On 2/9/07, Delphine Ménard notafishz@gmail.com wrote:

Tell me anything but don't tell me that fair-use can be used for this that and the rest and that it's not so bad, after all. (at least, this is what I repreatedly hear, this manichean speech that says ND/NC and permission are EVIL, fair use is LESS EVIL). Don't even hint at it.

I don't really like to use the word "evil." What I want to communicate is that the liberation of culture is a process, not a state. Within that process, it may be acceptable to make temporary concessions to reality -- until we have changed that reality.

The questions we should ask, I think, are the following: 1) How can we make the division between free and non-free clearer? 2) How can we encourage the liberation of non-free works? 3) Are there works which we can never hope to liberate, at least not under the existing paradigm of freedom? 4) What concessions can and should we make for different language projects?

Here are some thoughts on each of these questions:

1) Making the division clearer. One way to do so would be to caption every image that is used under an exemption doctrine with a notice to that effect, e.g. "Copyright (C) XYZ. Used under fair use. [[About fair use in Wikipedia]]" That latter link could explain our policies, our desire for replacements, and the general free culture philosophy underlying this framework.

Another method is to completely phase out local image uploads for anything _but_ materials used under an exemption doctrine policy (EDP). This is what we have done on English Wikinews from the start and one the Polish Wikinews for some time. The upload link says "Upload fair use media"; another link says "Upload free media" and points to Commons. This makes editors more aware of the difference, and makes it easier to patrol fair use uploads. Right now, the perception is often "Commons is for stuff I want to use in other projects," which is of course only half the truth.

For new projects, it may also make sense to disable local uploads by default, until the project has established an EDP. We did this on Wikinews for a while, though I think the process has fallen behind a bit. This would ensure that the initial community is required to "grok" the division before it can start using non-free materials.

Some liberation is a matter of government policy. It seems still absurd to me that anything funded with taxpayer money should be copyrighted at all. While even the US policy on this could be more liberal, it is internationally among the most progressive. We non-Americans have to admit in this one instance: our governments suck. Where they do make government materials available, it is usually under some restrictions -- non-commercial, educational, etc. This is a policy we need to work to change. Perhaps the chapters can play a role in this process.

Let us also not forget the issue of copyright terms. Imagine the fringe role fair use would play if copyright lasted 14 years -- thousands and thousands of current fair use materials would be in the public domain. The impact on global culture and knowledge distribution would be magnitudes greater still; it would be the most significant cultural liberation in the history of humanity. This is by no means an impossible goal. It is simply a political decision we need to advocate -- together with the rest of the free culture movement.

2) Liberation of non-free works. For many pictures, liberating them will be a matter of paying a certain amount to the copyright holder. So perhaps what is needed is a Content Liberation Group, either a point of contact within WMF, or a separate non-profit which seeks to raise funds to free existing works. I would favor the second option, as it could then be generalized to non-free software, and other works which are not as relevant to us.

Such a CLG could also systematically contact copyright holders of works which are no longer financially relevant. It could develop tools that make this process efficient and scalable. As Board member, I would be in favor of the WMF bootstrapping such a thing, even if it becomes a separate organization.

3) The permanently non-free. Here I'm not referring to Mickey Mouse. Mickey is non-free, but it could theoretically be bought, or its copyright could expire (it would have if not for Disney's purchase of politicians to prevent it from happening). One example I can think of are identifying images, i.e. logos, coats of arms, seals, and so on. There is often a legitimate desire to prevent misuse of these images, and copyright and trademark law can help to prevent that. Moreover, there is often a strong commercial _incentive_ to misuse them: many of them are highly valuable.

Even Wikimedia does not put its logos under an existing free license. I don't like the Debian approach of using two logos much because it tends to lead to either confusion or dominance of one over the other (who even knows the non-free Debian logo?). And this is one instance where there has been infighting within the free culture movement -- Debian shouting at Mozilla and vice versa. A Firefox fork named Iceweasel. Silliness.

I think we may have to sit down with the CC folks, the FSF, Debian, and other stakeholders and try to develop an "Identifying Works License" or something like that, a license which grants certain liberties, as long as the use identifies only the desired entity and _nothing else_. It might permit modifications if they used only for commentary and nothing else, and so on. It might even have to make explicit reference to commercial vs. non-commercial use.

In other words, I think in this single instance -- works which serve the purpose of identification -- the definition of freedom may need to be adjusted. If we can come up with something that is significantly more free than standard copyright, but still protects the interests of organizations which would use such a license, then we can start evangelizing that others should make use of it, too. Right now a strongly negative attitude against copyrighted logos seems a bit hypocritical.

4) Different language projects. This is a tricky legal problem, and the Italian Wikipedia is one example. First of all, only to point out the obvious, a language is not inherently tied to a country. But languages are of course strongly correlated with geography, and as such, their use typically falls predominantly within certain national borders (Esperanto is a nice exception).

Legal caution and protection of our users suggests respecting the laws where a language is predominantly spoken. As Gregory has pointed out, we will not do so if these laws are utterly unreasonable. In those cases, we can fall back to US law and internationally dominant legal standards. Outside copyright, an exception are censorship laws.

Therefore, the development of Exemption Doctrine Policies must always be the result of a discussion between WMF and a language community, with the involvement of chapters where they exist. I think we should try to streamline that process -- one of many tasks we should discuss with our general counsel.

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I'd like to hear how others would answer these questions. That Wikimedia is a free culture organization, however, is neither negotiable nor reversible. Therefore, as long as we accept some non-free content as a matter of cultural transition, I do believe a strong and visible division between the two is essential, as is thoughtful discourse about systematically transitioning from one to the other.

But most of all, I think we need to focus on the positive message, not the rules of exclusion. That message is: We are here to transform civilization, with free knowledge, free software, free science, free art -- free culture. People should never feel that they are part of this because these are the rules we set. If that is what we communicate, then we have failed to share our own enthusiasm and love for this fantastic idea. As important as policy is, let's never stop speaking about freedom.