[Foundation-l] Help requested on Commons copyright woes

[Gregory Maxwell]

On 7/20/06, Brianna Laugher <brianna.laugher at gmail.com> wrote:
> * To what extent are we bound by local laws and to what extent are we
> bound by Florida's laws (as the home of our servers).
[snip]

1) Uploaders should obey their local laws.
2) Content on the site should obey laws in Florida.
3) As a project with international goals an impact our content should
be as widely useful world wide as possible and thus be as free as
possible in every place with sane laws.

The content commons should host should be only content which passes
under each of those three broad areas.

German "right of panorama" work obviously passes (1).
In the US material which is permitted under German right of panorama
would be okay because the inclusion of copyrighted works is in
incidental inclusion, making the content okay where our servers are
(2).
And most countries have some kind of established common sense
principal, furthermore almost no image of an urban public space is
possible withone some degree of incidental inclusion... So whatever
problems an image might have in some country no other simmlar image
would be free of them. (3)

> * There was recently a discussion about the "Against DRM" license (
> http://commons.wikimedia.org/wiki/Template:ADRM &
> http://commons.wikimedia.org/wiki/Commons_talk:Licensing/ADRM  ).

I haven't yet read the discussion, but I can't see with a surfance
glance why we would forbid this license. Although the license appears
to be fairly poorly written it appears no more restrictive than the
GFDL.   The wording is a bit unclear since it doesn't disambiguate use
in DRM apps with DRM distribution, but the intent seems clear enough.
Have we attempted to contact the authors to get them to make the
license more clear?

A copyleft license is somewhat pointless if it doesn't prohibit people
from removing the freedom via technological measures.  I understand
that some people involved with Wikimedia are strongly against
copyleft, but their personal wishes shouldn't be setting our policy.

> * Logos. This has still not been sufficiently resolved, in that there
> is not a clear enough solution that everyone is aware of. Do we
> consider copyright independently of trademark status? Is that even
> possible? (

Yuck.  Cant we just leave these images for the projects to host locally for now?
We're not even near mastering copyright yet... Trademark is an even
more fun ball of yuck.

> * "Agencia Brasil" license  (
> http://commons.wikimedia.org/wiki/Template:Ag%C3%AAncia_Brasil ) also
> has been debated several times. Related to the wider issue of, "if a
> website says "these images can be used freely, can we interpret that
> as allowing commercial use and derivative works, and thus
> Commons-compliant? Or do we need to check each time whether they
> intend to allow these specific rights?"

In American english "You may use this image" does not imply that you
can grant others unlimited redistribution rights, and the right to
make derivative works.  Perhaps if someone said "you may use" with the
full knoweldge of who we are and what we do...  but never as a general
permission on a website.

This isn't a new position.

> * Photographs of commercial products such as: Pokemon/Star
> Wars/Simpsons toys, box of Pringles, also people in dress-up outfits
> of characters such as Lara Croft/Chewbacca. Eloquence has raised this
> before ( http://commons.wikimedia.org/wiki/Commons:Deletion_requests/Archives10#Various_Star_Wars_pictures
> ) but I doubt even he would think this has been satisfactorily
> resolved.

Copyrighted sculptures are an issue... And in theory that includes
pokemon dolls and the like.

Sad as it is, if we want to be confident that our content is free we
must not include these things except incidentally.

However, I feel these are the least of our problems right now... our
effort would be better spent on other images.


> * US presidential portraits (
> http://commons.wikimedia.org/wiki/Commons_talk:Licensing#Portraits_with_unclear_copyright_status_from_the_U.S._Federal_Government
>  kind of got split up and was carried over from a debate on en.wp
> anyway).


> * Photographs of art - if the artwork itself is old enough to be PD,
> is it true that any photograph of the art itself is also PD, but any
> photograph of the art in its frame or on a wall  is not? (Because it
> is 3-D, not 2-D anymore)

Since I forgot to mention it before, I am not a lawyer. This is my
personal view. It has more to do with what I think our posisiton
should be irrespective of the law and what I worry the law might
become rather than what it is.

