[Foundation-l] Let me ask this a third time WAS: EDP: US servers loophole?

[Andrew Lih]

On 4/11/07, Erik Moeller <erik at wikimedia.org> wrote:
> On 4/11/07, Nyenyec N <nyenyec at gmail.com> wrote:
> > As I tried to describe before, there are classes of images that we
> > cannot use if we hold ourselves to Hungarian copyright law (e.g. movie
> > posters fall into this category I believe). Currently HuWiki uses them
> > based on the fact that the server is located in the US and the US
> > "fair use" doctrine does not prohibit the distribution of such images
> > when used properly.
>
> You should follow Hungarian law as well, and that is indeed the intent
> of the policy.
>
> The very obvious and unavoidable consequence of not doing so is that
> contributors who are based in Hungary (presumably the vast majority of
> your editors) are liable for actions that would be copyright
> infringements under Hungarian law. Where the servers are based is very
> clearly irrelevant if you want to take action against individuals.  Do
> not underestimate this risk; it has happened before, though typically
> for allegations of libel or personality rights violations.
>
> Secondly, by only following US law, Hungarian courts could reach a
> judgment against the Wikimedia Foundation. This could result in legal
> demands to limit access to Wikipedia, or practical actions to do so.
> It could also result in judgments against persons outside Hungarian
> territory. Consider also that 4 members are EU citizens. These risks
> may seem less serious, but they need to be taken into account.

You might want to put IANAL before these thoughts, just to be clear.

> There are cases where we may want to deliberately ignore national laws
> if they are very clearly immoral, and accept the consequences. We are
> ignoring China's censorship laws (or, more accurately, regulations),
> for example. Policy exceptions for a few non-free images are not worth
> picking a fight over, though.

Correction: "China's censorship laws" apply only to servers and
entities based in the People's Republic of China and are exercised
through Internet Content Provider licenses issued within the country.
Wikimedia/Wikipedia servers in US/NL/KO are not subject to this, so
there is no active "ignoring" or violation of such laws..

-Andrew