On 2/8/07, Claudio Mastroianni gattonero@gmail.com wrote:

Il giorno 08/feb/07, alle ore 10:05, Mark Wagner ha scritto:

...

Nothing will change for en.wiki? Hardly. If I'm reading this correctly, most of the images used under a claim of "fair use" are no longer allowed

No, uncorrect. Foundation said that fair use images *should* not be used. The term is important, compared to "need to phased out" used with images with permission. You - en.wiki - as far as I've understood, have the right to choose if allow or not fair use images on your projects. Guess what are you going to choose? :D

Read it again. Fair use is pemitted for "some works, primarily historically important photographs and significant modern artworks, that we can not realistically expect to be released under a free content license, but that are hard to discuss in an educational context without including the media itself." Maybe one fair-use image in twenty on the English Wikipedia meets these criteria. The rest are used for simple visual identification of the subject of the article, or to make the article look prettier. It is, for example, quite possible to discuss the Beatles' album "Let It Be" without showing the cover art, yet the article on En has seven different images of album covers.

On 2/8/07, Claudio Mastroianni gattonero@gmail.com wrote:

The problem is that: stated that clarify once for all what's fair use and what's not is impossible, fair use are going to remain "vita natural durante" (forever and ever) on en.wiki. Are we thinking that every single image is going to be discuss if "acceptable fair use" or not? Unreal.

Gatto Nero

in theory that is already the case. In practice there are various bot asisted ways to burn through them.

Il giorno 08/feb/07, alle ore 11:28, Erik Moeller ha scritto:

The Italian Wikipedia, by the way, is free to develop an exemption policy that resonates with US & Italian law on copyright exemptions. -- Peace & Love, Erik

We found it (images with permission), WMF told this is not valid. We have no alternatives. Saying the "the italian is free to develop an exemption policy", then, is false.

Gatto Nero

Hoi, I think Erik said "please wait until the official resolution"... So do quote only a snippit of what he wrote and do continue theorising what he meant.. I think the bit you forgot to copy was.. please WAIT.. Thanks, GerardM

On 2/8/07, David Strauss david@fourkitchens.com wrote:

I think Erik means that the Italian wiki is free to 1) restrict acceptable content further than Wikimedia requires, or 2) find ways within Italian and U.S. law (combined) to accept material under copyright exceptions like fair use. (Yes, I know Italy does not have "fair use.")

Content that is non-commercial-use-only or specially licensed to Wikipedia or Wikimedia is counter to Wikimedia's mission of free knowledge.

Claudio Mastroianni wrote:

...

Il giorno 08/feb/07, alle ore 11:28, Erik Moeller ha scritto:

...

The Italian Wikipedia, by the way, is free to develop an exemption policy that resonates with US & Italian law on copyright exemptions. -- Peace & Love, Erik

We found it (images with permission), WMF told this is not valid. We have no alternatives. Saying the "the italian is free to develop an exemption policy", then, is false.

Gatto Nero

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Hoi, If this is the case check the times. Erik wrote some 40 minutes ago. Kat wrote some 8 hours ago. Thanks, GerardM

On 2/8/07, Claudio Mastroianni gattonero@gmail.com wrote:

Il giorno 08/feb/07, alle ore 11:58, GerardM ha scritto:

...

Hoi, I think Erik said "please wait until the official resolution"... So do quote only a snippit of what he wrote and do continue theorising what he meant.. I think the bit you forgot to copy was.. please WAIT.. Thanks, GerardM

Big error, read the signature of the first mail by Kat Walsh:

"Thanks to everyone for your input and hard work.

For the Wikimedia Foundation, Kat Walsh"

*For the Wikimedia Foundation,"

Gatto Nero

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Il giorno 08/feb/07, alle ore 19:30, Andrew Gray ha scritto:

In other words - she is speaking for the Foundation, but this is not the formal announcement, it's an outline of what the announcement is broadly intended to be.

It's a *wider* explanation of what the formal announcement will be.

