With the current philosophies regarding fair use on Wikipedia, I am trying very hard to find what is considered an infringing image that is a copyright violation. I can't think of a single one. Every image I could possibly imagine has some sort of application under current fair use guidelines to be included in at least some sort of Wikipedia article, and that once there, is often and frequently copied to yet other articles where the usage is much more dubious. The 400 x 600 pixel image I mentioned above is considered "low resolution" too. -- Robert Scott Horning

On 28/01/07, geni <geniice(a)gmail.com> wrote: Yeah, there's a place for fair use, and that's probably where it would be. Maybe in a general article on Escher, maybe not. For the actual *likelihood* of a legal apocalypse for the Foundation - my favoured example again, [[Xenu]] - the important IMO) fair-use image are owned by the Church of Scientology, who are really quite notable for now far they will take legal action to protect what they see as their interests (see [[Scientology and the legal system]] - SCO is *nothing* by comparison) but literally haven't uttered a peep about the CoS-owned images on [[Xenu]] in two years, while CoS staff editors participate extensively in the Scientology-related articles on Wikipedia. Because the educational fair use *in the context of the article* is really not reasonably contestable under US law. And nor have they approached any mirror sites that I know of (and I'm hooked in enough to the Scientology critic community that think I'd know). (And the image of the word "Xenu" in L. Ron Hubbard's handwriting has been widely distributed in the UK, and worldwide, on Roland Rashleigh-Berry's 'Xenu leaflet' since 1997. I've handed it to CoS staff myself. Not a peep of a legal threat over it.) IMO, every fair use image on en:wp should have a {{fairusein}} template and only be used in articles carrying that template with an article and a rationale. I'm a big fan of fair use, but I also think it's taken *way* too far in practice. And I think it would be a bad thing for the encyclopedia for fair use to be abused to the point where the Foundation says "no more." Assume good faith! But by no means let doing so stop us from winding fair use on en:wp back to something considerably more hardarsed. I know you're pretty knowledgeable about the state of fair use images on en:wp, so it's very reassuring that it's not *too* bad. Not unfixably so, anyway. - d.

Ray Saintonge wrote: The point I was trying to make here is that the only option that our "desgnated agent" could do here (aka Brad, if he were contacted by the Escher Foundation to remove this content) is to invoke WP:OFFICE and have the content removed. I see no reason that such a disclaimer needs to be here in this first place, and am arguing that this is strongly suggesting that perhaps even having this image on Wikipedia is illegal. I'm sure that somebody thought to add the disclaimer as a form of CYA (cover your assetts), but if you are in doubt in the first place wouldn't it simply be better to remove the image completely? -- Robert Scott Horning

Jeffrey V. Merkey wrote: When the actual owner of the photograph complains that certasinly boost the issue up a notch, and we should definitely be ready to pay attention to his requests. I did not see that as a factor in Robert's comments. If the person objecting has no connection to the pictures, there is no reason for us to give too much weight to that opinion. Ec

My issue is that I don't think people should be using bots to remove images with questionable status.

On 1/31/07, geni <geniice(a)gmail.com> wrote: Deletion of the actual image is done manually -- removal of the image from articles is done by a bot.

On 1/31/07, The Cunctator <cunctator(a)gmail.com> wrote: Really? Cool. http://en.wikipedia.org/wiki/Category:Works_of_the_Philippines_government Needs sorting out (deleting). Some of the stuff there could probably be tagged fair use but the rest needs to be orphaned. Before you do that would you mind orphaning: http://en.wikipedia.org/wiki/Image:Indusvalleyexcavation.jpg http://en.wikipedia.org/wiki/Image:Sistine.chapel.entire.500pix.jpg http://en.wikipedia.org/wiki/Image:LowerFortGarry.jpg Because that would allow us to clean out Category: Non-commercial use only images once and for all. -- geni

On 1/31/07, The Cunctator <cunctator(a)gmail.com> wrote: Not really relevant. NC images need to be removed and there is no significant opposition to doing so. It would appear that you are afraid of putting your edits where your mouth is. You think images should be manually orphaned. Lets see you do it. -- geni

On 1/31/07, The Cunctator <cunctator(a)gmail.com> wrote: Already done it. why do you think the main NC cat is so empty? Or you could go through my contribs and see how often "rm deleted image" appears. Come on I've given you a chance to lead by example or do you have so little real faith in your beliefs that a few hundred edits is too much? Perhaps it is I mean it took me the best part of a week to sort the NC category so just lets just limit it to the 5 images left in the Non-commercial use only images category and the first page of Works of the Philippines government category. -- geni

The Cunctator wrote: The bot comments out images, with an explanation. Anyone who edits the page can see that the image was there, what its caption was, and why it was removed. -Gurch

Can the detailed discussion about what should or should not be done by bots on en.WP take place somewhere else, where it would be on-topic. BirgitteSB --- The Cunctator <cunctator(a)gmail.com> wrote: http://lists.wikimedia.org/mailman/listinfo/foundation-l ____________________________________________________________________________________ Never Miss an Email Stay connected with Yahoo! Mail on your mobile. Get started! http://mobile.yahoo.com/services?promote=mail

Moderated. Ant Volunteer Services wrote:

On 2/2/07, Ray Saintonge <saintonge(a)telus.net> wrote: The problem with that is the backlogs. other than saying beyond a certian date it is not posible to say when an image will be deleted. -- geni

teun spaans wrote: Encyclopedias sometimes put photo credits on a page that is not necessarily adjacent to the article, but on some sort of "credits" page that is listed elsewhere. Encyclopedia Brittanica used to acknowledge authorship of its artlces with just the author's initials, and it was only in the first volume that even listed the names of the authors. At least this is something to look at before jumping to too much of a conclusion. Also, even if no source was explicitly mentioned, that reference is not strictly necessary for a photographic license. I know this is a tough thing to prove, but one really good example is all I'm asking for here. The rationale for using such images is very weak if you can't find a clear example in other published media, proving that this is a bleeding edge copyright situation instead of common publishing industry practice. While not perfect for a legal defense, it does help if you can show that others who might be peers have done this and nobody has cared. -- Robert Scott Horning

Robert Scott Horning wrote: Sure, here's some: A 1932 Pablo Picasso painting: http://archives.cnn.com/2000/STYLE/arts/05/10/picasso.auction.ap/ (credited as "AP Photo", though it's doubtful the AP owns the copyright) A 1939 Pablo Picasso painting: http://www.cnn.com/SPECIALS/2000/year.in.review/story/arts/ (credited as "CNN", again doubtful) Sometimes it's unclear: A 1953 Mark Rothko painting: http://archives.cnn.com/2000/STYLE/arts/11/15/sothebys.auction.reut/ (credited as "Courtesy Sotheby's", but it's unclear whether the "courtesy" means they were given a copyright license, or, more likely, are using it under an {{en:promotional}} type fair-use claim) My general impression is that fair-use images are quite common in journalism. I don't know about encyclopedias. They are fairly common in educational books---film-studies books frequently make fair use of low-resolution still shots from films. -Mark

teun spaans wrote: I'm talking about the image credits, written vertically along the right-hand side of the image. Of course they don't explicitly say they use fair use, because nobody would waste space saying that---fair use is an affirmative defense if you're sued, not something you have to declare ahead of time. Nevertheless it's quite clear from context that many journalistic photo uses are {{en:promotional}} fair use. -Mark