[Foundation-l] [Commons-l] Wikimedia Foundation's help to the projects

[Ray Saintonge]

Brad Patrick wrote:

>"You took the words right out of my mouth."  Exactly.  For those who 
>want answers,
>(a) it's complicated
>(b) the answer is "it depends"
>(c) there is no "right" answer
>(d) if there is a "right" answer, it can be challenged
>(e) no, we aren't going to represent you to fight about it.
>
>This is a somewhat flip response, but it is the truth.
>
It may seem "flip", but it's a good starting point.  The first four are 
as clear an expression of the law as one can expect.  The area where the 
law of any country will clearly result in an act being absolutely legal 
or absolutely illegal is very thin indeed.  The grey area in between is 
massive.

I agree with (e) being a policy statement.  The costs involved would 
suggest filling a bottomless money pit.  Since a decision to represent 
anyone would imply a decision about which ones to represent, it is just 
as well not to open that question.  Certainly, representing everyone who 
is sued would be completely impractical.

Even more important, defending any editor would imply accepting that 
editor's IP bias.  May I be so bold as to say that this would not 
represent an Neutral Point of View.  It may very well be that the 
Foundation should observe a policy of strict neutrality in regards to 
the activities of editors.  Thus, it should not be up to the Foundation 
to determine whether there has in fact been a copyright violation.  Be 
that as it may it needs to establish protocols for dealing with such 
situations.  Not all apparent copyright violations that appear in the 
projects are from people who understand what they are doing, or who 
would be willing to take a stand if the situation were made clear to 
them.  The Foundation itself, like the law itself, remains blind to such 
violations until some individual has identified it and raised the 
question.  Even a Trustee is an individual.

When an editor has been notified (most likely on his talk page) that 
there is an apparent copyright violation he should respond within a 
reasonable time (probably a week); otherwise, he will have acquiesced to 
the determination by default.  Different procedures can be established 
for those who claim that they did not receive the notification, but that 
too presumes that they at least knew of the notice from the day that 
they complained that they didn't.

An editor who wants to make a case that his action is within the law 
needs to have the opportunity to do so at his own expense.  That expense 
could be considerable, but it could also be negligible in the case of 
material that is truly orphaned.  Thus when an editor is serious it 
becomes important that the requirements for take-down orders be strictly 
followed.  The Foundation needs to abide by these orders for its own 
protection.  Doing so puts the case firmly in the hands of the editors, 
and not necessarily just the one who made the allegedly offending 
contribution.  If the matter is to go any further there are legally 
defined steps which they must take, failing which the issue dies.  This 
is why too I believe that all formal takedown orders whould be a matter 
of the public record.

The Foundation should, of course, be prepared to defend itself if it is 
sued.  If properly formulated takedown orders have been issued 
compliance with that order is a good defence, as is failure to comply 
with an order that is not properly formulated.  An order which is 
missing key information is not properly formulated.  What would be wrong 
would be for the Foundation to engage in argument or put forth a defence 
(such as fair use) which would be the responsibility of the editors.

If I have limited myself to copyright matters it is not because I want 
to ignore other legal issues.  Parallel treatments are likely 
applicable, and tighter rules may be needed in other issues such as 
libel where the damage can be more immediate.

>David Monniaux wrote:
>  
>
>>Yann Forget wrote:
>>    
>>
>>>For my practical use, is a photograph taken in India in 1908 by a Indian
>>>photographer is public domain in USA (first published in India)? and if
>>>it is taken in 1920? in 1945? and if the photographer is American (first
>>>published in USA)? and if the photographer is from a third country,
>>>England, for example? (Indian copyright law is "public domain 60 years
>>>after publication" for photographs and sound recordings).
>>>
It may not always be easy to establish when the picture was taken, or 
who took it.  The evidence is often circumstantial.  A standard portrait 
cannot be taken after a person's death.  Automobile models in the 
background can be helpful in dating a picture.  A photo album that I 
found in an eBay lot with unidentified photos from Honolulu could be 
dated as no earlier than 1899 because a lawyer whose name appears in a 
window started his business in that year, and no later than 1906 because 
that was the last year in which Honolulu used horse drawn trams.  I have 
no idea whether these photos were ever published anywhere.

>>Two major problems here:
>>* In many cases, copyright questions may be resolved only on a
>>case-by-case basis. For instance, in many countries, copyright only
>>protects "works of the mind" with no exhaustive and clear definition of
>>what a work of the mind is, and it is possible that certain technical
>>photographs are not works of the mind that can be protected by
>>copyright. However, deciding whether this is the case for a particular
>>photograph will entail examining details related to the photographic
>>process, and thus no clear-cut global answer can be provided.
>>
The case-by-case basis cannot be overemphasized.  That is one reason why 
the Foundation cannot put itself in the position of making such 
determinations.

>>* In many cases, what we intend to do simply has not been tested in
>>court. People often mistakenly believe that there are things that are
>>"legal" vs things that are "prohibited" and thus that lawyers can tell
>>us which is which. In reality, there are things clearly legal, those
>>clearly illegal, and things in between for which a lawyer may only give
>>some kind of educated guess of whether that would fly in court (which in
>>turn depends on how well we argue our case in court).
>>
Absolutely!  Some countries do not allow people to put their works into 
the public domain.  Others which do require such a notice to be 
notarized.  Most "free licences", and provisions therin, remain untested 
by the courts anywhere.

>>Both of this clash with the expectations of many of our users and
>>admins, that is, to get black and white "yes / no" answers to legal queries.
>>
Sure!  It all comes down to editors accepting responsibility for what 
they do.  There is no passing on that responsibility to other editors or 
to the Foundation.  That desire reflects an even greater social problem 
outside of the Wikimedia projects.  Those with expectations are going to 
need to get over it, and to learn that lottery tickets do not come with 
a guarantee that you will have the price refunded if you do not win.

Ec