Gerard writes:
Hoi,
When I read: "Wikisource content in the French language targets the French public, and therefore, under French conflict of laws principles, the copyright law of France applies to this content." I do read the French public. Wikisource does not target the French public per se.
I agree with you about this. Unfortunately, that turns out to be an inadequate argument when it comes to justifying noncompliance with a takedown notice.
We consulted with French counsel on the question of compliance, and neither they nor we believed there was a strong probability that French court would invalidate the takedown notice on the grounds that Wikisource does not target the French public in particular.
--Mike
Hoi, Thanks for a nice and adequate response. GerardM
On 3 June 2010 00:04, Mike Godwin mnemonic@gmail.com wrote:
Gerard writes:
Hoi,
When I read: "Wikisource content in the French language targets the
French
public, and therefore, under French conflict of laws principles, the copyright law of France applies to this content." I do read the French public. Wikisource does not target the French public per se.
I agree with you about this. Unfortunately, that turns out to be an inadequate argument when it comes to justifying noncompliance with a takedown notice.
We consulted with French counsel on the question of compliance, and neither they nor we believed there was a strong probability that French court would invalidate the takedown notice on the grounds that Wikisource does not target the French public in particular.
--Mike _______________________________________________ foundation-l mailing list foundation-l@lists.wikimedia.org Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
On Wed, Jun 2, 2010 at 3:04 PM, Mike Godwin mnemonic@gmail.com wrote:
Gerard writes:
Hoi,
When I read: "Wikisource content in the French language targets the French public, and therefore, under French conflict of laws principles, the copyright law of France applies to this content." I do read the French public. Wikisource does not target the French public per se.
I agree with you about this. Unfortunately, that turns out to be an inadequate argument when it comes to justifying noncompliance with a takedown notice.
We consulted with French counsel on the question of compliance, and neither they nor we believed there was a strong probability that French court would invalidate the takedown notice on the grounds that Wikisource does not target the French public in particular.
The appropriate response to this might be a Quebec Wikisource project (or, pick another French-speaking location, with a very non-French copyright policy which is more friendly to us in this circumstance).
-----BEGIN PGP SIGNED MESSAGE----- Hash: SHA1
On 37-01--10 03:59 PM, George Herbert wrote:
The appropriate response to this might be a Quebec Wikisource project (or, pick another French-speaking location, with a very non-French copyright policy which is more friendly to us in this circumstance).
Wikilivres does exist: http://www.wikilivres.info/wiki/Main_Page
"The purpose of this site is to host texts and images in the public domain, or under a free licence. This site is hosted in Canada and therefore it follows the Canadian copyright law."
Perhaps this is suitable?
- -Mike
On Thu, Jun 3, 2010 at 8:49 AM, George Herbert george.herbert@gmail.com wrote:
The appropriate response to this might be a Quebec Wikisource project (or, pick another French-speaking location, with a very non-French copyright policy which is more friendly to us in this circumstance).
The hope was that the Wikimedia Canada chapter would form soon, for this very reason.
http://meta.wikimedia.org/wiki/Talk:Wikimedia_Canada/Wikisource_Canada
-- John Vandenberg
Mike Godwin wrote:
Gerard writes:
Hoi,
When I read: "Wikisource content in the French language targets the French public, and therefore, under French conflict of laws principles, the copyright law of France applies to this content." I do read the French public. Wikisource does not target the French public per se.
I agree with you about this. Unfortunately, that turns out to be an inadequate argument when it comes to justifying noncompliance with a takedown notice.
We consulted with French counsel on the question of compliance, and neither they nor we believed there was a strong probability that French court would invalidate the takedown notice on the grounds that Wikisource does not target the French public in particular.
It seems then that there is a question of jurisdiction involved. It has been my long held understanding that the Wikimedia projects have operated under the laws of the United States, and that WMF has been consistent in its view that chapters are not responsible for the contents of the projects. Why then do we now compromise this by relying on what the French courts might say if the takedown notices are issued under US law?
Counter-notices would also be produced under US law. There is no requirement that the person who files a counter-notice be the same person who posted the original material. The original takedown notice needs to be a public document in order to enable any person considering a counter-notice to form the required good faith belief that the material was taken down because of a mistake or misidentification, or to challenge whether the takedown notice was compliant with all the requirements of such a notice. Thus I would suggest that the notices are not privileged in the way that other correspondence or discussions would be.
