Thomas Dalton writes:
Would defending one case reduce costs of future cases
by virtue of
establishing a precedent, or will it still cost enormous amounts even
if with a precedent?
It depends on far too many factors to list here.
However, your question makes me wonder. Is your
concern about fair
use
rooted primarily in concern about our telling reusers what is fair
use?
No. It's concern about our reusers getting sued.
Delirium writes:
Unless I'm missing some recent change,
historically copyright holders
have been very wary of pressing lawsuits against educational and
non-profit entities in cases where fair use might be a plausible
defense, for fear of losing the case and establishing a strong
pro-fair-use precedent.
Historically, there's only been one non-profit entity with a top-ten
website. In recent years, copyright holders have been more aggressive
at initiating litigation in response to the perceived threat of
digital reproduction and redistribution. (Aside: between 1999 and
2005 I worked on digital copyright policy in Washington.)
Anthony writes:
As the only one who mentioned the DMCA in this thread
I'll pretend
that question was for me.
It wasn't, though I'm happy to respond anyway.
Besides the obvious argument that a free
encyclopedia should contain free content, I think such mixing of free
and non-free content goes against the spirit if not the letter of the
GFDL. But I'm also for being honest about the reasons that content is
removed.
I think this is an important consideration. We want the content we
make available to be maximally unencumbered (with that lack of
encumbrance enforced by the GFDL or similar license). "Fair use"
content doesn't meet that criterion.
Please understand that I am resolutely in favor of fair use, of fair
use/fair dealing doctrines, and even of occasional use of such content
on our projects. But we can't pretend that the issues regarding
protecting the Foundation and its projects and the communities we
serve are the same as straight-up issues about copyright and fair
use. There's some overlap, sure, but the issues raised are different,
depending on context.
As any copyright lawyer will tell you, context is pretty much
everything in copyright law.
--Mike