[Foundation-l] precisions about the recent WMF "fair use" decision

Robert Scott Horning robert_horning at netzero.net
Fri Feb 9 04:45:50 UTC 2007

Delirium wrote:

>Robert Scott Horning wrote:
>>I've asked before, but are there any publications of the scale of 
>>Wikipedia that acutally use fair-use artwork?  In nearly every instance 
>>I find licensed images instead, including several that have been offered 
>>today on the various talk pages of Wikipedia that were referencing 
>>Encyclopedia Britannica.  I don't see fair use being used to this extent 
>>at all in major publications, even textbooks about artwork.
>Well, I just linked you to a journal article freely published online; 
>one among many.  Do you want a hit counter on it or something to satisfy 
>your "scale" requirement?  I don't see what that would have to do with 
>it anyway---How is fair use in a journal any different than fair use in 
>an encyclopedia, legally speaking?
The main point I was trying to offer here is that if you are concerned 
about copyright and being in a very public place like Wikipedia is where 
people would stand up and pay attention if you violate copyrights in an 
obvious fashion (by the owners of that copyrighted material).

I'm actually very surprised about this source code being here, to be 
honest.  Atari (or whoever currently owns the Atari brand and the 
existing software from that company) still asserts copyright on this 
content, and has even licensed it relatively recently to a couple of toy 
manufacturers who have made "retro" games based on the old Atari 2600 
cartrige systems.  For this to be a complete dump of the content is IMHO 
the software equivalent to quoting verbatium an entire poem without 
permission and claiming fair use.  I'm not sure this one would hold up 
if challenged, even though all that is shown is the object code.

It does, however, fit the definition of "one good example" that I've 
been seeking, even though it isn't really traditional art work. 
 Computer software, particularly something written nearly 30 years ago, 
has certainly depreciated in value to the point that you could 
legitimately argue that its publication in this manner does not 
adversely affect its marketability.

Traditional art works, however, tends to appreciate in value over time, 
particularly when it is art work from popular artists and even more once 
that artist has died.  This may be part of why the Louvre is trying to 
assert copyrights over some of the paintings in its galleries.  In cases 
where the art is still clearly under copyright, I can imagine a much 
tougher time to consider the images of that art to be properly 
considered fair use and not infringing on the artist's copyright.

Robert Scott Horning

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