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

[Ray Saintonge]

Andrew Lih wrote:

>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.
>
For all that laws are subject to interpretation.  A perfectly valid 
statement requiring that we follow the law is not always straightforward 
in its interpretation.  We don't need to find the most restrictive 
reading of the law, and apply that against ourselves.  It is generally 
not illegal to apply a more favorable reading of the law.  When applying 
the law we must also consider various risk factors in a cost benefit 
analysis.

Ec