[Foundation-l] Fair use being badly abused on en.wikipedia

[Mike Godwin]

Thomas Dalton writes:

>>  That said, even what is permitted by law seems to be more  
>> restrictive than
>> what is currently occurring on the English Wikipedia.
>
> Really? If that's the case, then Mike needs to step in and tell us. If
> our use of images is actually illegal (or, could reasonably be
> considered illegal - I don't think fair use is sufficiently well
> defined to be sure until a judge makes a decision), then all our
> debate is meaningless and we just have to do what the law requires.

One of the hard things about dealing with copyright law is that people  
who want to work within the law want clear answers, stated as blanket  
rules, and the law itself doesn't lend itself either to particularly  
clear answers or to easily applied general rules.

RIAA, for example, has a very narrow notion of fair use. YouTube has a  
very broad one.  The nice thing for YouTube is that they're backed by  
Google, so can afford to very aggressive in urging for an expansive  
understanding of fair use, either by simply allowing lots of  
unlicensed uses of content or by defending its use aggressively in  
court or both.

The Foundation is not well-positioned to do the latter, so it seems  
prudent not to do the former either.  That said, I wouldn't want us to  
avoid Being Bold altogether. But I think we have to ask ourselves,  
every time we use content that has not been freely licensed, is this  
something we're ready to *pay* to go court over?

This is a different question from asking whether we'd win any given  
case.  I assume without much uncertainty that we'd win a fair number  
of them -- in theory.  But we're not in the position of going to court  
to win even the cherrypicked, obviously winnable cases.

Maybe someday we will be -- either because we have a better revenue  
stream or because we're doing so in coalition with other like-minded  
projects (the first is likelier than the second, in my view, because  
coalitions tend to work defensively better than offensively).  But in  
the meantime, anyone who's adding "fair use" content needs to ask  
himself or herself the hard questions about willingness to go to court  
(or willingness to make the Foundation go to court for them).

There's plenty of other pressing legal work that needs to be done on  
the Foundation's behalf that I can't say I would love to spend my days  
in court defending a "fair use" on anything but the solidest legal  
ground, and without a whole lot of money in the Foundation's pockets  
to spend on getting the case right.  So ... it's reasonable to  
conclude that a conservative policy is best for now. (I liked Nathan's  
one-paragraph summary of it a little while ago.)