I also needs to be pointed out that several of the authors in question died before 1923, and, unless we are dealing with posthumous works, only France's unique adjustment for the time of the wars would keep them protected there.
In the absence of a reconsideration by the WMF of some of these takedowns I agree that counter-notices.would be a useful approach. To spread the work this could be spread among several people, each electing jurisdiction in a different judicial district. O:-)
Wikilivres is an option that has already been mentioned, and is probably the quickest to implement.
Wikisource.ca could also be used. Eventually it would be transferred to Wikimedia Canada. For now, with that domain being in my possession, it would take only choosing a suitable webhost and some technical assistance before it is up and running.
Ray
On Thu, Jun 3, 2010 at 5:43 AM, Ray Saintonge saintonge@telus.net wrote:
It seems then that there is a question of jurisdiction involved. It has been my long held understanding that the Wikimedia projects have operated under the laws of the United States, and that WMF has been consistent in its view that chapters are not responsible for the contents of the projects. Why then do we now compromise this by relying on what the French courts might say if the takedown notices are issued under US law?
Counter-notices would also be produced under US law. There is no requirement that the person who files a counter-notice be the same person who posted the original material. The original takedown notice needs to be a public document in order to enable any person considering a counter-notice to form the required good faith belief that the material was taken down because of a mistake or misidentification, or to challenge whether the takedown notice was compliant with all the requirements of such a notice. Thus I would suggest that the notices are not privileged in the way that other correspondence or discussions would be.
I also needs to be pointed out that several of the authors in question died before 1923, and, unless we are dealing with posthumous works, only France's unique adjustment for the time of the wars would keep them protected there.
In the absence of a reconsideration by the WMF of some of these takedowns I agree that counter-notices.would be a useful approach. To spread the work this could be spread among several people, each electing jurisdiction in a different judicial district. O:-)
Wikilivres is an option that has already been mentioned, and is probably the quickest to implement.
Wikisource.ca could also be used. Eventually it would be transferred to Wikimedia Canada. For now, with that domain being in my possession, it would take only choosing a suitable webhost and some technical assistance before it is up and running.
Ray
How does this involve Wikimedia chapters? I'm not seeing that. It seems plausible that the assertion of valid copyright in France, at least where the content was originally published in France, should be sufficient to have a takedown demand enforced. The uniqueness of French law doesn't seem to be terribly relevant - we can't ignore the copyrights on French content because the law in France is unusual. At any rate, with treaties and foreign laws and whatnot, this is legitimately an area where non-lawyers (like me) should hesitate to criticize actual experts (like Mike).
Nathan
Nathan wrote:
On Thu, Jun 3, 2010 at 5:43 AM, Ray Saintonge wrote:
It seems then that there is a question of jurisdiction involved. It has been my long held understanding that the Wikimedia projects have operated under the laws of the United States, and that WMF has been consistent in its view that chapters are not responsible for the contents of the projects. Why then do we now compromise this by relying on what the French courts might say if the takedown notices are issued under US law?
Counter-notices would also be produced under US law. There is no requirement that the person who files a counter-notice be the same person who posted the original material. The original takedown notice needs to be a public document in order to enable any person considering a counter-notice to form the required good faith belief that the material was taken down because of a mistake or misidentification, or to challenge whether the takedown notice was compliant with all the requirements of such a notice. Thus I would suggest that the notices are not privileged in the way that other correspondence or discussions would be.
How does this involve Wikimedia chapters? I'm not seeing that.
Chapters become a factor because the unschooled mind does not distinguish between chapters and the Foundation. For the Foundation to rely solely on US law helps to dispel any ambiguities around that
It seems plausible that the assertion of valid copyright in France, at least where the content was originally published in France, should be sufficient to have a takedown demand enforced.
Not at all since it is the US courts that would be given jurisdiction
The uniqueness of French law doesn't seem to be terribly relevant - we can't ignore the copyrights on French content because the law in France is unusual.
The peculiarity at hand is the extension of copyright terms beyond the usual life + 70 to make up for revenues lost by the publishers during the two world wars. The recognition of foreign copyright laws is the subject of treaties, and if the treaty does not extend this special protection to the United States it's not legally enforceable there.