It depends.   If it is a mechnical reproduction, suchs works would be
free under US law due to Bridgeman v. Corel.

It's not clear to me that Bridgeman v. Corel would actually stand if
someone tried to apply it to, for example, works galleries publish of
because most of the time such works are not mere mechnical
reproduction  but require substantial artistic and technical decision
making (try getting cobalt containing watercolors to come out right on
normal film or a normal CCD sensor.. YUCK).

As much of a problem as the above may be for us, it's not the worst of
it:  Simmlar cases to Bridgeman v. Corel have come up in the UK and
the decision has been exactly the opposite.

I'd be much happier if we had people sneaking into galleries and
taking pictures (no flash please)... I don't have confidence that a
dependance on Bridgeman v. Corel will be good for us long term.

Like above I don't think this is (yet) the biggest of our problems.

> * Personality rights. What permission is required of people
> photographed, if any? (eg "Can I take your picture"/"Can I publish
> your picture on a public database that allows commercial use?") Is
> this a copyright concern or a "other law" concern that we don't need
> to worry about? What if the people aren't recognisable (and how can
> you decide that anyway?)? (
> http://commons.wikimedia.org/wiki/Template:Deletion_requests#Image:Kind_in_Nord.C3.A4thiopien.jpg
> is a current one, also some of the "visible thong" pictures on
> http://commons.wikimedia.org/wiki/G-string have been nominated before)

This is something we need to do something about... We should at least
propose a standard model release for Wikipedian photographers to
use...

Without a releas photographs with identifyable people are not free
content in the US.

> * Stock xchange images (current:
> http://commons.wikimedia.org/wiki/COM:SXC villy also wrote
> http://commons.wikimedia.org/wiki/User:Aurevilly/sxc.hu_%282%29 but it
> seems to have stalled). What should be done with the existing images
> (which are intentionally not categorised in any way as such, so they
> might be hard to find), what do we have to do (if anything) in order
> to use current images?

They are easy to identify by searching for the external links.
I'm in the process of trying to contact all the SXC authors, but keeps
blocking my IP. :)

> * Flickr allows users to change the licenses on their images with no
> external notice. So CC-BY or CC-BY-SA images uploaded to Commons might
> later appear to be CC-BY-NC-ND or even "all rights reserved". This is
> an increasing problem. Obviously Flickr needs a "history" tab, but
> until then...? (current discussion at
> http://commons.wikimedia.org/wiki/Commons:Village_pump#Flickr_allows_license_changes
> )

What is worse, is that uploaders on commons simply get them wrong
fairly often.. So it's hard to take a high ground on the subject.

When it comes down to it,  these people don't have a contract with
us.. we've compensated them not a lick... they are completely unaware
of our use.  As a result our position is weak.

It's simply not possible for a person to accidently free their work
(i.e. by making a wrong selection from a drop down, and not catching
it before a Wikimedia commons scavenger finds it).    If someone
protests we can, we do, and we must remove the work.  It is the only
ethical thing to do (or do we want a reputation as a bunch of jerks
trying to rip creators off), and it is quite possibly the only legal
thing to do.

This is just another reason that we should reduce our reliance on
image scavengers and instead ask people to upload their works directly
and with full knoweldge of the consiquences However, people seem far
more interested in running bots to scavange rather than sending out
email invitations to join our effort.  One pumps your contrib count
and makes you look good, the other brings you no positive attention
but helps the project more.

> I really feel distaste at the idea that the Foundation would avoid
> involving itself in such questions in order to avoid legal
> culpability.

Why?  None of these are cut and dry.  If we limit ourselves to only
the images that are zero risk we would have a LOT less content... and
we'd have to reject a lot which will be free for all meaningful
purposes.     When it comes down to it, most of these things can only
be decided in a court, and courts rule in strage ways.    An official
statement by the foundation would be risky and without much gain...
after all, what would a statement really accomplish that we couldn't?