--Mike


>
>
>
>
> ------------------------------
>
> Message: 8
> Date: Mon, 7 Jan 2008 19:06:49 +0100
> From: "Gerard Meijssen" <gerard.meijssen at gmail.com>
> Subject: Re: [Foundation-l] Fair use being badly abused on
> 	en.wikipedia
> To: "Wikimedia Foundation Mailing List"
> 	<foundation-l at lists.wikimedia.org>
> Message-ID:
> 	<41a006820801071006y2e6d30f3tfa8e5444f25a4279 at mail.gmail.com>
> Content-Type: text/plain; charset=UTF-8
>
> Hoi,
> Your aim is different from the stated aim of producing a product  
> that is
> freely licensed and everything to its content is permitted as per the
> license. Both the GFDL and the CC-by-sa explicitly allow for the  
> commercial
> application of our products. This is stated policy and when fair use  
> is
> incompatible with this purpose, fair use is not defendable.
> Thanks,
>     GerardM
>
> On Jan 7, 2008 6:19 PM, Robert Rohde <rarohde at gmail.com> wrote:
>
>> Some people, myself included, want to create the best possible no- 
>> cost
>> encyclopedia.  From that point of view, copyleft and free content  
>> is a
>> means
>> to that end.
>>
>> Other people (including much of the WMF Board apparently) feel  
>> creating
>> free
>> content is an end in itself that justifies sacrificing some  
>> encyclopedic
>> coverage and limiting our exercise of fair use rights to a much  
>> narrower
>> set
>> of circumstances than allowed by law.
>>
>> I can understand that point of view, even though I don't agree with  
>> it.
>>
>>
>> However, I do think we need a different set of language here.   
>> Despite the
>> title of this thread, there is a NOT an abuse of fair use here.  The
>> situation being described is exactly the kind of situation for  
>> which fair
>> use rights were created, e.g. identifying subjects of academic  
>> discussion
>> in
>> a non-commercial, non-competitve setting.
>>
>> It is, arguably, an abuse of non-free content under Wikipedia/ 
>> Wikimedia
>> policy, but abusing non-free content with respect to Wikipedia is  
>> very
>> different than abusing fair use.
>>
>> That said, policy is the creation of Wikipedians/Wikimedians.  It  
>> evolves
>> with time and often has fuzzy edges.  It's limits are, more or less,
>> whatever it is that we agree to enforce.  Appeals to absolutes like  
>> "if
>> you
>> truly care about free content, we must limit fair use usage" is not  
>> very
>> helpful, since we already do limit fair use quite substantially,  
>> both in
>> policy and in practice.
>>
>> -Robert A. Rohde
>>
>>
>> On Jan 7, 2008 8:01 AM, Brian Hammer <hammersoft123 at gmail.com> wrote:
>>
>>> The mission of Wikimedia is to generate "neutral educational content
>> under
>>> a
>>> free content license". The Foundation's resolution from March 2007
>> states
>>> that EDP use must be minimal, within narrow limits.
>>>
>>> Subsequent to the resolution being passed, a number of efforts were
>>> undertaken to limit fair use usage on en.wikipedia. This affected
>>> discographies, episode lists, and character lists. A *huge* number  
>>> of
>>> debates erupted over these removals. One such debate was covered at
>>>
>>>
>> http://en.wikipedia.org/wiki/Wikipedia:Wikipedia_Signpost/2007-05-07/Fair_use
>>> .
>>> The disputes have never ended. For discographies and episode lists,
>>> the
>>> debate has simmered down for the most part, with occasional flare  
>>> ups.
>> For
>>> character lists, the debate is still raging.
>>>
>>> What has been the rule of thumb in removing the images is that an  
>>> image
>> of
>>> the character being used for depiction of that character only is
>> allowable
>>> on that character's particular article, but not on articles  
>>> collecting
>>> multiple characters into a single article. The rationale here is  
>>> that if
>> a
>>> character is notable enough for an article, they're notable enough  
>>> for
>> an
>>> image, and vice versa. Allowances have been made for "cast" type  
>>> images
>>> showing multiple characters in a single image from the copyright  
>>> holder
>>> (not
>>> montages made by editors).
>>>
>>> Nevertheless, the debate has raged endlessly, and has recently  
>>> exploded.
>>> It
>>> stands now on a precipice, and it is highly likely that fair use
>>> inclusionists will 'win' in that per-character images are going to  
>>> be
>>> permitted on character articles (for example, see
>>> http://en.wikipedia.org/wiki/Hogwarts_students ).
>>>
>>> Some discussion exists currently at
>>>
>>>
>> http://en.wikipedia.org/wiki/Wikipedia:Administrators%27_noticeboard#Fair_use_war_being_lost
>>> and scattered through a variety of sections of
>>> http://en.wikipedia.org/wiki/Wikipedia_talk:Non-free_content
>>>
>>> If Wikipedia is truly a free content encyclopedia, if you truly care
>> about
>>> free content, we must limit fair use usage per the Foundation's
>>> resolution.
>>> As it stands now, this debate is lost in favor of people who are  
>>> more
>>> focused on whether something is suitable as a guide than focused on
>> being
>>> a
>>> free content resource.
>>>
>>> A strong voice from the Foundation would be appreciated, most  
>>> especially
>>> in
>>> favor of a new section added to clarify the local EDP at the second
>>> paragraph of this version of the guideline:
>>>
>>>
>> http://en.wikipedia.org/w/index.php?title=Wikipedia:Non-free_content&oldid=182482742#Unacceptable_images
>>> (paragraph since removed in an edit war)
>>>
>>> Thank you,
>>> Hammersoft
>>> _______________________________________________
>>> foundation-l mailing list
>>> foundation-l at lists.wikimedia.org
>>> Unsubscribe: http://lists.wikimedia.org/mailman/listinfo/ 
>>> foundation-l
>>>
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>
>
> ------------------------------
>
> Message: 9
> Date: Mon, 7 Jan 2008 13:48:20 +0100
> From: "Milos Rancic" <millosh at gmail.com>
> Subject: Re: [Foundation-l] Meta-arbcom (was: the foundations of...)
> To: "Wikimedia Foundation Mailing List"
> 	<foundation-l at lists.wikimedia.org>
> Message-ID:
> 	<846221520801070448q1b05bce1r98f4eeeb86171c4e at mail.gmail.com>
> Content-Type: text/plain; charset=ISO-8859-1
>
> On 1/5/08, FloNight <sydney.poore at gmail.com> wrote:
>> I was thinking of a combination of stewards and members from  
>> elected ArbComs.
>
> Maybe someone else mentioned it before. I am at the first fifth of  
> the thread...
>
> (As a steward) I don't think that stewards should have any connections
> with judicial functions. Stewards are executors (let's say, like FBI)
> and giving them possibility to make decisions over disputes clearly
> makes SuperWikimedian group of people.
>
> Also, while I really think that a lot of stewards are able to make
> good decisions over disputes, in choosing the main factor is not a
> quality of such decisions, but a quality in imposing the rules.
>
> Another problem is the process of electing stewards and removing their
> rights. While it is completely acceptable that stewards don't need
> reelection, but only confirmation -- Meta ArbCom members has to be
> reelected. Life-long (or practically life-long) position of a judge
> may be acceptable only in a well developed societies and WM society is
> not well developed; as well as it needs a process of education in law.
>
> By giving to stewards a new role, we would make a retroactive rule:
> all people who are chosen for one role are getting another another,
> qualitatively different role.
>
> The point is that this is a really bad idea. There are many of
> structural problems made by giving to stewards judicial role.
>
>
>
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