[Foundation-l] Wikipedia content in SMS

[Ray Saintonge]

effe iets anders wrote:

>Ehm, well, I'm not sure of that :) When Google does something (and
>they only send the first line of their search, which *might* be
>wikipedia) it doesn't mean that it is per se OK. You very well noticed
>already the license problem the GFDL offers. When they do something
>like this, they might indeed risk that someone sues them, but with my
>limited knowledge of law I cannot say whether they make a good chance.
>I'd advise them to at least seek legal advice of their own from a
>lawyer familiar with Open Licenses and especially GNU-licenses (read:
>GFDL). Please do not assume that it will be ok, and be always very
>very carefull when giving advice on legal area's to companies.
>
It's not just a question of law; it's a question of risk management.  
Remember that legally interpreting GFDL or other free licences, does not 
have the backing of a lot of court precedents.  A lawyer's guess about 
what will happen is as good as yours.

Presuming that the penalties for being wrong are the same with or 
without legal advice and that no lawyer will agree to pay the penalty if 
he's wrong, the question to ask becomes whether the cost of the legal 
advice is worth the decreased risk. 

Any legal advice beyond using one hour of his time to discuss general 
principles can get very pricey.  Evaluating the implications of a single 
GFDL clause in an international context could take many hours of legal 
research at whatever the IP specialist's rates, and there is still no 
guarantee that he will be right.

On the other hand one would still avoid blatant illegality, but the 
problem is that most such acts are not blatant.  If there is a 
reasonable possiblity that your action may be legal the illegality is 
not blatant, and that consideration alone will keep the potential 
penalty to a minimum.  Having established that you have reasonable 
grounds for proceding you then need to look at the risk factors.
    1. Is there anybody there to complain?  If the copyright is an 
orphan no-one has the standing to object.
    2. Will the infraction be noticed?  The safe assumption here is that 
it will be, but there's an awful lot of "inherited" material material 
where no-one in the family even knows that Grandpa wrote anything while 
he was still in school.
    3. Is there anything in it for the copyright owner?  Is it worth 
pursuing?  What is the biggest net win that the person could likely 
secure?  That will weed them out.  Many will be happy to just receive 
credit, because that alone is already more than they have ever gotten 
from grandpa's estate.  When we put the material up originally we 
probably have no idea who or where these people are.  Once they let 
themselves be known it may be very easy to negotiate the licence; in 
other words, material which we might have been rejected as unfree will 
have been made free.
    4. Will the owner settle for a simple takedown once the infringement 
has been discovered.  Here we would at least review the circumstances, 
and be prepared to give the owner the benefit of the doubt with whatever 
apologies may be appropriate.  Up to this point the costs to both 
parties will be minimal.
    5. Who has the stomach for a court fight?  If or when things ever 
get this far we will already have an arguable case, and here we are also 
talking about a very tiny part of the cases that were on the table for 
point one.  AFAIK things have never gotten anywhere near to this in the 
entire 6 1/2 years of Wikipedia's existence on any kind of copyright 
matter.  Remember too that the person complaining has costs too; in 
addition to that he also has the burden of proof.  Judges can also be 
convinced that a person is being frivolous if the complainant has 
consistently failed to respond to reasonable settlement offers.  A $1.00 
fine may be a reasonable cost of establishing a precedent.

We must never act recklessly.  However, where the law is subject to 
interpretation, there is never any obligation to assume the most 
disadvantageous interpretation of the law, and that practice is only too 
frequent here.

Ec