[Foundation-l] Help requested on Commons copyright woes

[Ray Saintonge]

Gregory Maxwell wrote:

>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.
>
So how do we define "sane" law?  And how do we know whether uploaders 
are obeying their local laws?

>>* 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.
>
Trademark infringement depends even more on what you are using the 
material for, or whether you are using the design to promote your own 
business.  As long we're just using it to illustrate the fact that it is 
that company's trademark we are safe.

>>* "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.
>
The statement was in Brazilian Portuguese, not American English.  Where 
are you granting these rights yourself?  All you are doing is conveying 
the source's position on the rights the user has.  If no restrictions 
are specified about the usage those restrictions do not exist.

>>* 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.
>
What the law might become can indeed be quite worrisome.  See Peter 
Suber's SPARC Newsletter at 
http://www.earlham.edu/~peters/fos/newsletter/03-02-06.htm#collateral  
He mentions WIPO's proposed Webcasting Treaty:

> A draft treaty now before WIPO would create a new level of protection, 
> above and beyond copyright, for "webcasters" --anyone who sends images 
> and sounds "at substantially the same time" over the internet.  The 
> proposal would let webcasters block the copying and redistribution of 
> the webcasts even if the copyright holder had consented to OA, even if 
> the webcast content had a valid Creative Commons license or 
> equivalent, even if the content was in the public domain, and even if 
> the content was legally uncopyrightable. 

I don't know if he's just being alarmist, but we don't even have an 
article on this.  Don't think that just because the people we here tend 
to associate with are supportive of free access to information means 
that there are no people who are just as dedicated to accomplishing 
exactly the opposite.

When one frames what our position should be irrespective of the law one 
saves a lot of confusion by not expressing it in terms of the law as it 
might already exist.  We begin with a position that is both ideal and 
reasonably fair, and only after we have done that do we compare that 
position with the existing laws to see if our ideal can in any way be 
accomodated.

>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.
>
I agree.

>>* 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.
>
Again, common sense should prevail.

>>* 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.
>
Costant reference by jargony abbreviations doesn't help.

>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.
>
Dutch courts have upheld CC licences.  These are licences, not contracts.

>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.
>
Acting ethically does not depend on legal compulsion.

>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.
>
A person should be held just as responsible for the actions of his bots 
as for what he does directly.  If you let your dog off the leash and he 
digs up somebody's flower garden (or worse) it's you that pays the fine 
not the dog.  Letting bots off the leash should be no different.

>>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?
>
Individual responsibility!  Otherwise there are problems at both ends of 
the scale.

Ec