--- Erik Moeller erik_moeller@gmx.de wrote:
The wiki-author doesn't add a picture, he adds a reference to a picture.
...with the intent and expectation that the image and the text be combined into a whole by the user's browser. It's a technical detail that this combining is done by the browser rather than by the server - had we used PDF rather than HTML as our distribution medium, then the combining would take place on the server.
So yes, fair use quotes are technically violations of GFDL, but completely harmless.
Many copyright holders see things differently. Author Dan van der Vat, for example, was asked to pay 25 British pounds for quoting two sentences from Churchill's History of the Second World War in his book "The Atlantic Campaign". Sure: The legality is questionable.
In other words: this would be laughed out of court.
But don't kid yourself into believing that nobody would ever consider quotes infringing. Treating fair use of quotes and images entirely differently is hypocritical and wrong.
It is neither, since short textual quotes are quite different from images in at least two respects relevant to fair use.
1) Quotes are typically a tiny fraction of the whole work, while images are typically 100% of the whole work.
2) There is no functioning market for the rights in short quotes, but there is a functioning market for the rights in images.
Now, I don't think Wikipedia is at any risk whatsoever: if somebody complains about an image, we simply take it down. We don't have money, so we won't get sued. The downstream users of our materials however may not share these luxuries, and in addition may have commercial interests which weakens their fair use defense considerably. In effect our fair use images shut out large classes of potential users of the encyclopedia.
Axel
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Axel-
The wiki-author doesn't add a picture, he adds a reference to a picture.
....with the intent and expectation that the image and the text be combined into a whole by the user's browser.
What matters in law is the text of the FDL, because that's what we're dealing with. The FDL states that aggregation with "separate and independent" works is acceptable. The wiki-author creates a combined work of the previous work and the image reference -- with the expectation that they will be *aggregated* on *some* users' systems. Texts and images are separate works, stored separately, sometimes transferred together, sometimes not. They do not constitute a single, individual work only because some browsers display them together. This case is explicitly treated in the FDL. Do you accept that there is a distinction between aggregation and combination? Then where does combination end and aggregation begin?
The classical example for aggregation is a CD-ROM of several works. But just like a Wikipedia text with an image, the individual works are almost certainly tied together via references and identifiers. Would a CD-ROM that displays dynamically copyrighted, keyword-associated pictures when an article is shown infringe the FDL? Hardly.
Many copyright holders see things differently. Author Dan van der Vat, for example, was asked to pay 25 British pounds for quoting two sentences from Churchill's History of the Second World War in his book "The Atlantic Campaign". Sure: The legality is questionable.
In other words: this would be laughed out of court.
Maybe so, but would Wikipedia go to court?
It is neither, since short textual quotes are quite different from images in at least two respects relevant to fair use.
- Quotes are typically a tiny fraction of the whole work, while images
are typically 100% of the whole work.
Even when they are "combined" with Wikipedia articles? ;-) At least now you are interpreting the term "work" reasonably. The next step is to do so not only when it suits your argument ..
- There is no functioning market for the rights in short quotes, but
there is a functioning market for the rights in images.
Mostly true, and we should be very careful in dealing with images that are part of this market. This is the essence of a reasonable fair use doctrine for Wikipedia: Try to figure out if someone may be interested in stopping distribution of picture X, and if so, do not include it (possibly with some rare exceptions of high political/historical significance).
Now, I don't think Wikipedia is at any risk whatsoever: if somebody complains about an image, we simply take it down. We don't have money, so we won't get sued. The downstream users of our materials however may not share these luxuries,
That's why we will provide the flags in the image table.
and in addition may have commercial interests which weakens their fair use defense considerably.
People who want to make money with Wikipedia can be expected to do some manual work.
In effect our fair use images shut out large classes of potential users of the encyclopedia.
So does the FDL. But we can make fair use optional.
Regards,
Erik
[Replies should go only to <wikipedia-l>.]
Axel Boldt wrote in part:
Erik Moeller wrote:
The wiki-author doesn't add a picture, he adds a reference to a picture.
...with the intent and expectation that the image and the text be combined into a whole by the user's browser. It's a technical detail that this combining is done by the browser rather than by the server - had we used PDF rather than HTML as our distribution medium, then the combining would take place on the server.
