[Foundation-l] Re: Copyright and local liability

[Erik Moeller]

Jimmy:
> Second, for the case of non-bogus complaints (under German law) it makes
> sense (usually) for us to comply with them out of the interest of
> maximal reusability.  This is a huge grey area, but for example the
> German Wikipedia policy of "no fair use" seems sensible to me.

Well, the situation on the German Wikipedia is not very satisfactory in 
this regard, and many editors are increasingly recognizing this. 
Articles which are richly illustrated in English are entirely without 
pictures in German. This is especially true in cases where we will never 
be able to get free content images of the characters, such as cartoon 
series. (Making them available as free content would allow the creation 
of derivative works, which obviously the creators do not want.)

An interesting exception is this one:
http://en.wikipedia.org/wiki/The_Simpsons

Compare:
http://de.wikipedia.org/wiki/Die_Simpsons

Here, the German Wikipedia is trying to be clever by using 3D puppets of 
the Simpsons characters. However, such puppet designs are just as much 
copyrighted as a other picture of the Simpsons cast, so the "workaround" 
isn't really a workaround at all. (Note that Disney has threatened 
bakeries for selling Mickey Mouse shaped cakes and the like.) It 
actually makes the situation worse because we claim that these pictures 
are GFDL and therefore can be used for derivative works and commercial 
purposes.

The simple fact is, you won't get free content pictures of the Simpsons 
cast. Just forget it. You can have photos of the voice actors, of 
course, but getting a picture of Homer Simpson even under CC-BY-ND-NC 
would be difficult. Permission for Wikipedia only might be possible, but 
I think we all agree that this isn't very helpful.

When the copyright policy on the German Wikipedia was originally 
drafted, I suggested making exemptions that are allowed for scientific 
purposes under German copyright law. However, that proposal was narrowly 
defeated by the now established "no fair use" doctrine. A heated 
discussion is underway to again somewhat relax the policy.

I agree with you that we should maximize reusability. There are, 
however, two additional comments I would make on this:

1) Many countries have legal frameworks which are similar, but not 
identical to the US framework. We should generally try to interpret 
local law in a way that is generous to us, as the above demonstrates. 
Insofar as German law has "fair use" like exemptions, I believe it is 
unwise to reject those.

2) We should *never* comply with laws that would violate the spirit of 
Wikipedia. [*] Having no pictures of the Simpsons in a free content 
encyclopedia is forgivable. Removing facts from an article about Taiwan 
because of fear of Chinese censors is not.

This is precisely what worries me about Chinese Wikinews -- that our 
current attitude to it emboldens users in the Chinese Wikipedia who 
would remove facts and justify it by citing the threat of censorship for 
the whole Wikipedia, or worse, justify it by citing your comments on 
this. Defying censors needlessly is indeed wrong, but so is appeasement 
if it affects our core principles.

I am concerned that the proliferation of chapters will contribute to 
more conservative legal interpretations, as people will feel they need 
to prevent the organization from being held liable (even if its bylaws 
explicitly disclaim liability). I think the above goals, if we agree on 
them, should be formally written down somewhere (perhaps the WMF bylaws, 
and a general chapter policy) and be introduced into the discussion 
process of any new chapter.

Erik

[*] Note that I did not say "foreign laws". What we should do if US law 
made Wikipedia's existence impossible as it is today is an interesting 
question. I personally believe that in an extreme situation, a new legal 
home for the project and its organization should be sought.