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@gmail.com
I beg you all, please consider that a considerable part of the contributors to Wikimedia projects (and possibly a considerable part of people willing to reuse commercially its contents) cannot embrace fair use, simply because fair use does not exist in their legislation.
And once again, if the point is to stick to the GFDL, fair use contents is not compliant.
If the ponit is "articles look better with... whatever", some go for fair use, some others go for NC images. And even if I don't want neither, I have to say that fair use is something decided by the user (possibly wrongly), NC is something decided by the author (thus safer from the point of view of a legal action).
Roberto (Snowdog)
------------------------------------------------------ Passa a Infostrada. ADSL e Telefono senza limiti e senza canone Telecom http://click.libero.it/infostrada30gen07
rfrangi@libero.it wrote:
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.
I beg you all, please consider that a considerable part of the contributors to Wikimedia projects (and possibly a considerable part of people willing to reuse commercially its contents) cannot embrace fair use, simply because fair use does not exist in their legislation.
And once again, if the point is to stick to the GFDL, fair use contents is not compliant.
If the ponit is "articles look better with... whatever", some go for fair use, some others go for NC images. And even if I don't want neither, I have to say that fair use is something decided by the user (possibly wrongly), NC is something decided by the author (thus safer from the point of view of a legal action).
Roberto (Snowdog)
One of the problems with fair use for images is that they don't normally follow the traditions and practices of fair-use textual quotations. This is also why the doctrines divirge so much from one country to the next for these items.
Still, I would like to point out that while fair-use doctrine may only be an American concept (largely), similar concepts do exist in virtually all other countries, even if to a significantly lesser extent. There may be some images that are not strictly available for any purpose under the GFDL, but may under certain circumstances be legitimately used in GFDL'd content. Trying to draw the line between what is acceptable content and stuff that simply needs to be deleted is where the problem comes in. Erring on the side of caution and exclude fair-use content altogether may be one solution on some projects where fair use content isn't so critical.
What I find amazing is the philosophy of some en.wikipedia users that are now pushing to allow content on Wikipedia even if it invalidates the GFDL when it is included in a Wikipedia article. It is this expansion of the range of images being permitted that surprises me, where the only limit to allowed content is only what is strictly legal in the USA, and trying to take fair use to the ultimate limits in U.S. Common Law and asserting educational and non-profit justifications for its inclusion.
I believe there is some middle ground that can be found between this free-for-all philosohpy and complete exclusion of fair use that would be easy to understand, work in nearly every country with significant numbers of Wikimedia users, and be simple enough to see a policy that is just a couple of paragraphs long about the topic. Perhaps I'm overly optimistic here.
BTW, I love the it.wikipedia's attitude on this topic, which does a pretty good job of finding this middle ground.
2007/1/30, Robert Scott Horning robert_horning@netzero.net:
One of the problems with fair use for images is that they don't normally follow the traditions and practices of fair-use textual quotations. This is also why the doctrines divirge so much from one country to the next for these items.
Still, I would like to point out that while fair-use doctrine may only be an American concept (largely), similar concepts do exist in virtually all other countries, even if to a significantly lesser extent. There may be some images that are not strictly available for any purpose under the GFDL, but may under certain circumstances be legitimately used in GFDL'd content. Trying to draw the line between what is acceptable content and stuff that simply needs to be deleted is where the problem comes in. Erring on the side of caution and exclude fair-use content altogether may be one solution on some projects where fair use content isn't so critical.
What I find amazing is the philosophy of some en.wikipedia users that are now pushing to allow content on Wikipedia even if it invalidates the GFDL when it is included in a Wikipedia article. It is this expansion of the range of images being permitted that surprises me, where the only limit to allowed content is only what is strictly legal in the USA, and trying to take fair use to the ultimate limits in U.S. Common Law and asserting educational and non-profit justifications for its inclusion.
