[Foundation-l] Fair use images

[Gregory Maxwell]

On 3/9/06, Anthony DiPierro <wikilegal at inbox.org> wrote:
> Absolutely.  Fair use should be abandoned in favor of allowing
> CC-BY-ND.  I just found out that CC-BY-ND allows "the right to make
> such modifications as are technically necessary to exercise the rights
> in other media and formats", so use of such a license is much better
> than relying on fair use.

I don't agree at all.  Our goal is to make a free content
encyclopedia. When we speak of free we mean freedom and not cost.  ND
content is not free.

We can broadly split media we would like to include in Wikipedia into
two classes: Illustrations and other media and used to explain or
decorate our articles, and excerpts of works which we have included in
order to discuss the works.

In the first case, barring certain silly corner cases, it is always
possible to have a free version because a Wikipedia contributor could
create one.

In the second case, a replacement is simply not possible because the
replacement wouldn't be the work we were discussing.  So, our ability
to obtain a free copy is entirely at the whim of the copyright holder,
and in some cases it may even be very difficult for us to contact the
copyright holder.

Fair use law (and similar constructs in some other countries) exists
specifically for the second case. The goal of fair use is to prevent
copyright from completely stifling criticism and intellectual
discussion.

It is likely that in the case of 'fair use' the content would remain
fair use for a large majority of the downstream uses for content on
Wikipedia. Furthermore, the decision to include fair use is almost
always a choice between the fair use image and no image at all.   Our
choice with fair use content is to allow it, where it is easy for
downstream users to remove, or have nothing at all.  A downstream user
who can't accept unfree content is in the same position either way. 
Nothing is lost by allowing clear and legitimate fair use, and our
goal of being an encyclopedia is enhanced in a way which is pretty
much not possible without fair use.

By allowing ND images we would be in a position of three
possibilities: no image, a free image, or an ND image which is 'free
enough' to post on our website but fails our goal of producing free
content. If we allow ND images it will specifically be at the expense
of free images. A downstream users who can't accept unfree content
will be in a worse position if we were to make that decision.

> Of course the major disadvantage is that people have to be convinced
> to release their image under the license.  But right now it's not even
> an option.

Who are you expecting to convince?   The impact on the real commercial
value of the work between GFDL and a ND license is minimal. ND
licenses primarily appeal to the vanity of artists who are not
sufficiently satisfied by mere attribution.

The lack of ND images has, no doubt, cost us some images on the short
term... but we could equally say that our failure to illegally copy
current edition Britannica articles has also cost us some level of
coverage.  Fundamentally if someone isn't interested in creating a
*free* encyclopedia then they aren't interested in helping us.   Yes,
we'll sometimes include the copyrighted works of others... but with
fair use we can do that whether they like it or not.

It isn't acceptable to give up freedom to gain a little more quality content.

The loss of natural freedom in the embodiment of ideas has been a huge
burden on our civilization, at least since computing put publication
in the hands of almost every person. This burden will continue until
we unify to remove it; It will continue until we create enough free
content that the artificial social and economic imposition created by
copyright is longer an impediment to the flow of knowledge to the
people who want and need it most.

This isn't going to happen quickly, but it can't happen at all if we
compromise unnecessarily.

We can afford to wait:
  Wikipedia is forever.