I've decided that this is not at all a technical detail. It's part of the point of both our design and HTML's design that the same image can be dynamically combined with several different pieces of text. Indeed, if we used PDF and had to combine things on our server, *then* we might have an argument that this was merely a technical detail, in an attempt to wriggle out of the GFDL's restrictions. But with HTML, the technology is following the authors' intent precisely.
Author Dan van der Vat, for example, was asked to pay 25 British pounds for quoting two sentences from Churchill's History of the Second World War in his book "The Atlantic Campaign". Sure: The legality is questionable.
In other words: this would be laughed out of court.
Was it?
But don't kid yourself into believing that nobody would ever consider quotes infringing. Treating fair use of quotes and images entirely differently is hypocritical and wrong.
It is neither, since short textual quotes are quite different from images in at least two respects relevant to fair use.
- Quotes are typically a tiny fraction of the whole work, while images
are typically 100% of the whole work.
This, I think, is an important point. It came up long before in discussion of album covers. It seems doubtful that our usage of these images is truly "fair use" in the first place (a separate issue from whether it violates the GFDL). After all, the portion of *our* work that it constitutes is irrelevant (and that's still 100%, since the image is the entire work for us too); it's the portion of *their* work, and that's obviously 100%.
- There is no functioning market for the rights in short quotes, but
there is a functioning market for the rights in images.
Yes, this also affects "fair use" law in the US.
Now, I don't think Wikipedia is at any risk whatsoever: if somebody complains about an image, we simply take it down. We don't have money, so we won't get sued. The downstream users of our materials however may not share these luxuries, and in addition may have commercial interests which weakens their fair use defense considerably. In effect our fair use images shut out large classes of potential users of the encyclopedia.
It shuts out hardly any users, relatively speaking, since it doesn't shut out any readers or writers. What it shuts out is forkers, and others that would reproduce Wikipedia. This is why it's important that we not claim that all image files are covered under the GFDL, since many are no such thing. IOW, it's the separation of the free images from the proprietary ones that we need to be working on.
-- Toby
--- Toby Bartels toby+wikipedia@math.ucr.edu wrote:
Axel Boldt wrote in part:
Erik Moeller wrote:
The wiki-author doesn't add a picture, he adds a reference to a picture.
...with the intent and expectation that the image and the text be combined into a whole by the user's browser. It's a technical detail that this combining is done by the browser rather than by the server
- had we used PDF rather than HTML as our distribution medium, then
the combining would take place on the server.
I've decided that this is not at all a technical detail. It's part of the point of both our design and HTML's design that the same image can be dynamically combined with several different pieces of text. Indeed, if we used PDF and had to combine things on our server, *then* we might have an argument that this was merely a technical detail, in an attempt to wriggle out of the GFDL's restrictions. But with HTML, the technology is following the authors' intent precisely.
I guess that's what it all comes down to. Here's how I would try to convince a non-technical judge of my interpretation: "Assuming Mr. Toby is correct, the New York Times could freely take one of Wikipedia's GFDL images taken by Mr. Mav and use it to illustrate a front page article of its web version, without any license problems or negative repercussions. But if they were to include the image into their paper version, they'd have to license the whole article (newspaper?) under GFDL. Your honor, isn't that obviously bollocks, isn't the distribution medium a mere technical detail, since anybody can simply print out the web version?" -- "Yes of course, oh eloquent attorney."
Axel
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Axel Boldt wrote:
I guess that's what it all comes down to. Here's how I would try to convince a non-technical judge of my interpretation: "Assuming Mr. Toby is correct, the New York Times could freely take one of Wikipedia's GFDL images taken by Mr. Mav and use it to illustrate a front page article of its web version, without any license problems or negative repercussions. But if they were to include the image into their paper version, they'd have to license the whole article (newspaper?) under GFDL. Your honor, isn't that obviously bollocks, isn't the distribution medium a mere technical detail, since anybody can simply print out the web version?" -- "Yes of course, oh eloquent attorney."
