[Foundation-l] Commons and The Year of the Picture

[Ray Saintonge]

Sam Johnston wrote:
> On Wed, Jan 28, 2009 at 1:59 AM, Ray Saintonge wrote:
>   
>> Just how much control do you expect from the Central Committee?  Sure,
>> it's a given that some will-intentioned initiatives will go dreadfully
>> awry.  Bad things have happened in the past, and bad things will happen
>> in the future; None of it will be prevented by imposing strict central
>> control.  Wikimedia is a resilient organisation, and it didn't get that
>> way through paranoid musings about a tarnished reputation.  It's not
>> that fragile.
>>     
> My primary concern is that all the potential ramifications of such actions
> be properly considered - the income is irrelevant in the context of the WMF
> budget and yet the risk could be extreme. For example, deriving revenue
> directly from the content could cause problems for fair use[1], let alone
> the prospect of users uploading copyrighted or otherwise restricted (eg
> trademarked) content.
>   
Material in the public domain or under a fully free licence does not 
require any kind of fair use consideration.  The WMF already takes a 
stricter position in fair use in its contents than I would ever consider 
necessary, by insisting that fair use material must be able to remain so 
when used by a downstream consumer. 

An important element of WMF's risk management is to *not* have general 
editorial participation in its contents.  If it takes an official hand 
in such things it endangers the safe harbors it has as an ISP.  It must 
respond to legal demands, but it cannot be faulted if it fails to notice 
an irregularity, or if it fails to accept the word of an uninterested 
third party that some content is a copyright violation.  Of course, we 
must use common sense about such things, even when failing to do that 
would be technically legal.

> Another liability to consider relates to problems with delivery. Normally
> such convenience services include strong disclaimers of warranty and
> liability but checking one of my contributions[2] shows offers to 'Choisissez
> un imprimeur *accrédité*'. By referring to these vendors as 'accredited' we
> are stating that they are officially approved and raising many questions
> about the accreditation process itself.
>   
I wouldn't take such a narrow reading of "accredité".  French 
Wikitionary, under "accrediter" shows "Rendre crédible 
<http://fr.wiktionary.org/wiki/cr%C3%A9dible>, vraisemblable 
<http://fr.wiktionary.org/wiki/vraisemblable>, donner cours 
<http://fr.wiktionary.org/wiki/cours>".  There's a lot of wiggle room 
with that word, and if I encountered it in a legal context the first 
thing I would ask is, "What do they mean by that?".  In the absence of a 
specific definition any of several reasonably applicable definitions can 
be applied.  If necessary it would be easy to amend the disclaimer.  
"Suggéré" would be an even less stringent term.

Delivery problems are a matter of the contract between the printer and 
the consumer, and should not normally be a legal concern for WMF.  If 
there is a reported history of bad service in multiple incidents we 
should not be recommending that printer, but even if there is such a 
history proving that kind of international complicity over the printing 
of a single book would be well beyond the capacity of a small-claims court.

Ec