On Wed, 2002-10-30 at 08:30, Jimmy Wales wrote:
Comments? I think Imran has a point.
Imran Ghory wrote:
> My understanding of the GNU FDL is that we can't incorporate "fair
> use" material unless we implictly declare those sections as "Invariant
I am not an IP lawyer, but I've made a careful study of these issues in
general and the GFDL specifically, and I've interviewed IP lawyers.
Point #1 is the main consideration, and point #3 is the one that people
can argue circles around, unless we have any IP lawyers who have dealt
with current fair use/DMCA issues.
1. I'm extremely uncomfortable about contaminating the Wikipedia feed
with content that can't be used by downstream licensees. If we didn't
use any GFDL content ourselves, then we wouldn't be limited by the GFDL
conditions, but we do (or at least would like to be able to).
Whatever the case, it's certainly not in the spirit of the GFDL to
include non-free (the RMS def.) images.
This is the main consideration.
2. I certainly think that it's crazy to imagine a legal setup in which
image use as we do would be forbidden, but we live in a crazy world,
with DRM around the corner.
3. Finally, "fair use" is, unfortunately, a defense (Good Faith Fair Use
Defense, Section 504(c)(2)
). If someone challenges
the use of their images, we would have to prove "fair use" in court,
after the injunction. The fair use defense is sadly weak.
See #4, #7
Note that Wikipedia does not fall under the University of Texas's
recommended "safe" fair use examples. See also the section below:
1) publishers clearly believe fair use has time limits;
2) courts seem increasingly willing to let the fourth factor of the fair
use analysis trump all the other factors so that where there is a market
for permissions, "fair use is negated." This was the position
articulated by the majority in the recent MDS decision.
etc. Fair use is not a safe defense.