"we hope that this *longer* message will provide the explanation behind the resolution"

Gatto Nero

GerardM wrote:

I think Erik said "please wait until the official resolution"... So do quote only a snippit of what he wrote and do continue theorising what he meant.. I think the bit you forgot to copy was.. please WAIT..

To be more precise:

Please wait for the official resolution. In my view, there is absolutely no reason to delete pictures like logos or album covers.

The important point in this is to avoid having people jump to conclusions. We have no shortage of people willing to boldly find an excuse to embark on some kind of deletion campaign.

Ec

Ray Saintonge wrote:

The important point in this is to avoid having people jump to conclusions. We have no shortage of people willing to boldly find an excuse to embark on some kind of deletion campaign.

Precisely for this reason, I can't help but ask why Kat felt it necessary to post anything at all. Couldn't she just have been silent? Perhaps the posting should have started with an explanation exactly why the posting was necessary. I can't believe that upsetting the Italian community was among her reasons.

We all wish that the Italian community would understand that the Foundation really doesn't hate Italy, but apparently such wishes can't stop another hundred messages from cluttering this list.

In every practical aspect, policies from the Foundation (or from Brion) now behave like a mass medium and tend to be redistributed and misinterpreted in the same manner. This means spokespeople need the same kind of [[media training]] that political candidates have to go through if they want to communicate their message successfully.

Il giorno 08/feb/07, alle ore 11:51, David Strauss ha scritto:

I think Erik means that the Italian wiki is free to 1) restrict acceptable content further than Wikimedia requires, or 2) find ways within Italian and U.S. law (combined) to accept material under copyright exceptions like fair use. (Yes, I know Italy does not have "fair use.")

Content that is non-commercial-use-only or specially licensed to Wikipedia or Wikimedia is counter to Wikimedia's mission of free knowledge.

I - as many othe wikipedians who are shocked and "a bit angry" about WMF decision - think that fair use is as counter to wikimedia's mission as images with permissions.

And I - as other wikipedians who are shocked bla bla bla - think that saying "You're allowed to do something that's impossible to do" is just like treat us like fools.

I still can't understand how's been possible to state two constrasting statement in the same letter, as "we accept only free media for all users and purposes" and "we accept fair use, who's not *for all users and purposes*".

Reporting an it.wikipedian's opinion: "Foundation members should work in politics, if they are so able to do this"

2007/2/8, Gunnar René Øie gunnarre@nvg.ntnu.no:

Because if the fair use claim is valid and strong enough, then commercial re-users can use those fair-use images. Non-commercial and "Wikipedia only"? Not so.

Can they? The en-wp fair use rationale states that it is valid fair use "On the English-language Wikipedia hosted on servers in the United States by the non-profit Wikimedia Foundation."

And what about ND images? If there is an image that is fair use on a page, and the rationale is strong enough to allow me to use it, then surely I would be allowed to use an ND image at the same place.

GerardM wrote:

Hoi, When a ND picture qualifies as fair use, the reason why you can maintain the existence is that it is fair use. The fact that it is also available as a ND is irrelevant and would be a reason for deletion. Thanks, GerardM

I think this can be a very important point and possibly the solution for the projects in languages which are centered in countries which do not allow fair use. Projects would be able to use less free media if these are compatible with the fair use policies and still be compliant with the national laws.

Marco (Cruccone on it.wikipedia)

2007/2/8, GerardM gerard.meijssen@gmail.com:

Hoi, When a ND picture qualifies as fair use, the reason why you can maintain the existence is that it is fair use. The fact that it is also available as a ND is irrelevant and would be a reason for deletion.

I know that that's the policy, I'm just trying to show the illogicality of the reasoning behind the policy. According to the message I was responding to, fair use was okay partly because it does, when used well enough, not infringe on the possibilities on reuse. Well, the same holds for ND, but that is still disallowed.

And in fact I think it IS illogical to say "this image may be used in unmodified form in any way, but nmay not be modified" is not free, when "this image in this form may be used in the way we are using it, but we don't say anything about other uses" is.

2007/2/8, Gerard Meijssen gerard.meijssen@gmail.com:

The ND does exclude. Fair use though a complicated concept does allow reuse for all on the same basis. These two have never been the same thing.

