[Foundation-l] Re: [Juriwiki-l] Re: Copyright complaints

David Newton davidp.newton at gmail.com
Tue Feb 14 22:24:35 UTC 2006

We have a really significant problem here. As with AFD copyright is a
system-wide problem that needs to be addressed.

Ray Saintonge wrote:

>One needs to understand the decision making dynamics around the wikis.
>A lack of responses  does not equate to disinterest or agreement.  Most
>people don't feel like carrying on discussions ad nauseam when it
>doesn't affect what they are personally doing.  Most policy discussions
>are inconclusive and very, very tedious.  When you change a "policy"
>page, most people don't notice it.

I fully understand the decision-making processes around the wikis
since I have been an active participant with this project for over two
and half years. In some circumstances, especially when care has been
taken to let people know about what is going on then a lack of
response certainly DOES equate to disinterest. In a decision situation
it can also be interpreted to mean agreement.

This is an immensely serious issue since it exposes Wikipedia,
Wikisource and the Wikimedia Foundation, not to mention the
contributors to the sites, to legal liability. I wanted a definitive
statement over copyright and I did not get that statement.
Consequently I went the wiki way and tried to get a consensus over
what to do. Besides, the opinions of "most" people weren't what I was
after. I was after a policy statement about copyright on a Wikimedia
Foundation project. That concerns the board and they should be (and
for the most part are) directly concerned with matters of high policy
like this.

>>I suggest that you be the one to make the policy clear on Wikisource.
>>I also suggest that you be the one to tag the hundreds of UN
>>resolution copyvios on there for deletion. If this is to be the
>>confirmed policy I will remove work that I have done on starting to
>>put some British legislation online, which is under Crown copyright
>>and hence incompatible with the GFDL. Prepare for a storm of protest,
>>particularly about the UN resolutions (although I happen to agree that
>>they are copyvios in that case).
>>If Wikisource is not to be a repository of works that are freely
>>reproducable, but not compatible with the terms of the GFDL then I
>>think starting something on Wikicities would be in order. I originally
>>intended to use the Wiki format to create copies of the original
>>legislation online and then create amended copies of them as they
>>appeared at various points. Since the promised British Government
>>statute law database is currently mired in developmental purgatory
>>that seemed a very useful thing to do and perfect for Wikisource.
>The copyright status of statutes is highly debatable.  The US believes
>that its own statutes should be freely reproducible, but this is not the
>case in many other countries.  I am not familiar enough with the case
>law for this in those countries to make an informed comment on how such
>arguments would turn out.   Suffice it to say that there is an important
>public policy issue involved that would not be relevant to most other
>allegations of coyright infringement.

You may think that there is something that is highly debateable about
the copyright status of foreign statutes but that does not necessarily
make it so. The status of Federal statutes is clear in USC 17. Case
law deals with state and county statutes in the US. Applying that case
law to foreign statues is very likely incorrect. Remember that in
common law jurisdictions courts very often make distinctions when
ruling on similar cases that, for example, differ in having a private
individual suing a private individual and a private individual suing a
public authority on much the same facts of a case. Such actions can
cause big problems. When talking about foreign and domestic statute
copyright status we are talking about things that would have a strong
chance of being distinguished by a court.

Other countries have public domain laws etc, and some, like the UK,
have essentially waived copyright in statutes. That does not mean that
those countries that do claim copyrights on their laws cannot enforce
those copyrights in the United States. One of the fundamental bases
for the case law on US statutes is to let all people have access to
the law that governs them. When in the United States and talking about
foreign law that basis does not exist.

>To say that these activities are wilfull violations is an improper
>accusation.  There can be no wilfull violation when there is significant
>doubt that an action is a violation in the first place.

Yes there can be wilful infringement if the people concerned have been
warned about what they are doing. Someone can believe that there is
significant doubt over their actions when in fact there is no doubt at
all. If that person is warned about their actions and still continues
those actions that takes things to a whole different level. I say
there is wilful infringement because the people concerned have been
warned about their actions likely not being fair use and have still
continued to take those actions. They have also been told why those
actions are likely not fair use.

In the same vein if I were to continue to post Crown copyright
legislation on Wikisource after the clear policy statement of the
board I would be in wilful violation of that policy. I might think
that there was significant doubt over my actions, but there would not
be in reality.

I hope the UN doesn't come after us for posting texts of resolutions.
I don't know how likely to sue they are. If they do come after
Wikisource and those who posted the resolution texts then it cannot be
said that those posting the texts were not warned.

David Newton

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