[Foundation-l] [Commons-l] Wikimedia Foundation's help to the projects
saintonge at telus.net
Wed Dec 20 00:33:50 UTC 2006
Brad Patrick wrote:
>"You took the words right out of my mouth." Exactly. For those who
>(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
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
>>* 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.
More information about the foundation-l