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

Il giorno 08/feb/07, alle ore 11:17, Mark Wagner ha scritto: 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

On 2/8/07, Mark Wagner <carnildo(a)gmail.com> wrote: Please wait for the official resolution. In my view, there is absolutely no reason to delete pictures like logos or album covers. 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 DISCLAIMER: This message does not represent an official position of the Wikimedia Foundation or its Board of Trustees.

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 11:51, David Strauss ha scritto: 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"

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

I was only pointing out that the Italian Wikipedia policy did not fall under its ability "to develop an exemption policy that resonates with US & Italian law on copyright exemptions." Non-commercial-use-only and Wikipedia-licensed works are not used on a copyright *exemption* basis. They're used with permission. That said, I'll try to refrain from further discussion about this issue until the board gives it consideration. GerardM wrote:

2007/2/8, Gunnar René Øie <gunnarre(a)nvg.ntnu.no>no>: 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. -- Andre Engels, andreengels(a)gmail.com ICQ: 6260644 -- Skype: a_engels

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 On 2/8/07, Andre Engels <andreengels(a)gmail.com> wrote:

Den 8. feb. 2007 kl. 12.17 skrev Andre Engels: And when you hack that part away, and deprecate those templates and rationales that only apply to Wikipedia and non-commercial enteties, you're left with those that would apply to all re-users in countries with a similar fair use doctrine as the US. I assume you mean non-comm. Yes, that is true, but then you're tagging it as fair use, not as non- comm.

On 2/8/07, Claudio Mastroianni <gattonero(a)gmail.com> wrote: in theory that is already the case. In practice there are various bot asisted ways to burn through them. -- geni

GerardM wrote: 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(a)gmail.com>om>: 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. -- Andre Engels, andreengels(a)gmail.com ICQ: 6260644 -- Skype: a_engels

2007/2/8, Gunnar René Øie <gunnarre(a)nvg.ntnu.no>no>: No, I meant non-derivative. Why should I tag a use as fair use if it is well within permissions that I have? -- Andre Engels, andreengels(a)gmail.com ICQ: 6260644 -- Skype: a_engels

Yes, but I would want to see the ND license *and* the old fair-use rationale side-by-side for the image. Premise: non-free and fair-use >= non-free or fair-use Conclusion: ND and fair-use >= ND or fair-use (I really wish I had the resolve to shut up until the board considers this issue.) Andre Engels wrote:

2007/2/8, Gerard Meijssen <gerard.meijssen(a)gmail.com>om>: 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. -- Andre Engels, andreengels(a)gmail.com ICQ: 6260644 -- Skype: a_engels

On 08/02/07, Andre Engels <andreengels(a)gmail.com> wrote: Define "derivative" for the purposes of "no derivatives." e.g. Resizing is a derivative. "ND" is deeply flawed. - d.

2007/2/8, David Gerard <dgerard(a)gmail.com>om>: 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. -- Andre Engels, andreengels(a)gmail.com ICQ: 6260644 -- Skype: a_engels

On 08/02/07, Andre Engels <andreengels(a)gmail.com> wrote: 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.

2007/2/8, David Strauss <david(a)fourkitchens.com>om>: 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. -- Andre Engels, andreengels(a)gmail.com ICQ: 6260644 -- Skype: a_engels

On 2/8/07, Erik Moeller <erik(a)wikimedia.org> wrote: Oh, and since then it can be assumed common knowledge that a lot of Wikiquote's content is illegal in Germany. Not that anyone seems to care... Great example ;) http://meta.wikimedia.org/wiki/Rechtsfragen_M%C3%A4rz_2005#III._Nutzung 4) Sind Zitaten- und Aphorismensammlungen zulässig, wenn die Texte urheberrechtlich geschützten Werken entnommen werden? Cheers, Arne

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

Ray Saintonge wrote: 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 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. In the case of most publicity shots (perhaps not book and album covers), I don't think the people being photographed really care all that much about copyright. The photographer, perhaps a little bit, but they are getting paid for the photos wheither anybody pays royalties or not, and strong copyright is not their bread and butter for those kind of photos. -- Robert Scott Horning

On 2/8/07, Ray Saintonge <saintonge(a)telus.net> wrote: /me starts warning the deletion machine...

David Gerard wrote: 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

Ray Saintonge wrote: 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. -- Lars Aronsson (lars(a)aronsson.se) Aronsson Datateknik - http://aronsson.se

Robert Scott Horning wrote: 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. 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

2007/2/9, Ray Saintonge <saintonge(a)telus.net>et>: 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. -- Andre Engels, andreengels(a)gmail.com ICQ: 6260644 -- Skype: a_engels

On 09/02/07, Andrew Gray <shimgray(a)gmail.com> wrote: 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." The action was dismissed. I can pass a copy of the report (aha! fair scholarly use!) on to anyone wishing to peruse it further... -- - Andrew Gray andrew.gray(a)dunelm.org.uk

Andre Engels 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

Jon Harald Søby wrote: 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