[Foundation-l] Clearing up Wikimedia's media licensing policies (some important points)

[Gregory Maxwell]

I'll be replying to many people at once...

Claudio Mastroianni wrote on Thu Feb 8 10:38:25 UTC 2007:
>We found it (images with permission), WMF told this is not valid. We
>have no alternatives. Saying the "the italian is free to develop an
>exemption policy", then, is false.

I'm sorry, but with permission is by no means an alternative.  Under
the "fair dealing" (or in the US "fair use") laws of most countries we
can use works even with the explicit disapproval of the copyright
holder, we can use works with whom we can not contact the copyright
holder, and most importantly *this ability is not limited only to us*.

Because out full goals go beyond running a website for the world to
look at, we must find solutions better than "with permission".

Claudio Mastroianni wrote on Thu Feb 8 11:27:21 UTC 2007:
>Il giorno 08/feb/07, alle ore 12:08, Gunnar René Øie ha scritto:
>> Because if the fair use claim is valid and strong enough, then
>> commercial re-users can use those fair-use images.
>Not in Italy, and in other coutries too I think.
>Gatto Nero

***Your claim that Italian copyright law does not permit fair dealing
is incorrect: ***

Under Italian law you are permitted 'abridgment, quotation or
reproduction of fragments or parts of a work for the purpose of
criticism or discussion, or for instructional purposes.'
(see Italian Copyright Act Article 70; Nimmer and Geller (1998-),
Italy, §8[2][a])

Note that parody is not permitted.  But since Wikipedia should not be
performing parody, this difference is likely not material.

You will be hard pressed to find a country which does not permit
excerpting for scholarly purposes, if not by the written law then by
the actions of the courts.  Such an exception from copyright is
utterly necessary for a free society.  While a few such places might
exist, it is not in  Wikimedia's or that world at large's interest to
allow the policies of nations which do not respect the basic
intellectual freedom of their citizens to have too much influence on
our policy.

Jon Harald Søby wrote on Thu Feb 8 12:00:15 UTC 2007:
>Wrong. If the fair use claim is valid and strong enough, then
>commercial re-users can use those fair-use images IN THE USA.

It takes some really selective reading to draw this conclusion from
the orignal post: Whenever it mentions "fair use" it also specifies
[[fair dealing]] which is the name of the same general concept in the
law of many other countries.

We can't expect, nor should we want, the board to micromanage every
detail of every action of ours.  If we read the rationale of the board
post it seems clear to me that in order to meet our mission our usage
should conform to the "fair deailing"/"fair use" available in most of
the world.

More than half of the Wikimedia board is from outside the United
States.  You are picking the wrong organization to blame of US
centricism.

Andre Engels wrote on Thu Feb 8 12:21:46 UTC 2007:
>Sorry, I don't think I made my point clear. What I meant was:
>"If there is a Wikipedia page with a fair use image, and the presence of
>that fair use image is (because of a strong enough fair use rationale) no
>impedence to further copying of the Wikipedia page, then having an ND image
>instead of the fair use one would definitely not be an impedence. Yet
>including the image as fair use is allowed, but including the ND image is
>not.

When we permit an image as "fair dealing" or "fair use" we do not care
what other licenses it is available under. As such, ND images are
permitted when they would be permitted as "fair dealing" / "fair use"
images no matter what their license.  This is made clear in the boards
statement "Some works that are under licenses we do not accept (such
as non-derivative) may  meet these conditions."

This sort of thinking about the handling of non-free licenses is not
new, Jimbo posted about it years ago.

The underlying rationale goes something like this:  When we talk about
a machine, we can show a picture of it to help people understand, when
we talk about a place we can show a picture of it to help people
understand... some times we will talk about a copyrighted work,  and
we should be able to show a picture of it to help people understand
what we are saying. Copyright would prevent us, but the lawmakers or
courts of most countries have realized that stifling public discourse
in this way would be a terribly blow to freedom and the ability to
educate the public.  So the law permits it in many places... and we
tolerate it because we have no other choice if we are to do a really
good job of educating people.

There mere existence of a ND license for a work is substantial
evidence that we may have another choice... It is evidence that we can
probably reach the copyright the copyright holder, and it is evidence
that they are willing to consider terms that differ from "all rights
reserved".

If they are releasing under and ND license, it may even be because we
already talked to them and failed to help them understand that a basic
strong copyleft licenses will take care of most of the things that
they really care about, such as preventing the fraud of someone making
new versions and blaming them on the original author.. Whenever we see
ND (and NC alike) we are seeing evidence of our own failure to
advocate truly free licenses.

David Strauss wrote on Thu Feb 8 12:42:52 UTC 2007:
>Yes, but I would want to see the ND license *and* the old fair-use
>rationale side-by-side for the image.

I would rather we not mention the ND license for an image that we use
as fair use. By doing so we would be sending the wrong message: That
ND licenses are somehow acceptable to us, even if only
conditionally... that they aren't usually a result of a
misunderstanding, and that we don't think the creative commons has
made a mistake by mixing Free Content licenses under the same brand as
far more restrictive licenses.  We face a constant issue where people
ask us "Why did you delete this? I released it under creative commons
licensing so it is free!".   People submit what they see, and if they
see ND they will submit more of that.

Although, I don't think it's the end of the world that we do mention
it.. it is a matter of fact, and because most of our permissible
non-free images will come from the all-rights-reserved camp, I
seriously hope we'll never see many NC / ND + "fair use" images.  If
we do, then we will know what a grave mistake for the world that the
Creative Commons folks made by introducing so many licenses which are
not free enough.