How does ND exclude and fair use not? What does fair use enable? If done well, the same image in the same way can be used in the same article and also in changes to the article provided they are not major. If there were not a fair use image, but an ND one, you could do that AND MORE.

2007/2/8, David Gerard dgerard@gmail.com:

On 08/02/07, Andre Engels andreengels@gmail.com wrote:

...

How does ND exclude and fair use not? What does fair use enable? If done well, the same image in the same way can be used in the same article and also in changes to the article provided they are not major. If there

were

...

not a fair use image, but an ND one, you could do that AND MORE.

Define "derivative" for the purposes of "no derivatives." e.g. Resizing is a derivative. "ND" is deeply flawed.

That's your interpretation, not mine. And anyway, making a derivative work from a fair use image is even less possible - I cannot even take it out of the page, so resizing is fully impossible.

On 08/02/07, Andre Engels andreengels@gmail.com wrote:

2007/2/8, David Gerard dgerard@gmail.com:

...

On 08/02/07, Andre Engels andreengels@gmail.com wrote:

...

...

How does ND exclude and fair use not? What does fair use enable? If done

...

Define "derivative" for the purposes of "no derivatives." e.g. Resizing is a derivative. "ND" is deeply flawed.

That's your interpretation, not mine.

The text itself is tricky:

http://creativecommons.org/licenses/by-nc-nd/2.5/

"# No Derivative Works. You may not alter, transform, or build upon this work."

http://creativecommons.org/licenses/by-nc-nd/2.5/legalcode

b. "Derivative Work" means a work based upon the Work or upon the Work and other pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted, except that a work that constitutes a Collective Work will not be considered a Derivative Work for the purpose of this License. For the avoidance of doubt, where the Work is a musical composition or sound recording, the synchronization of the Work in timed-relation with a moving image ("synching") will be considered a Derivative Work for the purpose of this License.

(Is a resizing an abridgement? A condensation? Is it "any other form"?)

3. License Grant. Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work as stated below:

1. to reproduce the Work, to incorporate the Work into one or more Collective Works, and to reproduce the Work as incorporated in the Collective Works; 2. to distribute copies or phonorecords of, display publicly, perform publicly, and perform publicly by means of a digital audio transmission the Work including as incorporated in Collective Works;

The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats, but otherwise you have no rights to make Derivative Works. [...]

(2. appears to contradict the definition of derivatives. Is a resizing technically necessary?)

- d.

David Gerard wrote:

b. "Derivative Work" means a work based upon the Work or upon the Work and other pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which the Work may be recast, transformed, or adapted, except that a work that constitutes a Collective Work will not be considered a Derivative Work for the purpose of this License. For the avoidance of doubt, where the Work is a musical composition or sound recording, the synchronization of the Work in timed-relation with a moving image ("synching") will be considered a Derivative Work for the purpose of this License.

(Is a resizing an abridgement? A condensation? Is it "any other form"?)

If resizing creates a disallowed derivative, and you and I are viewing the picture on different sized monitors, which of us is breaching the contract? :-)

Ec

2007/2/8, David Strauss david@fourkitchens.com:

Don't forget about parody. It's a subset of fair use *defined* by its derivative nature.

And your point is? If you take a work included as fair use and parody it, your fair use claim is not stronger than when you take a work included under an ND license and parody it.

David Gerard wrote:

On 08/02/07, Andre Engels andreengels@gmail.com wrote:

...

How does ND exclude and fair use not? What does fair use enable? If done well, the same image in the same way can be used in the same article and also in changes to the article provided they are not major. If there were not a fair use image, but an ND one, you could do that AND MORE.

Define "derivative" for the purposes of "no derivatives." e.g. Resizing is a derivative. "ND" is deeply flawed.

I suppose that so too would using only part of a photograph, as when you trim a full-length photo of someone down to a head shot. The problem with these licensing restrictions is that they reflect conditions that we don't need to accept, and which would be difficult to control. If we were to accept them they would still need to follow a standard agreement, or we could be stuck with a all sorts of subtle conditions that nobody knows about except the individuals involved with drafting the licence. These could come back to haunt us years from now. Do we really want to start tracking masses of licensing agreements for a century or more?