At any rate, with treaties and foreign laws and whatnot, this is legitimately an area where non-lawyers (like me) should hesitate to criticize actual experts (like Mike).
I have never allowed myself the luxury of showing awe and reverence to lawyers, or, for that matter experts of any kind. They are not above criticism..
Mike has said himself that he cannot represent both the Foundation and its individual volunteers. That's fair enough
Ray
I've added a new section on DMCA compliance to both the en.wiki and meta Office actions pages: http://meta.wikimedia.org/wiki/Office_actions http://en.wikipedia.org/wiki/Wikipedia:Office_actions
Please feel free to augment with additional info.
Ryan Kaldari
On 7 June 2010 19:21, Ryan Kaldari rkaldari@wikimedia.org wrote:
I've added a new section on DMCA compliance to both the en.wiki and meta Office actions pages: http://meta.wikimedia.org/wiki/Office_actions http://en.wikipedia.org/wiki/Wikipedia:Office_actions
Please feel free to augment with additional info.
Ryan Kaldari
The claim "The Foundation is required by law to comply with such notices even if they are spurious" isn't correct. I assume you meant to say "The Foundation is required by law to comply with such notices even if they are spurious if it doesn't want to lose it's safe harbour" and even there I'm not sure the loss of safe harbour status would be universal.
Corrected.
Ryan Kaldari
On 6/7/10 12:02 PM, geni wrote:
On 7 June 2010 19:21, Ryan Kaldarirkaldari@wikimedia.org wrote:
I've added a new section on DMCA compliance to both the en.wiki and meta Office actions pages: http://meta.wikimedia.org/wiki/Office_actions http://en.wikipedia.org/wiki/Wikipedia:Office_actions
Please feel free to augment with additional info.
Ryan Kaldari
The claim "The Foundation is required by law to comply with such notices even if they are spurious" isn't correct. I assume you meant to say "The Foundation is required by law to comply with such notices even if they are spurious if it doesn't want to lose it's safe harbour" and even there I'm not sure the loss of safe harbour status would be universal.
geni wrote:
On 7 June 2010 19:21, Ryan Kaldari rkaldari@wikimedia.org wrote:
I've added a new section on DMCA compliance to both the en.wiki and meta Office actions pages: http://meta.wikimedia.org/wiki/Office_actions http://en.wikipedia.org/wiki/Wikipedia:Office_actions
Please feel free to augment with additional info.
Ryan Kaldari
The claim "The Foundation is required by law to comply with such notices even if they are spurious" isn't correct. I assume you meant to say "The Foundation is required by law to comply with such notices even if they are spurious if it doesn't want to lose it's safe harbour" and even there I'm not sure the loss of safe harbour status would be universal.
I have just changed the word "such" in the above to "validly formulated". Unless the notice complies with all the elements required by the law it is not a valid notice. A notice would include "A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
There is an interesting question that comes out of this discussion: Is a take-down notice a necessary pre-condition to issuing a counter-notice?
I see nothing in the law making this a requirement. The only thing that seems to support it is a kind of popular logic.
Many things are removed by admins in what they believe to be a good-faith compliance with the strict wording of the law. There is often no mechanism for appealing legal interpretations within the community.
As an example consider an orphan work last published in the United States more than seventy years ago. It would at first glance appear to qualify for the shorter libraries and archives rule for republication. When it appears at wikisource there is a discussion that results in the material being removed as a copyright violation. The actual rights owner or his legal agents have never been a part of the conversation.
In my analysis it would be perfectly correct to issue a counter-notice. The claim that there was a mistake would be simply based on the fact that there was no valid takedown notice. If we are talking about an orphan work there would be nobody to begin the kind of legal action envisioned. If there was no formal takedown notice the Foundation clearly cannot notify that person, and would be obliged to restore the material within the usual time frame.
The case of a seventy-plus year old orphan work is just one example where this could be a useful procedure.
Ray
On Mon, Jun 7, 2010 at 6:58 PM, Ray Saintonge saintonge@telus.net wrote:
geni wrote:
On 7 June 2010 19:21, Ryan Kaldari rkaldari@wikimedia.org wrote:
I've added a new section on DMCA compliance to both the en.wiki and meta Office actions pages: http://meta.wikimedia.org/wiki/Office_actions http://en.wikipedia.org/wiki/Wikipedia:Office_actions
Please feel free to augment with additional info.
