[Foundation-l] Stroop report

Birgitte SB birgitte_sb at yahoo.com
Mon Mar 24 21:41:35 UTC 2008


--- Ray Saintonge <saintonge at telus.net> wrote:

> Birgitte SB wrote:
> > The WMF licensing policy puts the burden on being
> able
> > to declare a work to be "free content" or else use
> an
> > EDP.  Unless something is *really* old you have to
> > know who held the copyright in order to show that
> > their rights have expired.  Not being able to
> > determine the copyright holder, or even being able
> to
> > prove the copyright holder is 100% unknown and
> always
> > was, does not release the work into the Public
> Domain.
> >  Orphaned works are still copyrighted in the US. 
> > There is no provision for a work to be declared
> "free
> > content" unless it a) released under a free
> license or
> > b) in the Public Domain.  *Many* works do not fit
> > either of those criteria and still have 0% chance
> of
> > anyone being awarded damages for copyright
> > infringement. 
> >
> > But we are limited by the WMF licensing
> resolustion,
> > which has a very high standard for "free content"
> and
> > what is allowed to be hosted as such on WMF
> servers. I
> > don't particularly like the licensing resolution
> for a
> > number of reasons, but we can't just ignore that
> it
> > exists and decide use a different standard that is
> > more appealing.
> When talking about these things it's always
> important to distinguish 
> between actual copyright law and WMF policy.  Mixing
> them together in a 
> blender is not an effective way to achieve clarity.
> 

I agree with this principle and I believe I have been
careful not to do this. WMF policy allows as "free
content" works which a) have been specifically
released under a free license and b) works in the
Public Domain.  Examining the first does not require
going too deeply into copyright law.  However in the
latter situation we must examine actual copyright law
to determine whether a work is in the Public Domain.
(BTW The fact that the WMF resolution treated PD as
definitive, homogeneous body of work rather than an
internationally fractured determination does not lend
any clarity here)

> It is clear that WMF policy is far stricter than the
> law.  Of course 
> there is no mechanism for orphaned works to be
> released under a free 
> licence, so ther is no argument about that aspect. 
> The real argument is 
> around the definition of when a work goes into the
> public domain.  There 
> is a difference between an owner that is not
> determinable and one that 
> does not exist.  This is the difference between a
> true 0% chance and a 
> 0.0000000001 % chance.
> 
> An easy example of a true 0% chance could be a
> corporate publication 
> from a company that has ceased to exist through
> bankruptcy.  Its 
> corparate publications in the absence of a transfer
> in the bankruptcy 
> action have become nullities, and that puts them in
> the public domain.
> 

How does this put a work in the public domain?  As far
I am aware a work enters the public domain if a) a
jurisdiction never recognizes copyright on the work at
all, b) the copyrights originally recognized by a
jurisdiction expire, or c) the copyright owner
intentionally releases her rights to the work.  I have
never heard of something "defaulting" to the Public
Domain because of the dissolution of the copyright
owner.  If things "defaulted" the Public Domain we
would not have the existing situation with Orphan
Works.  If I am wrong about this, please show me some
statues or case law about a work being put in the
Public Domain in the manner you have described above.

> We do ourselves a disservice when we take the
> doctrinnaire position that 
> there is no provision that would allow us to declare
> a work free. There 
> are limitations on prosecutions, and there remains
> the common law 
> doctrine of "laches", perhaps other avenues as well.
>  Our mission is not 
> simply a matter of accepting freeness as a concept
> in stagnation.  It 
> also involves the verb "free", and making things
> free.  It requires 
> exercising a little imagination to find ways of
> doing that.
> 

Perhaps the WMF does itself a disservice in this way,
but I am simply trying to abide by the resolution that
was passed.  I am not against your aims Ec, but
considering works with limitations on prosecution
(i.e. unregistered works) is really overreaching the
current policy. 

Please let us try and differentiate between where we
disagree in interpreting the current WMF policy and
areas we agree are outside of the current "stricter
than law" policy but we would like WMF to reconsider. 
I have discussed this with you different occasions and
understand some of your thoughts, yet even I am
uncertain about whether some are your points are meant
in general or in regards to the current WMF policy. 

Birgitte SB


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