Andre Engels wrote:

Then we'd better start deleting - there's about 50 pictures on WikipediaEN that are only free for non-commercial use.

Well, we'd better start flagging them, at least, which is what this option is going to do.

There's no question that Wikipedia.org, the website, can use such images. It's likely that in at least some cases, for-profit websites using our data would also be able to use such images, under fair use which MIGHT apply IN SOME USES regardless of the desires of the copyright holder to restrict 'commercial' uses.

Images which aren't GNU FDL or public domain are controversial on Wikipedia. I think the things that everyone agrees on are:

1. Whenever a "fair use" image can be replaced with a GNU FDL or public domain image, we should do so as soon as we can.

2. While it is likely legal for us to *use* some images under the doctrine of fair use, it is a complicated doctrine and caselaw provides only minimal guidance.

3. In any event, if we distribute licenses under "fair use", this does not imply in any way that *other people's uses* will qualify similarly. This makes distributing them problematic and non-free.

4. Whatever we ultimately end up doing about fair use images, one thing is sure: we need to keep track of them better for our own purposes, but also so that we can appropriately assist people who are re-using the content.

------------------------------

Sometimes people say things that amount to "heh heh, this is great, we can use the images, but some commercial outfits can't, and so if they want to make money off of our hard work, they'll have to spend a lot of money going through the image data figuring out what it is, which will tend to prevent them from doing it."

I don't think that attitude is consistent with the ideal of freedom expressed in the GNU philosophy.

--Jimbo

"Jimmy Wales" jwales@bomis.com on Wednesday, August 13, 2003 4:12 PM said: <..snip..>

3. In any event, if we distribute licenses under "fair use", this

does not imply in any way that *other people's uses* will qualify similarly. This makes distributing them problematic and non-free.

I have wondered the same thing when noting that some images are fair use. I saw one image on the [[Stalin]] page and it clearly cannot be reproduced as it features the image of a Russian woman whose identity can clearly be surmised. While use of that image is probably allowable under fair use (she is holding a photo of Stalin, while the photo is probably in the public domain as the Soviet Union did not recognize the Berne convention at the time of its publication) her image is most likely copyrighted by someone, as well, her [[personality rights]] are probably being violated.

4. Whatever we ultimately end up doing about fair use images, one

thing is sure: we need to keep track of them better for our own purposes, but also so that we can appropriately assist people who are re-using the content.

I have only posted fair use material on Wikipedia once on the [[Pretty Woman]] page, the lyrics of the song that were published as an Appendix to the [[Campbell v. Acuff-Rose Music]] US Supreme Court case, and I clearly stated that it was being posted as fair use material, but I do not think that everyone follows this level of diligence on Wikipedia, there should be a policy that everyone needs to post any fair use origination information on the talk page, but how can that policy ever been enforced? ------------------------------

Sometimes people say things that amount to "heh heh, this is great, we can use the images, but some commercial outfits can't, and so if they want to make money off of our hard work, they'll have to spend a lot of money going through the image data figuring out what it is, which will tend to prevent them from doing it."

I don't think that attitude is consistent with the ideal of freedom expressed in the GNU philosophy.

I find this whole issue confusing. If anyone wants the encyclopedia for free, then then can distribute it and allow it to be copied, but if someone is going to make those copies as a publication they have to deal with the fact that anyone who posts on Wikipedia could have posted infringing material as there is an open posting policy, I can't see a way around that kind of problem for anyone who might want to legally exploit Wikipedia's work. Under the current posting policy, even if someone were to sign an indemnification clause and warranty as part of their copyright assignment to Wikimedia how can Wikimedia guarantee any clear [[chain of title]] to third parties? That would require proof from all authors that their work was original and not merely reviewed by the many Wikipedia volunteers. It would bring into suspect all anonymous contributions as well. A lot of due dillegence would be required before anyone publishes Wikipedia in any other form than an online repository. For instance in an article that is a biography the author of such an article should have a list of all his or her biographical references, the person doing the due dilligence should then independently check all those references to see if any of the material might have been inadvertently copied. As well due dilligence would require that someone check other sources that are not listed in the bibliographic references for the author or authors who have published a work. Only after such an extensive search is done can someone assure an insurer that it is highly unlikely that a copyright infringement suit would be filed against the publisher. I can't see how that can ever happen with Wikipedia information except its use as an online research tool for other authors. It is not a manual that might be published by, let's say a dozen of individuals who want to make the use of open source software available for public use. It is written by thousands of people, many of whom are anonymous and who may be posting content written by someone else who has not given them permission to post on Wikipedia (remember even unpublished work is protected by copyright).

alex756

Erik,

If it was originally a AP photo then perhaps they have copyright. Wikipedia does not have any personality right release for that women. If AP acquired that photo they might not have a release because it was taken during a pro-Stalin demonstration that was a public newsworthy event, now however, long after that event she has privacy rights to be respected. News gathering standards are not the same for photos that are used for other purposes.

Of course getting sued in a California (or Federal court in any federal district as the plaintiff would be a foreign national) by a Russian citizen is highly unlikely, but this is exactly the kind of thing that due dilligence is designed to prevent, these nagging questions that are hard to resolve. That is why the chain of title is so important in any work that is released for public distribution outside of the open source, on line Wikipedia environment. For photos of individuals you need to get a release from that person, the personality rights thing is independent of any copyright issue. Alex756

----- Original Message ----- From: "Erik Moeller" erik_moeller@gmx.de To: wikipedia-l@wikipedia.org Sent: Wednesday, August 13, 2003 6:22 PM Subject: Re: [Wikipedia-l] RE: [Wikitech-l] Copyright Schmopyright

Alex-

...

I have wondered the same thing when noting that some images are fair use. I saw one image on the [[Stalin]] page and it clearly cannot be reproduced as it features the image of a Russian woman whose identity can clearly be surmised.

How is our use different from that by the original source (looks like an AP or Reuters photo to me)? I would vote for its deletion on the grounds that it provides no source credit and was uploaded by a known troll, but the personal rights issue seems questionable to me.

Regards,

Erik _______________________________________________ Wikipedia-l mailing list Wikipedia-l@wikipedia.org http://www.wikipedia.org/mailman/listinfo/wikipedia-l

On Wed, 13 Aug 2003, Jimmy Wales wrote:

Andre Engels wrote:

...

Then we'd better start deleting - there's about 50 pictures on WikipediaEN that are only free for non-commercial use.

Well, we'd better start flagging them, at least, which is what this option is going to do.

Which was exactly my proposal, adding an extra flag for this so we can distinguish them both from material we can spread under GNU/FDL without problems and material that is only acceptable because of 'Fair Use'. But then I got the remark back that that was not necessary because we were not supposed to have such images.

Apart from 'non-commercial use' images, I have also in this way uploaded (to nl:) images which fell under the GPL (adding in both cases a note on the using page that it does not fall under the GNU/FDL, and on the description page giving the actual copyright status).

Andre Engels