Ryan Kaldari
The claim "The Foundation is required by law to comply with such notices even if they are spurious" isn't correct. I assume you meant to say "The Foundation is required by law to comply with such notices even if they are spurious if it doesn't want to lose it's safe harbour" and even there I'm not sure the loss of safe harbour status would be universal.
I have just changed the word "such" in the above to "validly formulated". Unless the notice complies with all the elements required by the law it is not a valid notice. A notice would include "A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
There is an interesting question that comes out of this discussion: Is a take-down notice a necessary pre-condition to issuing a counter-notice?
I see nothing in the law making this a requirement. The only thing that seems to support it is a kind of popular logic.
Many things are removed by admins in what they believe to be a good-faith compliance with the strict wording of the law. There is often no mechanism for appealing legal interpretations within the community.
As an example consider an orphan work last published in the United States more than seventy years ago. It would at first glance appear to qualify for the shorter libraries and archives rule for republication. When it appears at wikisource there is a discussion that results in the material being removed as a copyright violation. The actual rights owner or his legal agents have never been a part of the conversation.
In my analysis it would be perfectly correct to issue a counter-notice. The claim that there was a mistake would be simply based on the fact that there was no valid takedown notice. If we are talking about an orphan work there would be nobody to begin the kind of legal action envisioned. If there was no formal takedown notice the Foundation clearly cannot notify that person, and would be obliged to restore the material within the usual time frame.
The case of a seventy-plus year old orphan work is just one example where this could be a useful procedure.
Ray
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Well a counter-notice basically requires them to allow it to be republished under the law. I'm not sure we want to require the community to restore something that they deleted on their own accord. I think the appeal for those would and should be within the community itself. There is nothing of course that says that they can't take a sworn statement from the uploader that they have the right to upload it into account though.
James Alexander james.alexander@rochester.edu jamesofur@gmail.com
Ray Saintonge wrote:
As an example consider an orphan work last published in the United States more than seventy years ago. It would at first glance appear to qualify for the shorter libraries and archives rule for republication. When it appears at wikisource there is a discussion that results in the material being removed as a copyright violation. The actual rights owner or his legal agents have never been a part of the conversation.
And how are you determining that a work is orphaned? What JuJU do you have to declare that a work is free to use commercially?
wiki-list@phizz.demon.co.uk wrote:
Ray Saintonge wrote:
As an example consider an orphan work last published in the United States more than seventy years ago. It would at first glance appear to qualify for the shorter libraries and archives rule for republication. When it appears at wikisource there is a discussion that results in the material being removed as a copyright violation. The actual rights owner or his legal agents have never been a part of the conversation.
And how are you determining that a work is orphaned? What JuJU do you have to declare that a work is free to use commercially?
Whether a work is orphaned will vary from one work to another. Do you have a specific work in mind? I was just providing a plausible circumstance where this might apply.
I said nothing about commercial use.
I have no idea what you mean by "JuJU". . Ray
Ray Saintonge wrote:
And how are you determining that a work is orphaned? What JuJU do you have to declare that a work is free to use commercially?
Whether a work is orphaned will vary from one work to another. Do you have a specific work in mind? I was just providing a plausible circumstance where this might apply.
That's why I asked how you are going to go about reliably ascertaining that a work is orphaned. Just because a work hasn't be republished over a period of time is no guarantee that not a reliable guide to it being orphaned. The creator may not want it to be republished during his or her lifetime. The creators estate may similarly not want it republished, or they may not even want it republished in digital form.
I said nothing about commercial use.
By adding the work to wikisources you are unilaterally adding a license declaring that it is free to use commercially. Which is regardless of the actually wishes of the actual copyright owner as you simply do not know what the copyright owner wants.
I have no idea what you mean by "JuJU".
I mean what supernatural power are you in possession of that enables you to strip copyright from work and declare it free to use?
wiki-list@phizz.demon.co.uk wrote:
Ray Saintonge wrote:
And how are you determining that a work is orphaned? What JuJU do you have to declare that a work is free to use commercially?