I believe there is some middle ground that can be found between this free-for-all philosohpy and complete exclusion of fair use that would be easy to understand, work in nearly every country with significant numbers of Wikimedia users, and be simple enough to see a policy that is just a couple of paragraphs long about the topic. Perhaps I'm overly optimistic here.
In my opinion the point of departure of such a 'middle ground' should be that the inclusion of the fair use image should not hinder the publication possibilities of the article as a whole, that is, downstream users should be able to take the article including the picture, and publish it, under the GFDL, commercially, with modifications. Perhaps I should restrict that by adding that their modifications do not change significantly the way the image is used - taking a Wikipedia article and dropping everything but the picture, then publishing that under GFDL as a derived work from the Wikipedia article is not the kind of thing that should necessarily be possible, but taking the single paragraph to which the picture is most connected, making some minor changes to the text and then putting it and the image in a different GFDL document and publishing that either commercially or non-commercially should be.
Andre Engels wrote:
In my opinion the point of departure of such a 'middle ground' should be that the inclusion of the fair use image should not hinder the publication possibilities of the article as a whole, that is, downstream users should be able to take the article including the picture, and publish it, under the GFDL, commercially, with modifications. Perhaps I should restrict that by adding that their modifications do not change significantly the way the image is used - taking a Wikipedia article and dropping everything but the picture, then publishing that under GFDL as a derived work from the Wikipedia article is not the kind of thing that should necessarily be possible, but taking the single paragraph to which the picture is most connected, making some minor changes to the text and then putting it and the image in a different GFDL document and publishing that either commercially or non-commercially should be.
Your premise for a middle ground is reasonable. The fact that in the course of your writing the above you should think of a possible difficulty before finishing your paragraph only shows that it is not a simple matter. We think of derivative work as something which retains at least some characteristice of the source work, but if it no longer includes any of the Wkitext that accompanied the fair use picture is that still a derivative of the Wikipedia article. Our fair use depends on context. If someone downstream uses a Wikipedia article that includes a fair use image he needs to also include enough context, but there is no way to do that.
I would be curious to here if there has even been a single legal case dealing with the transitivity of fair use.
Ec
2007/1/31, Ray Saintonge saintonge@telus.net:
I would be curious to here if there has even been a single legal case dealing with the transitivity of fair use.
Probably not, because our situation is one that is very uncommon. Normally people grant others rights to their copyrighted works not in such a general manner - "you may put this-and-that chapter from my book unchanged/changed in the way that you showed me in this-and-that book of yours", not "you may take my book or any derived work of it and do with it whatever you like".
Robert Scott Horning wrote:
One of the problems with fair use for images is that they don't normally follow the traditions and practices of fair-use textual quotations. This is also why the doctrines divirge so much from one country to the next for these items.
Still, I would like to point out that while fair-use doctrine may only be an American concept (largely), similar concepts do exist in virtually all other countries, even if to a significantly lesser extent. There may be some images that are not strictly available for any purpose under the GFDL, but may under certain circumstances be legitimately used in GFDL'd content. Trying to draw the line between what is acceptable content and stuff that simply needs to be deleted is where the problem comes in. Erring on the side of caution and exclude fair-use content altogether may be one solution on some projects where fair use content isn't so critical.
That's sensible. It's just not as simple as some people like to believe.
What I find amazing is the philosophy of some en.wikipedia users that are now pushing to allow content on Wikipedia even if it invalidates the GFDL when it is included in a Wikipedia article. It is this expansion of the range of images being permitted that surprises me, where the only limit to allowed content is only what is strictly legal in the USA, and trying to take fair use to the ultimate limits in U.S. Common Law and asserting educational and non-profit justifications for its inclusion.
I've always been clear in saying that I strongly support fair use, but there are times when I wish we did not constantly have to watch our backs out of concern for what some of our more idiotic colleagues are doing.
I believe there is some middle ground that can be found between this free-for-all philosohpy and complete exclusion of fair use that would be easy to understand, work in nearly every country with significant numbers of Wikimedia users, and be simple enough to see a policy that is just a couple of paragraphs long about the topic. Perhaps I'm overly optimistic here.