At least with fair use there is accessible law there that can be used in a legal argument. That law may not be the best possilble, but you avoid the pitfalls that can come out of writing contracts.

Ec

2007/2/8, Gunnar René Øie gunnarre@nvg.ntnu.no:

...

And what about ND images? If there is an image that is fair use on a page, and the rationale is strong enough to allow me to use it, then surely I would be allowed to use an ND image at the same place.

I assume you mean non-comm.

Yes, that is true, but then you're tagging it as fair use, not as non- comm.

No, I meant non-derivative. Why should I tag a use as fair use if it is well within permissions that I have?

2007/2/8, David Strauss david@fourkitchens.com:

...

And what about ND images? If there is an image that is fair use on a

page,

...

and the rationale is strong enough to allow me to use it, then surely I would be allowed to use an ND image at the same place.

Yes, because fair use is tangential to licensing. If you have a good fair-use rationale for an image, then you may use it under fair use. Having the additional option of a no-derivatives license does not infringe on that right.

Sorry, I don't think I made my point clear. What I meant was: "If there is a Wikipedia page with a fair use image, and the presence of that fair use image is (because of a strong enough fair use rationale) no impedence to further copying of the Wikipedia page, then having an ND image instead of the fair use one would definitely not be an impedence. Yet including the image as fair use is allowed, but including the ND image is not.

David Strauss wrote:

There's a big difference between the en-wp rationale for fair use and the policy for whether an image can be used on Wikipedia under fair use.

The fair-use *rationale* has a goal of emphasizing Wikipedia's characteristics to strengthen its legal claim to fair use. This is Wikipedia claiming maximal rights.

The fair-use *policy* has a goal of restricting fair use to a safe subset of what Wikipedia may legally use. This is Wikipedia exercising minimal rights.

There will always be a flexiblew grey area between these two views. We need to allow for unforseen circumstances that may be unique to one subject area, but the person wanting to expand free use beyond the minimal position needs to make a convincing argument.

...

And what about ND images? If there is an image that is fair use on a page, and the rationale is strong enough to allow me to use it, then surely I would be allowed to use an ND image at the same place.

Yes, because fair use is tangential to licensing. If you have a good fair-use rationale for an image, then you may use it under fair use. Having the additional option of a no-derivatives license does not infringe on that right.

Yes, and this is why it's so important to resist the temptation to muddle the two together.

Ec

On 2/8/07, Gunnar René Øie gunnarre@nvg.ntnu.no wrote:

Den 8. feb. 2007 kl. 12.00 skrev Claudio Mastroianni:

...

I still can't understand how's been possible to state two constrasting statement in the same letter, as "we accept only free media for all users and purposes" and "we accept fair use, who's not *for all users and purposes*".

Because if the fair use claim is valid and strong enough, then commercial re-users can use those fair-use images. Non-commercial and "Wikipedia only"? Not so.

Wrong. If the fair use claim is valid and strong enough, then commercial re-users can use those fair-use images IN THE USA. Please note that 30-33% - or some 111 million people* - of all first-language users live outside the US, and thus cannot legally freely reuse this content. If you count second-language speakers as well, this number rises to 1.5 BILLION PEOPLE who cannot freely reuse Wikipedia content.* Is that within our scope? I don't think so.

* If I read the Wikipedia article on English correctly.

Jon Harald Søby wrote:

On 2/8/07, Gunnar René Øie gunnarre@nvg.ntnu.no wrote:

...

Because if the fair use claim is valid and strong enough, then

commercial re-users can use those fair-use images. Non-commercial and "Wikipedia only"? Not so.

Wrong. If the fair use claim is valid and strong enough, then commercial re-users can use those fair-use images IN THE USA. Please note that 30-33% - or some 111 million people* - of all first-language users live outside the US, and thus cannot legally freely reuse this content. If you count second-language speakers as well, this number rises to 1.5 BILLION PEOPLE who cannot freely reuse Wikipedia content.* Is that within our scope? I don't think so.