Whether a work is orphaned will vary from one work to another. Do you have a specific work in mind? I was just providing a plausible circumstance where this might apply.
That's why I asked how you are going to go about reliably ascertaining that a work is orphaned. Just because a work hasn't be republished over a period of time is no guarantee that not a reliable guide to it being orphaned. The creator may not want it to be republished during his or her lifetime. The creators estate may similarly not want it republished, or they may not even want it republished in digital form.
There is no single technique that will allow this to be determined ...That is why I asked you about what specific work you had in mind.
The purpose of copyright is to protect the economic interests of the creator. Using copyright to completely prevent the republication of a work is an abuse of copyright. No one has suggested that time alone will render a work orphaned; you are confusing my premises with their consequences, and fighting ghosts.
I said nothing about commercial use
By adding the work to wikisources you are unilaterally adding a license declaring that it is free to use commercially. Which is regardless of the actually wishes of the actual copyright owner as you simply do not know what the copyright owner wants.
There is no question adding a licence when the usage is one already permitted by law, as would be the case with the library and archives exemptions. It is only in the minds of the chronically doctrinaire that your proposed licence makes any sense.
I have no idea what you mean by "JuJU".
I mean what supernatural power are you in possession of that enables you to strip copyright from work and declare it free to use?
Just because you support the use of primitive fetishes or Yoruba dances to determine copyright status does not warrant your tendentious and libelous accusation that I have engaged in the same witchcraft.
Ec
Ray Saintonge wrote:
wiki-list@phizz.demon.co.uk wrote:
Ray Saintonge wrote:
And how are you determining that a work is orphaned? What JuJU do you have to declare that a work is free to use commercially?
Whether a work is orphaned will vary from one work to another. Do you have a specific work in mind? I was just providing a plausible circumstance where this might apply.
That's why I asked how you are going to go about reliably ascertaining that a work is orphaned. Just because a work hasn't be republished over a period of time is no guarantee that not a reliable guide to it being orphaned. The creator may not want it to be republished during his or her lifetime. The creators estate may similarly not want it republished, or they may not even want it republished in digital form.
There is no single technique that will allow this to be determined ...That is why I asked you about what specific work you had in mind.
The purpose of copyright is to protect the economic interests of the creator. Using copyright to completely prevent the republication of a work is an abuse of copyright.
The economic interests of the creator may well be NOT to republish. Or to only republish in limited editions, and as this is concerning French works the creators have a moral rights as to how and when they're works are used.
No one has suggested that time alone will render a work orphaned; you are confusing my premises with their consequences, and fighting ghosts.
One one? Really?
[As an example consider an orphan work last published in the United States more than seventy years ago.] http://lists.wikimedia.org/pipermail/foundation-l/2010-June/059013.html
Because no one can ascertain whether a work is orphaned or not, the subsequent proposals to allow commercial reuse of works declared 'orphaned' will always get vehemently opposed by content creators. Now most of the opposition to Orphan Work legislation disappears once the prospect of commercial exploitation is removed.
Once you start uploading stuff to wikisource you are adding a commercial license which is NOT yours to give.
If I have uploaded a bunch of videos to youtube, just because I haven't logged into the account for some time, or even if I never log into it again it does not mean that I have abandoned any economic interest in me to get permission to use the videos, does not give you the legal right to declare it free to use commercially.
I said nothing about commercial use
By adding the work to wikisources you are unilaterally adding a license declaring that it is free to use commercially. Which is regardless of the actually wishes of the actual copyright owner as you simply do not know what the copyright owner wants.
There is no question adding a licence when the usage is one already permitted by law, as would be the case with the library and archives exemptions. It is only in the minds of the chronically doctrinaire that your proposed licence makes any sense.
If the usage is permitted by law then the work is not Orphaned it is either in the public domain or the use is covered by fair-use, you don't have to invoke the concept of Orphaned.
I have no idea what you mean by "JuJU".
I mean what supernatural power are you in possession of that enables you to strip copyright from work and declare it free to use?
Just because you support the use of primitive fetishes or Yoruba dances to determine copyright status does not warrant your tendentious and libelous accusation that I have engaged in the same witchcraft.
Tough.