The middle ground, whereever it may be, is a good place. Keeping it to two paragraphs probably is optimistic. :-)
Ec
On 1/30/07, Ray Saintonge saintonge@telus.net wrote:
I've always been clear in saying that I strongly support fair use, but there are times when I wish we did not constantly have to watch our backs out of concern for what some of our more idiotic colleagues are doing.
A-men.
rfrangi@libero.it wrote:
I beg you all, please consider that a considerable part of the contributors to Wikimedia projects (and possibly a considerable part of people willing to reuse commercially its contents) cannot embrace fair use, simply because fair use does not exist in their legislation.
And once again, if the point is to stick to the GFDL, fair use contents is not compliant.
If the ponit is "articles look better with... whatever", some go for fair use, some others go for NC images. And even if I don't want neither, I have to say that fair use is something decided by the user (possibly wrongly), NC is something decided by the author (thus safer from the point of view of a legal action).
Roberto (Snowdog)
Just to make an example of how fair use is not allowed in Italy, a couple of weeks ago an Italian amateur website about contemporary art was sued and forced to pay about 5.000 € because it displayed a few photographs of work of arts. The website is non-profit and was using the images to illustrate what it was talking about, pretty much in the same way that Wikipedia uses fair use images. I guess this would easily qualify as fair use in the US, but this is not the case in Italy. The article (in Italian, I don't know if English-language press had talked about it) is at http://punto-informatico.it/p.aspx?id=1858783&r=PI
Marco (Cruccone)
Does this imply that an Italian chapter could be sued for fair use images on the english wiki? Does this mean that the english wiki could potentially be blocked in Italy if "fair use" images are of italian origin?
On 1/30/07, Marco Chiesa chiesa.marco@gmail.com wrote:
rfrangi@libero.it wrote:
I beg you all, please consider that a considerable part of the
contributors to Wikimedia projects (and possibly a considerable part of people willing to reuse commercially its contents) cannot embrace fair use, simply because fair use does not exist in their legislation.
And once again, if the point is to stick to the GFDL, fair use contents
is not compliant.
If the ponit is "articles look better with... whatever", some go for fair
use, some others go for NC images. And even if I don't want neither, I have to say that fair use is something decided by the user (possibly wrongly), NC is something decided by the author (thus safer from the point of view of a legal action).
Roberto (Snowdog)
Just to make an example of how fair use is not allowed in Italy, a couple of weeks ago an Italian amateur website about contemporary art was sued and forced to pay about 5.000 € because it displayed a few photographs of work of arts. The website is non-profit and was using the images to illustrate what it was talking about, pretty much in the same way that Wikipedia uses fair use images. I guess this would easily qualify as fair use in the US, but this is not the case in Italy. The article (in Italian, I don't know if English-language press had talked about it) is at http://punto-informatico.it/p.aspx?id=1858783&r=PI
Marco (Cruccone)
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On 30/01/07, teun spaans teun.spaans@gmail.com wrote:
Does this imply that an Italian chapter could be sued for fair use images on the english wiki?
It has been an absolute principle that Chapters Are Not Responsible In any Way For The Projects. They're associated bodies, but there should never be any implication they're publishers.
I mean, anyone can be sued for anything by anyone, but hopefully it would be a pretty fast dismissal and order to pay costs for a frivolous suit as soon as a court looked at the actual facts :-)
Does this mean that the english wiki could potentially be blocked in Italy if "fair use" images are of italian origin?
Depends; are the Italian courts in favour of issuing gagging orders for something as relatively trivial as copyright? I find it very implausible...
Andrew Gray schreef:
On 30/01/07, teun spaans teun.spaans@gmail.com wrote:
Does this imply that an Italian chapter could be sued for fair use images on the english wiki?
It has been an absolute principle that Chapters Are Not Responsible In any Way For The Projects. They're associated bodies, but there should never be any implication they're publishers.
