[Foundation-l] German law and wikiquote

Ray Saintonge saintonge at telus.net
Wed Feb 15 08:45:23 UTC 2006

Erik Moeller wrote:

> The legal study ordered by the German Wikimedia e.V. is mostly a 
> summary of the current German law. While that has value in itself, 
> those who have followed the relevant discussions will not find much 
> new information in it. A more interesting study would be one of 
> loopholes and ways to do an end run around copyright and trademark law:
> - How to cheat museums which try to steal public domain content by 
> forbidding photographs.
> - How to get coat of arms images under a free or semi-free license.
> - How to phrase Wikiquote pages so that they fall under the fair use 
> equivalent of German law.
> - How to use the fact that Wikimedia servers are in the United States 
> to our advantage.
> In short, instead of asking "What does the law say?", we should ask 
> "How can we do what we want to do?". If the answer is "We can't", then 
> we should actively work to change the laws to our advantage. If we 
> want to survive, we need to be creative in the way we deal with the 
> law, especially in Germany, where, tolerated by the government, a 
> substantial subset of lawyers are criminals who terrorize grandmothers 
> and 15-year-old webmasters with illegal demands for money (google 
> "Abmahnung").
> If your perception is that, legally speaking, you are standing on a 
> small island, then you will not even notice as the protections that 
> the law grants you are eroded away by the ocean around you. We have to 
> actively claim the ground that rightfully belongs to us, and not let 
> lobbyists and corrupt governments get away with making information 
> ever more proprietary. 

This kind of ultra-concervative approach to the law by lawyers does not 
surprise me.  A lawyer that is truly a benefit to his client should be 
looking for ways that the law can be interpreted that will help his 
client to achieve desired goals within the law.  Simply being a parrot 
that quotes the law has a very limited value.  It's not even a matter of 
doing an end run or looking for loopholes, but of looking at how the law 
can serve us as it is.

I would not call taking surreptitious photographs in museums "cheating"; 
I would be more inclined to characterize the activities of those museums 
in that way.  The rules that they might have about taking photographs 
are not a copyright issue except in a few limited cases where they 
actually own the copyright .

Using our funds to lobby for changing the law can affect the tax-free 
charitable status in some places, but using the existing law to our best 
advantage should come first anyway.

Your general conclusion about law is accurate.  The ones who benefit 
from the law are those who play it close to the edge.  Exciting new 
ideas such as Wikipedia itself have not progressed by being more safe 
than sorry.  Gold medallists in sport are the ones who take that extra 
chance; they know that they could crash but are not paralyzed by that 
fear.  It just takes a little courage.


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