[Foundation-l] Fair Use (again)

Robert Scott Horning robert_horning at netzero.net
Sun Jan 28 20:13:37 UTC 2007

Jeffrey V. Merkey wrote:

>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.

I am being told that the one and only way that these images are going to 
possibly be removed from Wikipedia is through a WP:OFFICE action.  I 
think that is one of the most ridiculous sentiments ever made.  For 
example, see the "disclaimer" that was thrown onto this image:


It basically says that if M.C. Escher objects (BTW, he is dead.... so I 
guess that is his estate here), then he should contact the "Designated 
agent" of Wikipedia (aka Brad) in order to remove this image.

IMHO, this disclaimer by itself is almost proof by itself that this 
particular image is a copyright violation, and I would argue that the 
other 40,000 images also in [[en:w:Category:Fair use images of art]] 
also are very likly to be copyright violations.  That is not a trivial 
number of images to be removing.

I don't know directly the liability to either Wikipedia as a project or 
the WMF as the "sponsoring institution", but I would strongly suggest 
that fair use has gone way too far here.

This is also (at least to me) a very new philosophy that Wikimedia 
project might be hosting content that would not necessarily be 
reproduceable under the GFDL as the lowest common denominator.  That 
essentially this is content that dead-ends just on one project, such as 
Wikipedia, and can't be used anywhere else.  I'm not talking about WMF 
logos (which is a totally different issue), but for general content that 
is project related.  And the group that espouses this viewpoint is 
willing to wheel war over this issue as well, so simply deleting the 
content is not going to be sufficient here.  They are already making 
changing the Wikipedia fair use policy to permit this sort of 
philosophy, and I'm just a rather lowly ordinary user with no major 
status on Wikipedia.

That the foundation may have a legal liability issue here is why I'm 
raising this on a foundation level at all, and because I believe that 
this is an issue that will affect all Wikimedia projects in the not so 
distant future.  With the current philosophies regarding fair use on 
Wikipedia, I am trying very hard to find what is considered an 
infringing image that is a copyright violation.  I can't think of a 
single one.  Every image I could possibly imagine has some sort of 
application under current fair use guidelines to be included in at least 
some sort of Wikipedia article, and that once there, is often and 
frequently copied to yet other articles where the usage is much more 
dubious.  The 400 x 600 pixel image I mentioned above is considered "low 
resolution" too.

Robert Scott Horning

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