[Foundation-l] RfC: A Free Content and Expression Definition

[Anthony DiPierro]

On 5/4/06, Delphine Ménard <notafishz at gmail.com> wrote:
> On 5/2/06, Erik Moeller <eloquence at gmail.com> wrote:
>
> > While en.wp has initially been extremely liberal in its application of
> > "fair use", a few other Wikipedias prohibit it entirely. I think it's
> > time that we work towards fair use / fair dealing policies on all
> > Wikimedia projects. This is going to be a bit tricky as we have to
> > distinguish between the law that applies to the uploader of the work,
> > and the law that applies to the Wikimedia Foundation which is hosting
> > the work.
> >
> > I would appreciate a legal opinion on how to best achieve this - my
> > own feeling is that the fair use policies of a project like de.wp or
> > nl.wp should explain the legal situation in countries where these
> > languages are predominantly spoken, while allowing the freedoms
> > granted under U.S. law.
>
> Until we have an answer to "are the authors or is the Foundation
> ultimately responsible for the content of the Wikimedia projects?" -
> which I believe we will only ever get if we go to court, I do not
> believe there is a clear answer, legal or not, to the question.
>
> My take on this is:
>
> -FL law comes first
> -You must respect whichever local law is yours (country of residence)
> when you edit Wikimedia projects.
>
> In any case, (and maybe unfortunately) editing Wikimedia projects
> which are physically based in Florida *does not* grant you *more*
> rights than those you have in your own country.
>
> Internet is not a lawless zone.
>
>
> Delphine
>
> --
> ~notafish

Sarl Louis Feraud International v. Viewfinder Inc. provides some
guidance about this issue.  If you're distributing copyrighted
material to residents of France, then the French courts can find you
liable for copyright infringement.  As long as you never go to France
or have any assets there though, that ruling is meaningless unless
someone can convince a judge in your country of residence (or
somewhere you have assets) to enforce the ruling.  According to the
Berne Convention countries are supposed to enforce rulings from other
jurisdictions which are members, however for example in the United
States they won't do so if that ruling violates the Constitution. 
Fair Use is a Constitutional requirement in the United States.

I really think the question has to be defined more specifically
though.  What is Wikipedia trying to accomplish?  Are they trying to
obey the laws of the countries they operate in, or are they willing to
break those laws if they can get away with it?  Is it enough to
protect contributors identities so that they can get away with
breaking the laws of their country, or does Wikipedia insist that
everything a contributor does must be legal?  Finally, though it
wasn't mentioned, what about redistributors, including redistributors
in other countries?

It'd be nice to just say that Wikipedia should be legal everywhere,
and maybe that can be accomplished wrt copyright law, but go outside
of copyright law (and consider China, for instance), and it's obvious
that Wikipedia should not attempt to follow the law of every single
jurisdiction in the world.

Anthony