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

Ray Saintonge saintonge at telus.net
Thu Feb 16 14:39:34 UTC 2006

David Newton wrote:

>Matt Brown wrote:
>>>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.
>>Some points:
>>1) We're dealing with a matter of copyright law and not a basic,
>>everyday one.  On legal questions where there isn't a huge amount of
>>precedent and case law, you can't get a definitive answer.  Thus, not
>>many people feel qualified to comment on what the legal situation is.
>>2) The Foundation, I'm sure, does not want to expose itself to
>>liability by giving legal advice to contributors.
>I wanted a definitive statement over the copyright policy of the
>Foundation. Angela provided that statement on this mailing list a
>couple of days ago. The position is that public domain, GFDL and
>GFDL-compatible text are what is allowed. That is a clear position and
>one that, if followed, will not land the person in trouble at all.
That's fine.  Nobody's arguing against that, only against your distortions.

>We then come to the area of fair use. The problem I have with fair use
>on Wikisource is that Wikisource reproduces the whole of a work by
>definition. One of the tests for the likelihood of a work being fair
>use is that the reproduction is not a "significant" amount of the
>work. The whole of a work is certainly a "significant" amount of the
>work. This is not like an artistic work where a reduced resolution
>version can be used and where such reproductions have been found to be
>fair use in things like Bridgeman vs Corel. When reproducing the whole
>of a literary work that work is reproduced with full fidelity. The
>typographic setting of the work is not relevant here since the US does
>not have typographical copyright. Wikisource is also something that
>people are encouraged to make use of for commercial purposes. Again
>that's one of the major indicators for finding something as fair use
I guess that you argue against fair use, because you feel it's an easier 
argument to make.  The fact that no-one has been using that argument 
seem irrelevant to you.

>Fair use, by design, is a legal grey area. I cannot claim to be a
>copyright lawyer and an expert on the precedent in the US. What I can
>claim to be is a layman with an above average knowledge of copyright
>law and also someone who is alarmed by the misunderstandings and
>deliberate flouting of fair use that go out on Wikimedia sites. This
>UN situation is a classic example of that.
Again who is using the fair use argument?  Failing to go along with your 
misunderstandings does not equate to "deliberate flouting"

>The UN resolutions are copyrighted under US statute law. 
That's highly debatable.

>Therefore in
>order to use them on Wikisource either the permission of the UN must
>be received or fair use must be relied upon. I don't know of anyone
>who has approached the UN for permission and given the terms of use on
>their website I doubt that they would be willing to license their
>resolutions under a GFDL-compatible license. That leaves fair use and,
>as I indicated in the previous paragraph two of the major indicators
>for finding that a use is fair use are not relevant for this use of
Then quit pretending that that is the argument that is being made.

>With respect to the Crown copyright material I know that OPSI are not
>willing to license things under a GFDL-compatible licence as they were
>asked about this by someone at Wikipedia. Since fair use does not
>exist in the UK (where the OPSI servers are located) it cannot be
>relied upon as a defence for reusing the content and the materials
>must be removed from Wikisource. 
The UK does not have "fair use" but it has "fair dealing".  See sections 
28 to 31 of the UK Act.  Nevertheless I am specifically not commenting 
on the copyright status of UK statutes.

>I don't know whether the UN servers
>are in the United States, but I suspect they are. If that is the case
>then fair use does exist as a defence for use of the copyrighted
>material, I would say it is a weak defence in this case given that two
>of the indicators for finding material as fair use are not present.
Please stop insisting that your opponents are using a fair use argument 
when they aren't.

>All in all when creating such a high visibility site as Wikipedia and
>its allied sites I would say that we are better off erring on the side
>of caution when it comes to copyright law. If that means we cannot get
>pictures for articles or use certain source texts then so be it. Only
>where there is clear precedent for something being fair use, and the
>case concerned can be cited in the guidelines for copyright, should
>fair use be relied upon.
It seems more that you would err on the side of paralysis than caution.  
There are fewer situations where a public policy argument would apply 
than a fair use one, but clearly making the law broadly available is one.


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