Hoi, It is OUR principle that this is the case. It does not mean that a judge will see it that way. In Germany we have already had the German chapter in court because of content on the German language Wikipedia.
I mean, anyone can be sued for anything by anyone, but hopefully it would be a pretty fast dismissal and order to pay costs for a frivolous suit as soon as a court looked at the actual facts :-)
Does this mean that the english wiki could potentially be blocked in Italy if "fair use" images are of italian origin?
Depends; are the Italian courts in favour of issuing gagging orders for something as relatively trivial as copyright? I find it very implausible...
Again, it is for the judge to decide. What is "relatively trivial" is not necessarily seen in the same light by a judge. Thanks, GerardM
Gerard Meijssen wrote:
Andrew Gray schreef:
On 30/01/07, teun spaans teun.spaans@gmail.com wrote:
Does this imply that an Italian chapter could be sued for fair use images on the english wiki?
It has been an absolute principle that Chapters Are Not Responsible In any Way For The Projects. They're associated bodies, but there should never be any implication they're publishers.
Hoi, It is OUR principle that this is the case. It does not mean that a judge will see it that way. In Germany we have already had the German chapter in court because of content on the German language Wikipedia.
That had nothing to do with copyright, and we won anyways.
I mean, anyone can be sued for anything by anyone, but hopefully it would be a pretty fast dismissal and order to pay costs for a frivolous suit as soon as a court looked at the actual facts :-)
Nothing stops anybody from suing anybody else about anything. Avoiding all law suits is a form of paranoia. Naturally when this happens we want to be the winners, and even winning lawsuits need to be looked at in terms of cost-benefit analysis.
Does this mean that the english wiki could potentially be blocked in Italy if "fair use" images are of italian origin?
Depends; are the Italian courts in favour of issuing gagging orders for something as relatively trivial as copyright? I find it very implausible...
Again, it is for the judge to decide. What is "relatively trivial" is not necessarily seen in the same light by a judge.
Anything's possible.
Ec
Ray Saintonge schreef:
Gerard Meijssen wrote:
Andrew Gray schreef:
On 30/01/07, teun spaans teun.spaans@gmail.com wrote:
Does this imply that an Italian chapter could be sued for fair use images on the english wiki?
It has been an absolute principle that Chapters Are Not Responsible In any Way For The Projects. They're associated bodies, but there should never be any implication they're publishers.
Hoi, It is OUR principle that this is the case. It does not mean that a judge will see it that way. In Germany we have already had the German chapter in court because of content on the German language Wikipedia.
That had nothing to do with copyright, and we won anyways.
Hoi, That it did have anything to do with copyright nor that we won has anything to do with the fact that the German chapter had to be in court because of the *content *of the German Wikipedia. It destroys the notion that our absolute principle is respected by the laws of the countries we have a chapter in.
Thanks, GerardM
Marco Chiesa wrote:
rfrangi@libero.it wrote:
Just to make an example of how fair use is not allowed in Italy, a couple of weeks ago an Italian amateur website about contemporary art was sued and forced to pay about 5.000 € because it displayed a few photographs of work of arts. The website is non-profit and was using the images to illustrate what it was talking about, pretty much in the same way that Wikipedia uses fair use images. I guess this would easily qualify as fair use in the US, but this is not the case in Italy. The article (in Italian, I don't know if English-language press had talked about it) is at http://punto-informatico.it/p.aspx?id=1858783&r=PI
Marco (Cruccone)
I should note that fair use representations of art works are one of the areas that I would like to see removed from en.wikipedia, but making such a request seemed to landed with such overwhelming support that I didn't even get a single reply on the topic until I posted a request for comments about the idea on the fair-use talk page (after seeking comments on the Copyrights talk page and the Village Pump first). And all I seemed to have recieved on the fair-use talk page was ad hominum attacks suggesting that I was clueless about copyright and fair use, and didn't know what I was talking about to even suggest there might be a copyright infringement issue here on Wikipedia for any use of the images as they are currently being displayed.
