Daniel-
Free software and free content projects are very vunerable to corporate litigation simply because they don't have the financial resources to tackle it. The projects are generally run by a group of individuals, which make ideal targets for corporate threats about liability.
That's why having a non-profit organization is a good idea. It is one of the best arguments to join the GNU project when developing free software, for example -- still, most people are understandably irritated by their zealous nature. For Wikipedia, we will have the Nupedia Foundation to offer legal protection.
So speaking in practical terms (wich should please you) the question isn't so much about who is right or wrong - but what the risks are. And the risks of using material that isn't 100% verified as free are enormous. As the SCO debacle clearly demonstrates.
Only that the "SCO debacle" happened in spite of assurances by everyone that only GNU GPL code was involved -- according to SCO, however, IBM screwed up. Aside from the fact that the entire lawsuit is a Microsoft FUD project, all this demonstrates is that in spite of your best intentions, you can still get sued -- exactly what I've been saying.
It makes no sense to ignore the freedoms offered to us by law -- and one of these freedoms, in the US and most other civilized nations, is fair use -- only because some people might interpret that law differently. Realistically, the only real threat to Wikipedia is that someone will send us a nasty letter to take this or that image down, which we obviously will do in most cases. What you are promoting is to give up freedom because the Large Evil Corporations have deeper pockets. I don't think we should give in that easily. See also: http://meta.wikipedia.org/wiki/avoid_copyright_paranoia
It makes sense to be careful, it makes sense to use open content whenever possible. But a purely ideological stance is counter productive. I find it quite ironic that the most ardent advocates of open content also frequently adopt a police state mentality with regard to perceived violations.
FreeBSD is a project where they have learned from bitter experience that every last piece of code included or inherited must be double checked for copyright, patents and non disclusure problems.
I'm all for double checking. I'm against saying "Everything but the GNU FDL or public domain is forbidden". I'm against removing images prematurely because they *might* be protected. There is no analogy to fair use in the free software world.
(Wikipedia also has the great advantage of incorporating hundreds, if not thousands of authors world wide. Cameras are cheap. If there is a serious dearth of pictures, we should organize a project to have more of our authors go out and take pictures, and work to aquire permission to use copyrighted pictures where this isn't possible.)
[Wikipedia-l] Wikipedia photo squad? Erik Moeller wikipedia-l@wikipedia.org Wed, 30 Oct 2002 15:51:29 +0100 (MET) http://mail.wikipedia.org/pipermail/wikipedia-l/2002-October/006804.html
As you can see, I'm all for collaborative content creation. However, it will be difficult to get a nice FDL photo of Clark Gable, because the guy's been dead for quite a while. Incidentally, the current article about Clark Gable uses a copyrighted photo, uploaded by Zoe, a long-time Wikipedian who is also very careful about finding and reporting copyright infringements. Fair use is a common practice on Wikipedia, and I don't think that should change.
Regards,
Erik