[Foundation-l] Re: Copyright issues...walking on thin ice

[Michael Snow]

I tried to send this message yesterday, but later got a message back 
that mail delivery failed, so I'm trying again.

Jimmy (Jimbo) Wales wrote:

>Michael Snow wrote:
>  
>
>>Clause 7 of the GFDL is predicated on aggregating the GFDL content with 
>>"separate and independent documents or works". Are images actually 
>>separate and independent?
>>    
>>
>Except in some hypothetical cases which are hard to even dream up, I
>would say yes, absolutely.  The authorship of the image is different,
>
Yes, but so is the authorship of various portions of text in most 
articles. The cumulative effect of different edits does not fragment an 
article into tens or hundreds of separate and independent documents.

>the process by which the image is authored is completely different,
>
No argument here.

>it is stored in a separate file "in or on a volume of a storage or
>distribution medium",
>
Not when the distribution medium is print, at least not if it looks like 
the standard layout used in most of our articles that have pictures. 
Facing page illustrations might be different, but when the image and 
text are on the same piece of paper, I'm pretty sure they're being 
stored in the same place.

>It is hard to see how the image is somehow
>a "derivative work" of the article or vice-versa.  They are simply a
>compilation.
>
My contention is not that the image is a derivative work of the article 
text, or that the text is a derivative work of the image. You might say 
that the end result is an article that is a derivative work of both the 
text and the image (here I'm using "derivative work" in a general sense, 
not trying to analyze whether that term applies as used in copyright 
law). But the real question is whether Article Foo, illustrated by Image 
Bar and Image Foobar, is one Document under the GFDL or three. I think 
that's not clearly defined by the license itself, and when the meaning 
of a term in a legal document is not clear from the document itself, the 
law typically relies on ordinary meaning and usage. In ordinary usage, I 
would say that Article Foo is one document, not three, especially given 
how we currently use images.

Is there a way to keep Article Foo as three Documents under the GFDL? 
Possibly, but I don't think our current practices do much to keep the 
works separate and independent, as required for Clause 7. Putting 
licensing information in captions would certainly help, since without 
that there's usually no indication when looking at the article that the 
image is not covered by the license as well (I'm quite aware that we 
cleverly say "all text", but that's hardly enough to alert many readers).

>>And once you get to print, I have a _very_ hard time buying any
>>argument that the image which illustrates an article is somehow a
>>separate and independent work from the article text.
>>    
>>
>Can you point me to any case law on this point?  Law review articles?
>
Not off the top of my head. Given that copyleft in general has not been 
around long enough to generate that much legal scrutiny, I'm skeptical 
of finding much on such a specific question. But if you would like me 
to, I can try and research the issue further. It may be a little while 
before I get a chance to visit the law library, though. Again, given the 
fact that "separate" and "independent" are not defined specifically in 
the GFDL, I'm simply reasoning based on the ordinary meanings of those 
words.

>Consider the implications of your argument for traditional licensing
>of images for book publications.
>
>Imagine the following scenario.  I write a book, under traditional
>copyright.  For my book, I license some images from you, under a
>traditional licensing scheme for such, i.e. you tell me that I can use
>the images for my book, only for my book, and for no other purposes.
>
>After the book has been published, I decide that I want to license a
>portion of the text to a magazine.  Can you then object, saying that
>the text is now a "derived work" of the photograph?  That the two are
>no longer separate and independent?
>
I think the analogy to traditional licensing schemes misses the point. 
You would have the copyright to your text in this situation, and can do 
whatever you want with the text by itself, in the same way that anything 
I write on Wikipedia, I have the right to publish elsewhere, under a 
different system than the GFDL if I so desire. And the question of 
whether images and text are "separate and independent" is significant 
specifically because that's the language used by the GFDL. Unless the 
traditional license says something along those lines, I don't think the 
question is relevant to this hypothetical scenario.

--Michael Snow
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.wikimedia.org/pipermail/foundation-l/attachments/20040812/460e4a2a/attachment-0001.htm