On Thu, Jun 3, 2010 at 2:43 AM, Ray Saintonge saintonge@telus.net wrote:
It seems then that there is a question of jurisdiction involved. It has been my long held understanding that the Wikimedia projects have operated under the laws of the United States, and that WMF has been consistent in its view that chapters are not responsible for the contents of the projects. Why then do we now compromise this by relying on what the French courts might say if the takedown notices are issued under US law?
It turns out that foreign copyright judgments are more easily enforceable against U.S. entities in United States courts than other kinds of judgments, due to the copyright lobby's efforts to shape international copyright and enforcement treaties.
Counter-notices would also be produced under US law. There is no
requirement that the person who files a counter-notice be the same person who posted the original material. The original takedown notice needs to be a public document in order to enable any person considering a counter-notice to form the required good faith belief that the material was taken down because of a mistake or misidentification, or to challenge whether the takedown notice was compliant with all the requirements of such a notice. Thus I would suggest that the notices are not privileged in the way that other correspondence or discussions would be.
We made the details of the notice public, as Nathan has already shown.
--Mike
On 3 June 2010 15:26, Mike Godwin mnemonic@gmail.com wrote:
It turns out that foreign copyright judgments are more easily enforceable against U.S. entities in United States courts than other kinds of judgments, due to the copyright lobby's efforts to shape international copyright and enforcement treaties.
Non-US entities can easily send a valid DMCA takedown notice. This is useful when someone's *ripping your stuff off*, problematic when they don't have the relevant rights under copyright.
We made the details of the notice public, as Nathan has already shown.
If you can link in your notifications to a handy guide to contesting a DMCA takedown notice, that would probably answer the concerns in this thread. It's clear that people weren't sure if they could re-add things at all, ever, after a takedown notice, without express WMF permission. It's clear to you, but not to the non-lawyers who nevertheless know what a bogus claim copyright is. (And I know the WMF isn't their lawyer, but I'm sure high-quality guides to contesting takedown notices exist.)
- d.
On 3 June 2010 16:14, David Gerard dgerard@gmail.com wrote:
If you can link in your notifications to a handy guide to contesting a DMCA takedown notice, that would probably answer the concerns in this thread. It's clear that people weren't sure if they could re-add things at all, ever, after a takedown notice, without express WMF permission. It's clear to you, but not to the non-lawyers who nevertheless know what a bogus claim copyright is. (And I know the WMF isn't their lawyer, but I'm sure high-quality guides to contesting takedown notices exist.)
I understand it's possible WMF could be liable even for *alluding* to how to deal with these things in the notice. Because the DMCA is that messed up.
So: the community needs to:
1. Put a suitable guide to dealing with DMCA takedown notices on meta. (Festoon with disclaimers.) 2. Link it from each occasion the community is notified of a takedown notice having been received.
This will expressly not carry the Foundation's imprimatur in any way, but it will help the present problem.
Does that sound like it would deal with the problems? Yann?
- d.
2010/6/3 David Gerard dgerard@gmail.com:
On 3 June 2010 16:14, David Gerard dgerard@gmail.com wrote:
If you can link in your notifications to a handy guide to contesting a DMCA takedown notice, that would probably answer the concerns in this thread. It's clear that people weren't sure if they could re-add things at all, ever, after a takedown notice, without express WMF permission. It's clear to you, but not to the non-lawyers who nevertheless know what a bogus claim copyright is. (And I know the WMF isn't their lawyer, but I'm sure high-quality guides to contesting takedown notices exist.)
I understand it's possible WMF could be liable even for *alluding* to how to deal with these things in the notice. Because the DMCA is that messed up.
So: the community needs to:
- Put a suitable guide to dealing with DMCA takedown notices on meta.
(Festoon with disclaimers.) 2. Link it from each occasion the community is notified of a takedown notice having been received.
This will expressly not carry the Foundation's imprimatur in any way but it will help the present problem. Does that sound like it would deal with the problems? Yann?
Yes, a detailed guide on how to deal with a take-down notice would greatly help. If possible, it should include the issues raised by Ray: under which jurisdiction, who can send a counter-notice, etc. Ray also wrote that the take-down notice needs to be public, which it was not in this case.
- d.
Regards,
Yann
wikimedia-l@lists.wikimedia.org