Michael Snow wrote:
Sorry, but if we start conceding that in effect, we are combining an article with an image into a single document under GFDL, downstream users have to be able to use the image alone. We are licensing them to modify the document, and potential modification includes stripping out all the text and just leaving the image. We cannot restrict downstream modification--that's essential to copyleft.
Sorry but fair use exists outside the concept of copyright and thus a fair use but otherwise non-FDL image in an article can no more become copyrighted under the GNU FDL than a quote in the same article can (fair use is essentially a grant into a type of public domain for limited uses). In short, no license can affect whether or not something is fair to use since it is the *use*, not the license terms, that determine fairness.
Fair use heavily depends on *use* - illustrating an article would be fine in many cases (same as using a quote in the text of the article), but once you strip the article away then the use has changed and the photo (and quote in the case of text) could not be used in many cases since its use would no longer be fair.
We just need to tag images used under the various types of fair use. Stuff that would be fair use for non-commercial and commercial downstream users should have one tag and stuff that would be fair use for non-commercial use but not downstream commercial users should have a different tag.
We could then make things easy for commercial downstream users by offering a different download dump. IMO, that should be of the printable versions of articles - which would automatically not display images marked with the second, more restrictive, fair use tag (nor would the images be in the dump). Printable versions of articles also already have the GNU copyright info and link-back to the Wikipedia article.
Also remember this (from http://en.wikipedia.org/wiki/Fair_use ) In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include-- (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
Everybody should also read [[Kelly v. Arriba Soft Corporation]] http://en.wikipedia.org/wiki/Kelly_v._Arriba_Soft_Corporation
In that case the Court ruled that the displaying of thumbnails by a search engine was fair use. This, even though the use was commercial and really wasn't educational (at least not nearly as educational as using an image to illustrate an article). It was also substantial in regards the amount of work used (but not substantial in relation to the quality of images served - since they were only thumbnails).
So there may be only a handfull of fair use images that we use that would not also be fair use for commercial downstream users (assuming they use the images the way we do - to illustrate articles).
--mav
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Daniel Mayer wrote:
Everybody should also read [[Kelly v. Arriba Soft Corporation]] http://en.wikipedia.org/wiki/Kelly_v._Arriba_Soft_Corporation
One of the points in that ruling was that the full-sized originals were unavailable. Something we should consider in our rush to switch images to use the new auto-thumbnailing feature.
"Once the thumbnails are created, the program deletes the full-sized originals from the server. Although a user could copy these thumbnails to his computer or disk, he cannot increase the resolution of the thumbnail; any enlargement would result in a loss of clarity of the image."
The court did not say thumbnail images are *per se* fair use. It made a limited claim on the specifics of the use by Arriba. Other major differences between Arriba and Wikipedia:
"As the district court found, while such use of Kelly’s images was commercial, it was more incidental and less exploitative in nature than more traditional types of commercial use."
The use in Wikipedia is intentional, and not incidental.
"Arriba’s use of Kelly’s images in the thumbnails is unrelated to any aesthetic purpose."
Wikipedia's use of the "fair use" images is closely related to an aesthetic purpose.
--- And remember, one of the goals of Wikipedia is to make a print encyclopedia which will be sold. So it's not just third parties who need to worry about obtaining images which may be used commercially.
Daniel Mayer wrote:
Sorry but fair use exists outside the concept of copyright
In Swedish medieval law, I could borrow my neighbor's harrow without asking, provided I returned it before sunset and replaced any pins that were broken.
This text is just as hard to understand whether you speak Swedish or not:
XLIX. Vm æn man takær haruu manzs ælla tinda
Nu takær man harw annars ok haruær mæþ um dagh; före atær firi sola sætær ok uari saklös. Takær ur tinda, gialdi firi fiura pænninga; takær ur atta, gialde firi huarn sua; takær ur þæn niunda, gialde firi niu örtughær. Förir han harvu iuir upgangxs akær, þa skal han haua haruv kialka; hauær han egh haruv kialka, þa böte atær spiællin ok mæþ siax öra.
Rough translation:
49. If a man takes another man's harrow or pins
A man takes another's harrow and harrows with it during the day; brings it back before the sun sets and is free of guilt. Takes out a pin, yield four pennies; takes out eight, yield for each so; takes out the ninth, yield nine örtug (a larger coin). If he brings the harrow across a sown field, then he shall have a sleigh underneath; if he has no sleigh, then pay for damages and six öre (another coin).
Not that this information helps the discussion in any way... Perhaps it illustrates that "fair use" rights have gotten smaller and smaller with time.
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