I don't see the issue in simple terms of how many people can use the fair use material. Still having that many people arguing for fair use can present quite a strong voice. I would argue that a person living in a country that does not grant an individual copyrights greater than what that individual receives in his own country could claim fair use for works by a US producer. Denying fair use for US sourced material would be giving that person greater rights than what he receives in his own country.

When considering transitivity of fair use only one of the four factors gives us any trouble. The nature of the work used does not change, it is impossible for the re-user to use any more than the already insubstantial portion that we use, and if our use does not affect the market for the right's owner goods it is impossible to see where the market effect will change. If the re-user combines our fair uses with the fair use from an other site to create a composite, or even manages to tap enough of several fair uses to effectively re constitute the entire original work he is an abuser as well as a re-user. That kind of behaviour is completely out of our control.

The first factor is the problem: "the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes". We can control the purpose and character of our own use, but not that of the re-users. Our use is clearly not of a commercial nature, but we allow our re-users to act commercially. The use of the word "including" in that clause suggests that that provision is not used alone, and need not be the sole determining factor. It does cannot be interpreted to automatically exclude all commercial use and include all nonprofit educational uses. Judicial analyses of this factor tend to focus on the transformative nature of the use. Is the user changing the use into something other than that applied by the rights owner? We could ask ourselves, "If circumstances differed only in that we were a commercial operation instead of a non-profit one would our own identical use still be fair use?" If yes, would it not also be so for our re-users? If our own use is transformative, an identical re-use is also likely to be transformative, notably in mirror sites. Further transformations by re-users into new uses should also be acceptable. The only thing left then is those commercial sites who manage to transform fair use back into an infringement. This, like so many other abuses, is well beyond our control. Is is a "_significant_ legal restriction" in the sense intended by Kat's analysis.

Much of my comments above depends on US law. Other countries will be more restrictive, and that will certainly influence our decisions. Perhaps a policy that derives from the Berne Convention concept of "fair practice" might be more useful than a country by country analysis.

Ec

2007/2/8, habj sweetadelaide@gmail.com:

When the official resolution comes, I would be very happy if there was attached or included some kind of explanations as to if and how the laws of Italy are important for Italian Wikipedia, the laws of Finland matters for Finnish Wikipedia, etc. The servers are in Florida, so all of the Wikimedia project have to abide abide by US law - fine. I am a Swedish citizen and so I have to obey Swedish law if and when I upload stuff, and that is true regardless if I upload files to Swedish Wikipedia, Japanese Wikipedia, or to Commons. To me and many others, this does not necessarily imply that Turkish law is relevant when it comes to what rules Turkish Wikipedia should have.

Well, the main idea is that Wikipedia should be re-usable. It is reasonable to assume that the Turkish Wikipedia is used more in Turkey, and the Swedish one in Sweden. Therefore, if there is something that is allowed in the US and Sweden, but not in Turkey, forbidding it on the Turkish Wikipedia but allowing it on the Swedish does not sound too bad an idea to me.

On 2/8/07, Frieda Brioschi ubifrieda@gmail.com wrote:

Italian community is not a lawyer. But WMF is free to pay a lawyer to find an acceptable compromise, isn't it?

That would be worth considering. The Italian chapter could play a coordinating role in such a project. A similar legal expertise was funded by the German chapter a while ago.

Mark Wagner wrote:

On 2/8/07, Claudio Mastroianni gattonero@gmail.com wrote:

...

Il giorno 08/feb/07, alle ore 10:05, Mark Wagner ha scritto:

...

Nothing will change for en.wiki? Hardly. If I'm reading this correctly, most of the images used under a claim of "fair use" are no longer allowed

No, uncorrect. Foundation said that fair use images *should* not be used. The term is important, compared to "need to phased out" used with images with permission. You - en.wiki - as far as I've understood, have the right to choose if allow or not fair use images on your projects. Guess what are you going to choose? :D

Read it again. Fair use is pemitted for "some works, primarily historically important photographs and significant modern artworks, that we can not realistically expect to be released under a free content license, but that are hard to discuss in an educational context without including the media itself." Maybe one fair-use image in twenty on the English Wikipedia meets these criteria.

