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

[Ray Saintonge]

David Newton wrote:

>We have a really significant problem here. As with AFD copyright is a
>system-wide problem that needs to be addressed.
>
Try not to make it a bigger problem.

>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.
>
For the most part people will admit that they do not have enough 
background in copyright law to take a meaningful position.  You can't 
properly call something a "decision situation" when very few people are 
able to participate.

>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.
>
Asking for a definitive statement is asking for the impossible.  The law 
is simply not as clear as you believe it to be.  The best policy would 
be to use common sense with support for neither flagrant copyright 
infringement nor copyright paranoia.  As a whole the Wikimedia 
Foundation needs to look after its own interests to be sure, and it 
needs to determine how much risk it is willing to accept.  I suppose 
that accepting that there is a wide grey area is a form of policy 
statement.  How wide that grey area should be will vary according to 
specific circumstances; it's a pragmatic approach.

As for individual contributors, they need to accept the proper 
consequences of their actions on an individual basis.  I accept the 
legal consequences of anything that I post, but then I whatever I 
contribute is done in full consciousness of the legalities involved.

>>>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.
>
If iit wasn't debatable we wouldn't be having this debate.  I know that 
common law courts make many distinctions when they rule, but your 
confused speculation about what this means does not help to resolve 
anything.

>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.
>
Have any such foreign governments even tried to eforce this kind of 
copyright in US courts, or are you just speculating again?

>>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.
>
This is sophistry.  Warned by whom?  What makes your opinion that a text 
is protected any more correct than someone else's opinion that it 
isn't.  If once you have "warned" them they review the situation and 
come to a different conclusion, why should your opinioin be the one to 
prevail?

>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.
>
Until there is such a "clear policy statement" there can be no wilful 
violation of WMF policy, but that is a different issue from violation of 
law.

>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.
>
If you are not personally posting the texts you should have nothing to 
worry about.  I'm sure there is plenty enough for you to do without 
violating your own rigid interpretation of copyright law.  I only 
contributed one or two of them some time ago, and I assure you that I 
will not use lack of warning as an excuse.

Ec