[WikiEN-l] Fair use and "Bolivian Gas War"

[Alex R.]

Crossposted to Wikilegal-L

>  From: "Stevertigo" <utilitymuffinresearch2 at yahoo.com>
> ...
> > --- Jimmy Wales <jwales at bomis.com> wrote:
> > Fair use is an absolute necessity for us in some
> > contexts.  But it  should be used judiciously and
> with great > care, and only when every
> > other (freely licensed) alternative has been
> > exhausted.
> 
> This kind of contradicts what you just said before.
> Either fair use is a defense, or it is not. Where that
> slider is set, is going to be harder to explain than
> GNU is.

There is another argument to look at here. The
argument regarding fair use as being a way to create
more of a public domain. Practically all the images
that are used on Wikipedia (except perhaps for that
one chart in the article that is way beyond fair use
for other purposes but probably fits into fair use
in an npo free encyclopedia) are low resolution and
if they were reused they could only be used in 
informational contexts. Are any GFDL downstream
uses ever going to be non-informational? Perhaps
not.

The point is that fair use requires use. And if enough
people use an image for informational purposes
(because there is no other images showing that, or
the image is very generic or has little copyrightable
content, i.e. is mostly representing information without
any authorship) the question becomes not does that
image not fall under fair use, but is the image use so
widespread that more uses of it become fair and it
becomes unreasonable to remove it from general
circulation. This is similar to the argument that is
used with images that have great historical value,
they take on an iconic quality that is much more
than the authorship of the image. Remember that
information is not copyrightable, thus an image that
only shows information (such as the protest image
taken from a standard angle of a public event)
may have a very weak claim to copyright to begin
with if one can suggest that it is similar to other
images taken at the same time and used widely
in journalistic distributions.

The argument about fair use being only a defense
is a non-starter. Why?  Because anyone can file
a copyright infringment lawsuit and the case can
get thrown out of court later. Being afraid of someone
filing a potential lawsuit when there is a strong 
fair use defense is, as they say, just being a wimp.

This is perhaps a subversive argument (yes lawyers 
use the law for all different purposes) that is encouraging
fair use that becomes viral through a free content type
license. It is used in an informational context and no one
contests it.  Google routinely has thumbnails and they
are often of very commercial protected copyrighted 
material, but no everyone is forcing Google to take them 
down even though Google is a commercial enterprise.

Such fair use can become something like public domain
by estoppel. If people use and reuse these images
all over the net how will a corporate owner stop it?
Send a DCMA take down notice to every infringer?
Considering drafting one of these notices can cost
anywhere from $500 to $2,000 each the cost of doing
so quickly becomes prohibitive. The result: they
don't care. And they start thinking that maybe it
is tolerated because the image gets out there and
(as long as attribution is maintain which would be
necessary under the GFDL anyway) then it brings
people back to the original image and if there is a 
commercial tie-in the creator actually benefits. The 
GFDL becomes a means of free advertising that brings
one back to the source of the content. Why would
anyone not want that? "Hey, neat photo, let me
go to the site where it comes from." "Hey, the NY Times
sells prints of that photo that I can give someone as
a gift and it is not that expensive." They would have
not gotten back to that image source if it was not out
there. Thumbnails are thus like free advertising that
creates a new, previously non-existent marketplace
through hyperlinking attribution (one of the reasons
I always stress putting the source link back to the
URL where the image came from so that anyone 
using or seeing the images can go back to the source
immediately). Take us to court and tell the judge
we are helping you exploit the image, not destroying
its value, bingo, you have one at least one of the
fair use factors and the owner will have a hard time
in most cases getting past the other factors. It may
even become a freedom of speech issue (which
I get to below) like parody fair use that has become
very broad.

Perhaps this is another one of my long winded posts,
but what I am trying to say as simply as I am able
to say it is that fair use does not necessarily mean
incompatibility with FDL, even for uncontemplated
downstream uses. Is it always clear? No, but neither is
copyright issues in any Wiki collaborative project. 
Why? Because as hard as an wiki contributors 
try then can never be certain that the content that 
someone else adds to a pagee is not a copyright
infringment when someone posts it, and when it
is thus made part of an ongoing collaboration
of editing, reorganizing, and/or expansion the
underlying infringement may still be there and
may be very difficult to extract without destroying
the whole collaboration.

Does that stop it from being free? I don't think
so because after it is edited there is always the
argument that it has become part of the article.
There are several arguments that can be used
to support such an interpretation (granted
I have not found any case law on wiki social
software copyright issues and it is hard to
imagine when or how such case law would
develop in the future, but why not get ready
for it before it happens).

Well,besides the preceeding arguments 
there is an argument that a wiki site that is FDL 
is a collaborative work so each subsequent
modifier of earlier work has (some) moral rights
obligation (especially true when the work passes
through a jurisdiction that has strong moral rights
provisions in municipal copyright law) not to 
deface or destroy the other creators' contribution.
(even in the so-called common law jurisdictions
there may be an implied obligation to respect
that ties to collaborative works that may be similar
in scope to moral rights). Adapting the FDL license
to a collaborative process puts a lot of pressure
on the collective aspect of it and would prevent
some kind of rampant misuse of fair use material
 that is used in a respectful way that does not
prevent commercial exploitation of the original
work (can anyone really make a t-shirt from a
200 pixel resolution thumbnail without transforming
it in the process into a pixelated work of art?).

I think of all the issues that Wikimedia might
want to test in the courts it is the question of the
limits of fair use on a wiki. Why? This will show how 
developed and open the transfer of information
has become in a hyperlink society. These references
actually give the author more respect, more
potential to exploit there high quality originals
and it encourages attribution rather than
plagarism, something I think is a problem on
Wikipedia that has yet to rear its ugly head
when done with offline sources (not everything
is posted on the internet). There are other reasons
too (history pages with copyright infringments
on it is one, but I know this post is way too
long already so I won't get into that now).

So I am saying that before we rush to say that
all fair use is bad we should think about it carefully.
It may be very important to has some tolerable
standards for fair use as that may help innocent
infringements fit into the GFDL as well as making
content more free by creatively bending the limits
of fair use into a realm where people can use
even that new related information that is captured
by digital cameras at the scene of the crime (or
historical event, statue, public figure, etc. ,etc.) in
 a very non-creative manner, purely a digital rendering
of an actual event, place, person or thing that might
otherwise be protected by copyright, personality
rights or privacy rights that can be used anywhere
because of its limited resolution and value to general
human knowledge.

True there may be the obvious faux pas, such as the
the 1200x900 graphic lifted from some site, but I think 
that most smaller pixel width contextually relevant 
images are not going to result in a rash of DCMA 
takedown notices hitting Wikimedia/Bomis. If the images
are also reused by forks and other non-similar
downstream licensor/licensees of the information 
hasn't the goal of free content been advanced if it
becomes tolerated?  Why not try to expand the public 
domain a little by taking a bit of a stand?

Just a thought.

Alex756