[Foundation-l] BitTorrent Downloads of enwiki Images

[Gregory Maxwell]

On 3/10/07, christophe.henner at wikimedia.fr <christophe.henner at gmail.com> wrote:
> On 11/03/07, Jeffrey V. Merkey <jmerkey at wolfmountaingroup.com> wrote:
> > The real issue is that when I receive DMCA notices, the "uploader" or
> > "provider" of the content is the Foundation if the author cannot be
> > identified or contacted. In response to Anthere, the real issue for the
> > foundation is this:
> >
>
> The point is I don't see what the DMCA have to do with redistribution
> of free images. With Fair Use I can see but, in my opinion, the
> Foundation shall NOT give any autorization for redistribution of fair
> use image, or even help at it.


This entire thread is very disappointing.

Why is this is an issue with "Free images"?  Because images that we
clam are free are not infrequently copyright infringements.  I believe
that Jeff has first hand experience getting copyright complaints over
content which we claimed was okay. Static copies carry the additional
risk that they are not updated continually with the
instant-gratification removals that we are constantly performing on
our projects.

Jeff's issue is very simple.

Under US Law a service provider is protected from copyright claims
related to material they are hosting on behalf of their users, so long
as they meet a set of criteria and conform with a specific take down
procedure.

Users post material to Wikimedia projects and Wikimedia hosts it for
them. If there is a violation wikimedia will follow the mandated
procedure and take the material down, giving the upload the
opportunity to counter notice and take their issue up with the
copyright holder directly. All is good, and Wikimedia is protected
from liability for the actions of their users.

Now, Jeff downloads material from Wikimedia which we claim is free and
hosts it on his own servers.  Is he a service provider acting on
behalf of the original Wikimedia users? I do not think that it is at
all clear that he is. It could be easily argued that he is just a
user, hosting his own content, fully liable any any copyright
infringement he performs.

It would see, that Jeff thinks that having the foundation's explicit
approval puts him in a better position with respect to the DMCA safe
harbor, that by getting the foundation's approval he is in a strong
position to claim that he too is simply a service provider acting on
behalf of someone else.

I do not know if he is correct.. I do not know if this needed, or if
it's sufficient.  But it is not an unreasonable concern.