[Foundation-l] Fair Use (again)

[George Herbert]

On 1/28/07, Robert Scott Horning <robert_horning at netzero.net> 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.

As the US code reads, fair use includes:
"criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research"

It then goes on to describe the four factors involved in determining
if a use was fair under those theories:
"       1. the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit educational
purposes;
       2. the nature of the copyrighted work;
       3. the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
       4. the effect of the use upon the potential market for or value
of the copyrighted work."

Wikipedia can be argued to fall under aspects of news reporting,
scholarship, teaching, comment, and criticism, depending on the
details of the particular article and subject.

The US code doesn't say "educational institution".  It says "for
teaching".  It doesn't requires that a fair use meet all four factors,
just that those factors be used in the determination.

Regarding the distribution of materials beyond Wikipedia, while it's
true that we fall under the "nonprofit educational purposes" clause of
factor 1 above, most potential further-distributed users would find
protection under 2-4 and the scholarship, news reporting, etc.
fundamental fair users.

In particular, factor 2 "The nature of the copyrighted work" rather
clearly implies that promotional materials released by organizations
are generally expected under law to be reproduced, which is one of the
major arguments on en.wp right now.


-- 
-george william herbert
george.herbert at gmail.com