[Foundation-l] Fair Use (again)

[Robert Scott Horning]

I've somehow found myself embroiled in the middle of a fair-use fight on 
en.wikipedia, but an interesting viewpoint has expressed itself that I'm 
curious with the "powers that be" and other experienced Wikimedia users 
might find a bit interesting, at least in terms of where a significant 
faction of Wikipedia users want to go.

The philosophy is essentially that fair use images are permitted on 
Wikipedia, even if you are not going to be legally permitted to use them 
if you copy them and try to re-publish the Wikipedia article.  I guess 
this same philosophy also applies to the whole issue of NC images and 
their inclusion in Wikimedia projects, but in this case the issue is 
mainly centered on fair use applications of image content.

In reading through the Wikipedia Fair Use guideline talk page 
(http://en.wikipedia.org/wiki/Wikipedia_talk%3AFair_use), I noticed a 
recurring theme to justify many fair use images based around two 
significant points of the fair-use doctrine as described in USC 92 
section 107:

* Educational fair use  - Wikipedia is part of an "educational 
institution" and the images are used as a form of instruction.
* Non-commercial entity - Because the WMF is a 503 (c) 3 non-profit 
organization, and because all of the editor/contributors to Wikipedia 
are unpaid volunteers, Wikipedia can claim non-commercial usage of fair 
use content.

My counter argument is that neither of these justifications are valid 
for inclusion into Wikipedia.  The educational exception is a major 
stretch and I just don't see how it really applies in the case of 
Wikipedia, particularly with some common-law cases that have 
significantly reduced the scope of educational fair use.  In the case of 
the non-commercial entity, I would argue that the GFDL is the trump card 
here, as reproducing Wikipedia (and almost all Wikimedia) content must 
be done under the terms of the GFDL, which explictly permits commercial 
reproduction.

The response to this is that it doesn't matter if the GFDL applies. 
 They just want to include fair use images, even if the GFDL doesn't 
permit their reproduction.  This is essentially a "buyer beware" 
attitudue where you, as the end-user, are required to explicitly go 
through the licensing terms of all images you download together with an 
article and remove those images if you decide to pass the article on to 
a 3rd party.  The inclusion of an image on Wikipedia has no connection 
to the GFDL, but only if it is legal (even if barely) for it to be 
displayed on a website run by the WMF.

I had a hard time understanding this philosohpy, but a fairly vocal 
group insists that this is where fair use policy on Wikipedia ought to 
be going.

I should note that I got into this whole mess because I was involved 
with a group that was trying to write a Wikibook about M.C. Escher, and 
I tried to point out that they couldn't reproduce the Escher artwork 
unless they somehow were able to obtain a license that could be used 
under the GFDL.  The response was that the images were being used on 
Wikipedia, so why not Wikibooks?  The Escher reproductions are claiming 
fair use, but I think it has gone way too far on Wikipedia, as I believe 
these to be merely a copyright violation.

-- 
Robert Scott Horning