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

[Sam Johnston]

On Wed, Jan 28, 2009 at 9:55 AM, Ray Saintonge <saintonge at telus.net> wrote:

> Sam Johnston wrote:
>
> > 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.


I'm not talking about genuinely free material, I'm talking about protected
(copyrighted/trademarked) material being uploaded by others - for example a
periodic table of elements or medical charts which would normally be subject
to deletion (except that they are currently immediately available for
sale!).

Furthermore, while WMF *may* be safe from attack on the grounds that *it* is
both non-profit and at arms length from the transaction itself, things are
certainly less clear for the commercial printer who could well find
themselves in serious trouble. What contract(s) are in place to cover WMF &
its chapter(s) in the case that such a supplier (rightly?) seeks recourse
because we have made such material available to them?

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.
>

Albeit interesting, I'm unsure of the relevance.


> 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.


While also true, that is more pertinent in the Flagged Revisions debate (and
I have already raised it there[1]).


> 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.
>

Previously this may have been true, but with content going 'on sale' the
second it is uploaded I'm not so sure it still holds (assuming it ever did).


> 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.
>

I just confirmed with my partner (who happens to be French) that 'accredité'
is definitely a formal term like accredited. The problem with undefined
terms is that it's another thing to argue about and you could find the
definition ending up being something completely different to what you had
intended (especially if the plaintiff has their say about it).


> 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.


See now here is a significant difference between booksources and this
initiative - BS if I understand well simply links our articles with the
books they refer to. The books already exist and the content for them is
sourced and vetted using existing processes and legal frameworks (author
guarantees etc.). Here, on the other hand, we are delivering the actual
content.

Fortunately these issues are easily fixed via forming contracts (even
clickthroughs) with the suppliers and the buyers. Questions about bias,
quality, etc. can also be resolved by maintaining a transparent database of
suppliers (including information about their contributions - average
donation per print for example), ideally with user feedback and using
techniques like random ordering, etc. This is arguably work that should be
done once and made available for everyone.

Sam

1.
http://en.wikipedia.org/wiki/Wikipedia_talk:Flagged_protection#Beware_increased_liability_.28Publisher_vs_Distributor.29