[Foundation-l] Fair Use (again)

Robert Scott Horning robert_horning at netzero.net
Mon Jan 29 21:40:30 UTC 2007

George Herbert wrote:

>On 1/29/07, The Cunctator <cunctator at gmail.com> wrote:
>>On 1/29/07, Brad Patrick <bradp.wmf at gmail.com> wrote:
>>>I wanted to simply state that I have been reading this thread with
>>>The images are fair - not free - and that isn't the same thing.  You can
>>>argue til the cows come home about any particular example.  People
>>>do.  ;-)
>>>But I would once again encourage anyone interested in the issue to ask
>>>themselves first why the fair image *must* be there instead of a free one
>>>(rare examples) and why it is not instead an easy way out in lieu of the
>>>harder task of obtaining free images as equivalents.
>>>What happens in legal terms depends, of course, on the situation.  WMF has
>>>no interest in fighting really hard for "fair use" in principle, since we
>>>are all about free images where there is a choice.  Be honest - wouldn't
>>>best Wikipedia be one with no strings attached, with content of equivalent
>>My attitude is that Wikipedia should be pushing the copyright envelope
>>(within reason, of course) on all fronts.
>>Similarly Wikipedia is now in the position of being one of the 800-pound
>>Wikipedia has the power to shape law because of its size and influence.
>We're not an 800 pound gorilla; but we're much more than a dancing macacque.
>I would like to second Cunctator's comments in general.  Specifically,
>while I encourage the development of free content wherever possible, I
>want to be realistic that there's a tradeoff between covering
>something well and covering something badly but with entirely free
>content.  I will always come down on the side of  a better
>encyclopedia if an appropriate, legal fair use content add will better
>Wikipedia noticably.
>I had someone just last week suggest that we could find free
>replacement images for a spacecraft which had been assembled and flown
>in space already, both for the spacecraft under construction and for
>the landing.  The only people who took and released photos of the
>assembly who are known are the official space agency photographers
>(not NASA, India's ISRO), and the landing took place several hundred
>kilometers out to sea, with one Indian Coast Guard ship and some
>helicopters in attendance.  How exactly are we supposed to go back in
>time and convince a free-license photographer to go take pictures of
>those events that already happened?  How do we convince ISRO and the
>Indian Coast Guard to let them do it?
>If we don't fight for the meaning and use of Fair Use, we both lose
>content for ourselves, and lose content for the whole community at
>large by not helping to uphold fair use vigorously.
>If Wikipedia won't stand up for Fair Use, then it's a pretty sad
>world.  We can be strident in supporting fair use, legal and proper in
>supporting fair use, and still prefer and work to create free content.
> They are not mutually exclusive.  But those who say "oh, if we remove
>it, free content of equal value will just sprint forth to replace it"
>frustrate me to no end.  It won't, in a lot of cases, because it
One of the questions I have asked over and over again without even a 
single reply or good example is to try and demonstrate some other major 
publication, such as a commercial encyclopedia or a book published by a 
major commercial publishing house, that uses fair use images in the 
extent that Wikipedia seems to be using them.  I can't think of a 
significant example to hold up.  The only situation I can think of is 
some web site like MySpace or similar kind of mass website that doesn't 
really take copyright seriously in the first place.  That is hardly a 
good comparison to stand in the same company.

If you can't handle the fact that the images and artwork are copyrighted 
and you can't get a copy of that particular photo, live with it! 
 Copyright law is about a government monopoly grant over the control of 
those image, and you simply must get permission to use those images from 
the copyright holder.  The most common way to do that is through the use 
of a license that controls how you are permitted to reproduce that content.

The GFDL is one particularly effective way to accomplish this task, if 
you want the content to remain available under a FLOSS type philosophy, 
but not everybody in the world cares to have their images reproduced 
under that sort of arrangement.  In some cases (many cases, in fact) 
there are some photographers who are hoping that by being in the right 
place at the right time, that they would be able to get some sort of 
economic complensation for taking that photograph in the first place. 
 Indeed, this is the very definition of a freelance photographer as this 
is largely what they hope will happen.

Some photos are so defining that they end up becoming literally iconic 
in stature for what they are portraying.  Some of these are in the 
public domain, but often these are photos taken by photographers who 
just happened to be in the right place to get it done.... plus have the 
skills to make sure that at the right moment they were ready with the 
camera in focus, and a decent enough camera that the image would also 
come in very clear.  These skills often take a lifetime to develop and 
is the very basis for their economic existance, relying on these unique 

As far as how to convince a group like the ISRO to allow either a 
volunteer Wikipedian (or Wikinewsian) to take a photo for things likely 
to be significantly newsworthy or noteworthy in the future under a 
FLOSS-type license, that is something that perhaps does deserve 
discussion.  Publicity opportunities of this nature do happen from time 
to time, and surprisingly there are people who actually do take these 
photos and submit them to the Wikimedia Commons.  I've even had the 
opportunity on a few rare occasions, but the photography equipment I've 
had is usually lacking.

You also have the opportunity to address the issue with the group or 
organization involved and try to get them to release the images under a 
free license.  I have known several groups and even for-profit companies 
who have gladly donated images to Commons under the GFDL or other free 
licenses.  It isn't nearly as hard or as difficult as it is being 
portrayed here, and many of these groups actually enjoy that articles 
about them on Wikipedia are "classed up" by having a few photos about 
them that are of high quality.  When you point out that they still 
retain copyright over the photos, they are in some ways very interested 
in the whole concept, which may even be a new idea to some P.R. folks.

I am not against fair use completely, but I do believe that any such 
usage of fair use content must be significantly limited.  Not every 
photograph or rendered image can or ought to be available under a 
fair-use justification.  And it is also just as important to try to get 
a "free" alternative, and to try and encourage Wikipedians to "try 
harder", as in most cases they appear to simply be lazy contributors.  I 
also know that I've made several mistakes myself in terms of uploading 
content that I considered at the time to be fair use but in fact it 
really wasn't.

To be very fair particularly to our new contributors, the fair use 
policies need to be very clear and very limited.  They should not have 
to pass a bar examination on intellectual property rights in order to 
effectively be able to decide what is reasonable content to upload on 
Wikimedia projects, or for administrators to have to decide when 
somebody has gone too far.

I also strongly disagree that Wikipedia and other Wikimedia projects 
ought to be the ones "pushing the envelope" in terms of getting right to 
the edge on fair use legal usage.

Having Wikimedia users organize (outside of the juristiction of the WMF) 
to campaign to legislators and chief political executives for the 
advancement of free images and the ability to have images that have 
orphaned copyright or to set up legislation that would permit legal 
usage of some of these photos may be a good and worthy goal.  I just 
don't see that pushing the envelope and saying "see this!  try and sue 
me now!" is going to either win friends for Wikimedia projects or really 
be helpful in the long run.

Robert Scott Horning

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