[Foundation-l] BitTorrent Downloads of enwiki Images

[Ray Saintonge]

Jeffrey V. Merkey wrote:

>Florence Devouard wrote:
>
>  
>
>>I still have not understood what you were asking the authorization for.
>>Images are under a free licence, so do not need our authorization to be 
>>distributed.
>>
>>Can you provide the exact text of what you are asking authorization of ?
>>
>>ant
>>    
>>
>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. 
>
Just because the material came from a wmf project does not make it the 
uploader or provider.  Whoever physically put the material on your site 
is the uploader.  "Provider" is admittedly more ambiguous, but I think 
that it must be a positive act of making it available to you in 
particular.  Simply having the material there for anyone to take does 
not make the grade.

>In response to Anthere, the real issue for the 
>foundation is this:
>
>1. I will need either the foundation to the notify users on Wikipedia 
>via their talk page I have received such a notice or I am required to 
>contact the users about an image they have uploaded.
>
These people have not uploaded the material to your site.  You have.  If 
you receive a _properly composed_ DMCA notice you must take down the 
specified material   If you consider the Foundation to have uploaded the 
material it is fair and proper that you notify the Foundation.  At that 
point the foundation is free to agree with the takedown and take no 
further steps.  That would certainly be the simplest way to go, and I 
can imagine very few circumstances where the Foundation would do 
anything else.

The takedown notice has nothing to do with who uploaded the material.  
It's issued because the material is there.  If the rights owner wants to 
go after the uploader that's a separate issue.  They can even initiate 
legal procedings to find out who the uploader really is (but in most 
cases this does not seem worthwhile).  If you datadumped from another 
site it's you, and not the uploader to the other site.  You can, of 
course, issue a counter-notice.  As I read the law, unlike the 
restrictions put on the complaining rights owner, anybody can issue a 
counter-notice; the right is not limited to the putative rights infringer.

>2. 10 days after I contact the Foundation or the user, if the DMCA 
>submitter fails to file suit against me in US District Court for 
>Copyright Infringement, the Foundation and the provider of the image is 
>relieved of liablity for the distribution of the images forever under 
>the doctrine of esstoppell.
>
No.  The material essentially needs to stay off until you have received 
a counter-notice.  The 10-day period runs from the receipt of the 
counter-notice, not the original notice.  If you notify the Foundation, 
and the Foundation does nothing the 10-day period hasn't started.  
Estopel or vexatious actions are only likely to come into play if a 
person keeps re-initiating takedown orders for the same material instead 
of responding to a counter-notice with a proper legal suit.

>3. The Foundation needs to decide whether these notices should be sent 
>to the individual wikipedia users, or the Foundation directly. in any 
>event, it would be an extra layer shielding the foundation from claims 
>for distribution of fair use images in tarballs along with XML dumps.
>
Why should the Foundation pass them on if it was not the one receiving 
the DMCA notice?  I very much believe, and have stated so in the past, 
that when the Foundation receives such notices it should make them 
public so that directly concerned individuals can take action if they 
want in response to the material being taken down.  This need not be the 
same when the notice goes to a mirror site.  If the rights owner wants 
the material removed from any WMF project he should make his claim 
directly rather than through your project.  I don't think that this 
"extra layer shielding" has any meaning at all.

Ec