[Foundation-l] Four Questions About Freedom (was: Clearing up Wikimedia's media licensing policies (some important points))

[Erik Moeller]

On 2/9/07, Delphine Ménard <notafishz at gmail.com> wrote:
> Tell me anything but don't tell me that fair-use can be used for this
> that and the rest and that it's not so bad, after all. (at least, this
> is what I repreatedly hear, this manichean speech that says ND/NC and
> permission are EVIL, fair use is LESS EVIL). Don't even hint at it.

I don't really like to use the word "evil." What I want to communicate
is that the liberation of culture is a process, not a state. Within
that process, it may be acceptable to make temporary concessions to
reality -- until we have changed that reality.

The questions we should ask, I think, are the following:
1) How can we make the division between free and non-free clearer?
2) How can we encourage the liberation of non-free works?
3) Are there works which we can never hope to liberate, at least not
under the existing paradigm of freedom?
4) What concessions can and should we make for different language projects?

Here are some thoughts on each of these questions:

1) Making the division clearer. One way to do so would be to caption
every image that is used under an exemption doctrine with a notice to
that effect, e.g. "Copyright (C) XYZ. Used under fair use. [[About
fair use in Wikipedia]]" That latter link could explain our policies,
our desire for replacements, and the general free culture philosophy
underlying this framework.

Another method is to completely phase out local image uploads for
anything _but_ materials used under an exemption doctrine policy
(EDP). This is what we have done on English Wikinews from the start
and one the Polish Wikinews for some time. The upload link says
"Upload fair use media"; another link says "Upload free media" and
points to Commons. This makes editors more aware of the difference,
and makes it easier to patrol fair use uploads. Right now, the
perception is often "Commons is for stuff I want to use in other
projects," which is of course only half the truth.

For new projects, it may also make sense to disable local uploads by
default, until the project has established an EDP. We did this on
Wikinews for a while, though I think the process has fallen behind a
bit. This would ensure that the initial community is required to
"grok" the division before it can start using non-free materials.

Some liberation is a matter of government policy. It seems still
absurd to me that anything funded with taxpayer money should be
copyrighted at all. While even the US policy on this could be more
liberal, it is internationally among the most progressive. We
non-Americans have to admit in this one instance: our governments
suck. Where they do make government materials available, it is usually
under some restrictions -- non-commercial, educational, etc. This is a
policy we need to work to change. Perhaps the chapters can play a role
in this process.

Let us also not forget the issue of copyright terms. Imagine the
fringe role fair use would play if copyright lasted 14 years --
thousands and thousands of current fair use materials would be in the
public domain. The impact on global culture and knowledge distribution
would be magnitudes greater still; it would be the most significant
cultural liberation in the history of humanity. This is by no means an
impossible goal. It is simply a political decision we need to advocate
-- together with the rest of the free culture movement.

2) Liberation of non-free works. For many pictures, liberating them
will be a matter of paying a certain amount to the copyright holder.
So perhaps what is needed is a Content Liberation Group, either a
point of contact within WMF, or a separate non-profit which seeks to
raise funds to free existing works. I would favor the second option,
as it could then be generalized to non-free software, and other works
which are not as relevant to us.

Such a CLG could also systematically contact copyright holders of
works which are no longer financially relevant. It could develop tools
that make this process efficient and scalable. As Board member, I
would be in favor of the WMF bootstrapping such a thing, even if it
becomes a separate organization.

3) The permanently non-free. Here I'm not referring to Mickey Mouse.
Mickey is non-free, but it could theoretically be bought, or its
copyright could expire (it would have if not for Disney's purchase of
politicians to prevent it from happening). One example I can think of
are identifying images, i.e. logos, coats of arms, seals, and so on.
There is often a legitimate desire to prevent misuse of these images,
and copyright and trademark law can help to prevent that. Moreover,
there is often a strong commercial _incentive_ to misuse them: many of
them are highly valuable.

Even Wikimedia does not put its logos under an existing free license.
I don't like the Debian approach of using two logos much because it
tends to lead to either confusion or dominance of one over the other
(who even knows the non-free Debian logo?). And this is one instance
where there has been infighting within the free culture movement --
Debian shouting at Mozilla and vice versa. A Firefox fork named
Iceweasel. Silliness.

I think we may have to sit down with the CC folks, the FSF, Debian,
and other stakeholders and try to develop an "Identifying Works
License" or something like that, a license which grants certain
liberties, as long as the use identifies only the desired entity and
_nothing else_. It might permit modifications if they used only for
commentary and nothing else, and so on. It might even have to make
explicit reference to commercial vs. non-commercial use.

In other words, I think in this single instance -- works which serve
the purpose of identification -- the definition of freedom may need to
be adjusted. If we can come up with something that is significantly
more free than standard copyright, but still protects the interests of
organizations which would use such a license, then we can start
evangelizing that others should make use of it, too. Right now a
strongly negative attitude against copyrighted logos seems a bit
hypocritical.

4) Different language projects. This is a tricky legal problem, and
the Italian Wikipedia is one example. First of all, only to point out
the obvious, a language is not inherently tied to a country. But
languages are of course strongly correlated with geography, and as
such, their use typically falls predominantly within certain national
borders (Esperanto is a nice exception).

Legal caution and protection of our users suggests respecting the laws
where a language is predominantly spoken. As Gregory has pointed out,
we will not do so if these laws are utterly unreasonable. In those
cases, we can fall back to US law and internationally dominant legal
standards. Outside copyright, an exception are censorship laws.

Therefore, the development of Exemption Doctrine Policies must always
be the result of a discussion between WMF and a language community,
with the involvement of chapters where they exist. I think we should
try to streamline that process -- one of many tasks we should discuss
with our general counsel.

- -

I'd like to hear how others would answer these questions. That
Wikimedia is a free culture organization, however, is neither
negotiable nor reversible. Therefore, as long as we accept some
non-free content as a matter of cultural transition, I do believe a
strong and visible division between the two is essential, as is
thoughtful discourse about systematically transitioning from one to
the other.

But most of all, I think we need to focus on the positive message, not
the rules of exclusion. That message is: We are here to transform
civilization, with free knowledge, free software, free science, free
art -- free culture. People should never feel that they are part of
this because these are the rules we set. If that is what we
communicate, then we have failed to share our own enthusiasm and love
for this fantastic idea. As important as policy is, let's never stop
speaking about freedom.
-- 
Peace & Love,
Erik

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