[Foundation-l] Fair Use (again)

[Jeffrey V. Merkey]

All it takes is one lawsuit from someone who is upset at the images 
being used, and the money from
the last fund drive could get used up in legal fees pretty durn fast. If 
someone object to images
being used, then TAKE THEM OFF THE SITE, Fair use argments are not. I 
recall my interactions
on en.wikipedia with people using copyrighted materials and some of the 
debates I had there.

Bottom line, these anonymus editors are not the people who will get 
nailed. The foundation will
be the ones who get served and Brad will have to hire a law firm to 
defend the Foundation. It's
pretty simple -- if someone who owns th images does not want them used, 
then do not use them.

There are a lot more torts than just copyright infringement they could 
pull out of the bag and use. They could claim
unfari competition, tortious interference, and a whole host of other 
torts they may win with. It's cheaper, easier,
and honorable to simply take down the images and tell the offended party 
it is being done as a courtesty. This makes
it appear the foundation is acting in good faith.

Jeff


Robert Scott Horning wrote:

>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.
>
>  
>