There are also a fairly substantial number of photos that I've found which are licensed "for use on Wikipedia only". These are currently cataloged and listed under fair-use images, but are not allowed for a 3rd party to use. I just found a couple of these yesterday, and it sort of surprised me that they were even there, as the copyright owner has given the WMF permission to host them on Wikipedia but they are otherwise unfree for anybody else to use them.

With this new policy, I guess these sort of images would have to be deleted on en.wikipedia.

Robert Scott Horning wrote:

Ray Saintonge wrote:

...

Mark Wagner wrote:

...

Nothing will change for en.wiki? Hardly. If I'm reading this

correctly, most of the images used under a claim of "fair use" are no longer allowed, and we'll need to figure out how to delete some 200,000 images, as well as how to educate thousands of users who are used to uploading those sorts of images.

Record album covers? book covers? publicity shots? These are all used to such an extent that the owners can be treated as having abandoned copyright

Unfortunately there is no "statute of limitations" on copyright infringement. Unlike trademark and patent laws, copyright can be enforced retroactively many years, even decades after the infringement has occured. It does not require active enforcement if somebody wants to go in and try to seek damages... even if the image has since passed into the public domain. And due to the Berne Convention, there is no asserted copyright that must be filed first in order to assume copyright. All images have complete copyright protections unless you have explicitly recieved the content via license... hence the need for something like the GPL and GFDL.

This is not correct. See Section 507 of the US copyright law which provides a three year limitation for civil action, five years for wilful criminal infringements.

Under Section 411 registration of US works is a prerequisite to starting an action for infringement, and no damages can be collected inrespect of a period that preceded registration. To satisfy the Berne convention the work is still protected from the time it is produced, but that is not enough to start an action.

This is relatively recent in terms of American copyright standards, where you could assume abandonded copyright if it wasn't registered with the Library of Congress, or if the copyright wasn't renewed. Politically, I think that is a much more valid way to address copyright where only those things that people are willing to say "I want this copyrighted!" can get that kind of protection, but that isn't current law.

As a rule of thumb I would say three years of complete inactivity on the part of the copyright owner would be sufficient for a claim of abandonment. In the case involving the Scientology papers a shorter period was ruled applicable for abandonment.

As things stand almost anything can be copyrighted, including such ephemera as advertising flyers that most of us like to throw away. We could not legally reproduce a 50-year old grocery flyer to show what the prices were like then; it does not matter if the company long ago ceased operation. The need to register would create a situation where orphaned material of this sort could be forced into the public domain by abandonment. The broad brush of the current regime only favours the big publishers, and creates confusion for everybody else.

I have occasionally considered the idea of promoting an OrphanWiki. Because of the potential legal implications this would need to be a separate project. Such a Project would include certain works which are strictly speaking still protected by copyright, but whose owners are unknown. What the project is doing would be flagrantly publicized in the hopes of flushing out the owner. If nothing at all is heard for three years the work could be treated as having gone into the public domain by abandonment.

Ec

On 09/02/07, Andre Engels andreengels@gmail.com wrote:

I'm sorry, but that does fly right in the face of existing laws - searches on both Wikipedia and Google tell me that legal abandonment of copyright only occurs when one explicitly confers material to the public domain. If you don't hear anything from the copyright holder in a reasonable term, that can be implicitly an acquiescence to your usage of the material. It does not remove any rights they have against others.

FWIW, UK copyright law recognises a defence of acquiescence, but you need to show that the other party was *aware* of it as well as taking no steps to stop it. This dates from 1906, but a ruling was made as recently as 1996 - there, the copyright holder became aware in early 1993 that use beyond the license was being made of its material, and the judge held that a defence of acquiescence could be made out from at least the middle of that year.

(I am unsure what that translated to in practice - I'm trying to dig up the reports, but suspect it was something along the lines of "you can only sue for the first couple of months of infringing use")

It's a defence (like fair-use) for infringement, though, *not* a release. And, of course, simply making your infringement public is not the same thing as them knowing about it - you'd have to somehow prove they were aware.