I see no reason why this same line of reasoning that you mention here isn't going to be used with American website owners, especially with the current trend of the SCOTUS to be using legal opinions of foriegn courts in their briefs, and the homoginzation of IP law around the world.
On 1/30/07, rfrangi@libero.it rfrangi@libero.it wrote:
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@gmail.com
I beg you all, please consider that a considerable part of the contributors to Wikimedia projects (and possibly a considerable part of people willing to reuse commercially its contents) cannot embrace fair use, simply because fair use does not exist in their legislation.
And once again, if the point is to stick to the GFDL, fair use contents is not compliant.
If the ponit is "articles look better with... whatever", some go for fair use, some others go for NC images. And even if I don't want neither, I have to say that fair use is something decided by the user (possibly wrongly), NC is something decided by the author (thus safer from the point of view of a legal action).
One of the terrible problems (not with Wikipedia specifically but the Internet in general) is that cross-border copyright issues remain rather muddled.
Imagine for a moment a Wikipedia in which all content is hosted in the US.
If a US editor uploads an image which clearly falls under US fair use doctorine (say a PR photo, for which the owner could not reasonably survive a motion to dismiss if they sued WP for infringement in the US), US law protects the editor, Wikimedia Foundation, and presumably readers worldwide.
If a German editor uploads a photo from a German company PR site (I am informed Germany has no Fair Use, but am not an expert here; this is a hypothetical example), to a German language Wikipedia hosted in the US, it's not clear that German law has any effect on the servers in the US or the Wikimedia Foundation. US courts have generally refused to allow foreign copyright law to apply to web content in the US. The German editor might be at risk for a suit, however.
The situation is more complex if we have servers hosted somewhere which doesn't recognize the right. Technically, someone in that locale could possibly sue using their rules over content on the en.wikipedia site, depending on local law.
This would seem to indicate that we're in danger just by having foreign hosting.
The paranoid response to this would be to kill off all fair use immediately, and/or pull down all foreign colos (France, Netherlands, South Korea).
The more reasonable response is that this issue needs to get settled out in international law, and that we should keep donig what we're doing until that happens. We are the least likely target for someone seeking to clarify that law via lawsuit... WMF has no money to speak of, in traditional terms, and its "intellectual property" is all GFDL over which ownership is sort of a nebulous hold.
It's perfectly reasonable to assert that what we're doing is the right thing to do, from an IP rights standpoint, for all concerned, and that it's likely that the global regime that works out will allow what we're doing.
If we were being super-duper-paranoid, we'd have to require not just a GFDL disclaimer on each page, but formal verified identification of each person making contributions and their right to contribute that content. Even in the US, there are employers that assert that any work "during working hours" is work for hire owned by the company, even discussions on bulletin boards or Wikipedia edits. Theoretically a large fraction of total edits might be of questionable original copyright status (if editor X says it's GFDL released, but his workplace has a legal ownership restriction, then editor X may not legally be in a position to release the work under the GFDL...). This hasn't been an issue in open content, but has been litigated in various open source software related lawsuits.
Our working assumption there is "so what?", and that nobody's going to come after the foundation for any of the IP involved, again because there's no money in it and the horrible publicity which would ensue.
The same approach to Fair Use is called for.
On 31/01/07, George Herbert george.herbert@gmail.com wrote:
Our working assumption there is "so what?", and that nobody's going to come after the foundation for any of the IP involved, again because there's no money in it and the horrible publicity which would ensue.
It should be pointed out that our powers of horrible publicity are pretty strong, as long as we try very hard not to use them. c.f. the Microsoft-Wikipedia press from last week - if (for some stupid reason) we'd *wanted* to keep that in the media, it would still be going now. Just in time for the Vista launch!
If we're ever attacked badly enough, we could really make the attacker deeply regret trying.
- d.
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