This seems to me like a reasonable argument that the NYTimes could make to allow themselves to use mav's photo on their front page. They'd have to argue that the front page is a *compilation*. And if they really did include with mav's photo everything that they'd need for the GFDL to apply when it's alone (text of the licence, link to a source that hasn't been smudged, etc), then I'd be inclined to let them get away with it.
-- Toby
Toby Bartels wrote:
This seems to me like a reasonable argument that the NYTimes could make to allow themselves to use mav's photo on their front page. They'd have to argue that the front page is a *compilation*. And if they really did include with mav's photo everything that they'd need for the GFDL to apply when it's alone (text of the licence, link to a source that hasn't been smudged, etc), then I'd be inclined to let them get away with it.
I think that's exactly right. They would be in compliance with the GNU FDL.
Axel Boldt wrote:
I guess that's what it all comes down to. Here's how I would try to convince a non-technical judge of my interpretation: "Assuming Mr. Toby is correct, the New York Times could freely take one of Wikipedia's GFDL images taken by Mr. Mav and use it to illustrate a front page article of its web version, without any license problems or negative repercussions. But if they were to include the image into their paper version, they'd have to license the whole article (newspaper?) under GFDL. Your honor, isn't that obviously bollocks, isn't the distribution medium a mere technical detail, since anybody can simply print out the web version?" -- "Yes of course, oh eloquent attorney."
And then the judge would rule that *either* is appropriate. The NYT could use a GNU FDL image in at least 2 ways without causing any problems for the copyright status of the rest of the paper.
1. If appropriate, their use could be fair use. For example, if there were writing an article about Wikipedia's GNU FDL image collection, and wanted to report on it by showing examples of what is in it, this would likely pass fair use muster.
2. If they didn't have a fair use angle, they could post the photo with an explanation that it is GNU FDL, and that the paper was aggregating independent works under clause 7 of the GNU FDL. They'd have to comply with all the other terms of the license, of course, but if they did, there would be no way anyone could seriously claim that there were violating GNU FDL if they didn't place their other content in the same paper under GNU FDL.
--Jimbo
(This policy stuff should really be over on wikipedia-l, not here, so I am cc:'ing).
Toby Bartels wrote:
It came up long before in discussion of album covers. It seems doubtful that our usage of these images is truly "fair use" in the first place (a separate issue from whether it violates the GFDL).
It doesn't seem doubtful to me. See Kelley v. ArribaSoft on thumbnails: http://biotech.law.lsu.edu/cases/IP/copyright/kelly_v_arriba_soft.htm
And also: "On the other hand, in Nunez v. Caribbean International News Corp.,*fn22 the First Circuit found that copying a photograph that was intended to be used in a modeling portfolio and using it instead in a news article was a transformative use."
It's a very complicated issue, and although I've spent many hours reading court cases, I still can't say with any certainty on lots of questions.
But the album cover example seems pretty squarely fair use.
It shuts out hardly any users, relatively speaking, since it doesn't shut out any readers or writers. What it shuts out is forkers, and others that would reproduce Wikipedia. This is why it's important that we not claim that all image files are covered under the GFDL, since many are no such thing. IOW, it's the separation of the free images from the proprietary ones that we need to be working on.
This I agree with completely.
Also, *where possible*, and I think this is more cases than people commonly realize, we should be replacing fair use images with pure GNU FDL images.
--Jimbo
Jimmy Wales wrote in part:
Toby Bartels wrote:
It came up long before in discussion of album covers. It seems doubtful that our usage of these images is truly "fair use" in the first place (a separate issue from whether it violates the GFDL).
It doesn't seem doubtful to me. See Kelley v. ArribaSoft on thumbnails: http://biotech.law.lsu.edu/cases/IP/copyright/kelly_v_arriba_soft.htm
Right, they're thumbnails. I forgot. I should have looked the discussion up!
And also: "On the other hand, in Nunez v. Caribbean International News Corp.,*fn22 the First Circuit found that copying a photograph that was intended to be used in a modeling portfolio and using it instead in a news article was a transformative use."
I didn't know about this! So how come changing purpose from «indoctrinating people» to «informing the public about an organisation» isn't transformative enough for Co$'s lawyers? -_^
-- Toby
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