2007/2/9, Andrew Gray shimgray@gmail.com:

On 09/02/07, Andrew Gray shimgray@gmail.com wrote:

...

(I am unsure what that translated to in practice - I'm trying to dig up the reports, but suspect it was something along the lines of "you can only sue for the first couple of months of infringing use")

Aha, found it. Reported in the Times, Dec.02 1996:

"The owner of copyright in films who was aware that one of its licensees had plans to broadcast the films outside the area specified in the licence agreement and had subsequently done so, but did not complain or take any other action to stop them, had acquiesced and was therefore not entitled to claim an infringement of copyright."

I do not have the actual judgement, but it seems to me from this quote that the effect of the acquiescence was not equivalent to the material being in the public domain. Only the given copyright infringement ceased to be enforceable. If someone else took the same films, or even if the licensee were to use them in a way covered neither by his original license nor by the acquiesced-to announcement, normal copyright protection would again prevail. For the OrphanWiki this would mean that if one could make a sufficiently strong case that the work's owner had known about te copyright infringement for a certain amount of time without trying to take action, it could afterward remain on the OrphanWiki, but there is no reason to assume that copyright protection would be diminished or removed beyond that.

Ray Saintonge wrote:

Thanks for the comments. I couldn't find the case that I was thinking of involving Scientology. Since I am proposing that works would remain in OrphanWiki for at least three years unless a real owner shows up we would have plenty of time to sort out what to do after that period.

I would in fact be delighted if the owner showed up. In reality anything included in the project would be there because we don't expect anybody to show up. The legal rights may belong to one or more people who haven't got a clue that they have them.

Such a project may tread on legally uncertain ground. Strict criteria would be needed for determining what would be included. Most important wuld be the research that the proposer(s) has made to track down the rights owner. This metadata would also be a part of the wiki so that anyone can help with the research. That way the research becomes part of the record, even if we decide that the material itself does not meet our standards for inclusion. This could be useful for those operating a different and unrelated project to ours who want to make a decision about the risk of including the material on their own site.

If the OrphanWiki site becomes popular enough the site could become a standard place to stop in attempts to track down rights owners. Perhaps too we could get it to the point that iincluding material or metadata in OrphanWiki would defeat any claim that the owner didn't know about the rights.

The mission of making materials free is bigger than just repeating material that we know to be free. We want free outputs. The freeness of inputs or intermediate processes is far less important.

Ec

As you said earlier, I think something like this should certainly be done as a project completely independent of the Wikimedia Foundation, or even independent of even any of the current members of the board of trustees of the foundation, including avoiding any potential ties to Wikia as well.

This is clearly a project that intends to make a very strong political statement about copyright and orphaned works, and trying deliberately to set something up so somebody will say "sue me in court, please!" My real concern is if you rub the noses of some legislators/congressmen into the idea of orphaned works being legal to reproduce, that you may find legislation that would extend the "statute of limitations" that you are depending upon here. Of course the debate over any such legislation would bring these issues to the front, and even having Congress consider that there are problems with copyright law would be a significant political step at all. Free content users and communities are significantly better organized than when the Sonny Bono Copyright Act was passed, so I'm sure it would turn out to be a rather lively discussion all around.

I'm not sure I would want to participate in any such campaign like this project, but it is a very interesting idea. Legally, this would require a bunch of legwork before you even started, and it might be nice to get a couple of lawyers who might be willing to sign on pro-bono or be "sponsors" of this project before you got started in a significant way. To start this without such support is merely inviting trouble and would have to be found sooner rather than later anyway.

I'm curious about what would be seeded into a project like this to get it going, and who might be willing to use the content, particularly with those who have pointed out (IMHO correctly) that reuse of this content would reopen the legal issues and reset the legal time frames for copyright violations and legal challenges. Without a "killer app" that goes beyond the politics of this situation, I don't see how this could grow to become anything other than another marginally insignficant Wiki in the sphere of other numerous crazy internet dreams. The Uncyclopedia has massive use (and abuse) of fair-use content (claiming parody exemption), and they have much more fun in the process of getting that site put together. I guess I would like to know how this might be any different.