[WikiEN-l] What constitutes a copyvio?

[Alex R.]

From: "Steve Vertigum" <utilitymuffinresearch2 at yahoo.com>
...
> > is going to infringe and may not have the same fair
> > use defense as Wikipedia
> > will be found an infringer.
> 
> You say "will be found" as if this were a "legal
> certainty." Is  there such a thing where
> hyper-transmission of materials is concerned? Please
> dont point to the current RIAA case-- its likely to
> recieve a severe case of public-advocacy backlash.

I think my logic is straightforward. If they have a fair use
defense (o.k., maybe not the exact same fair use defense
as every fair use defense is fact specific) they they will
not have infringed, but if they don't have any fair use
defense, yes, they will have infringed (that is assuming that
the infringement is straightfoward). That is why I 
put it in as a certainty. The uncertainty revolves around
the application of the fair use defense to downstream
users. I am trying to focus the legal uncertainty there.
...
> (a reason that the editors should retain
> > authorship attribution and
> > copyright IMO) 
> 
> Is this going to happen? How does this jive with the
> open-wiki model?  Again, the democratizing,
> open-source model was never really inline with the
> privatized proprietary model in any case-- it's just a
> matter of time for these things to come to a head -- I
> see no point in changing horses in mid-stream now.  

My understanding of the "open wiki model" is that it
is a model of collaboration. Collaboration, in the artistic
sense, translates into coauthorship in the copyright 
context. If you, I and Jimbo all contribute to an article,
we are all the joint copyright owners of that article.
If someone wants to publish it under the GFDL, they
can, if they want to republish it some other way they
will have to get permission from the coauthors. We 
remain the co-authors, we have all contributed to the
same text (note that the collective Wikipedia copyright
is held by all contributors "collective" is a copyright
term that differs from coauthorship under the law. I
don't see that authors do not retain copyright (they
are only giving a non-exclusive license to Wikipedia,
they can still do whatever they want with the original
text, and author attribution (within the GFDL) is
retained; I am not proposing any changes here.

> > the goal is to create a base of
> > knowledge that can be used,
> > not sidelined because the due dillegence could not
> > be done to show who
> > actually owns the co-author copyright on any
> > Wikipedia article 
> 
> And I take it that "due diligence" does not mean "an
> excess of zeal" either right?  We all are *not in
> disagreement.  Should we (for clarity's sake) now
> better define the term "due diligence" -- or must it
> remain as subjective as the law is itself? :-)

It is not for us to define due diligence, but apply how
the courts interpret it contemporaneously with it
being applied. (that it is why it is better left to the
downstream licensee, perhaps). 

> > effectively
> > making the GFDL license scheme useless except to
> > non-income producing downstream licensees 
> 
> I see, so the whole notion of open-encyclopedia,
> generated by free editor labor, is somehow predicated
> on the possibilty that it will someday must be used by
> someone "for-profit" -- and not merely maintained as a
> perennial world resource ?  Is'nt
> this--philosophically in contradiction to your first
> paragraph--more subject to laws dealing with
> non-profit, for-profit distinctions?

I don't know if libertarians would agree with the notion of
privatization of public knowledge as being contrary to
the libertarian ideal. Remember it is liberatarians who believe that
the profit motive will make public services more effective.
If someone will buy all the lamp posts, they will probably 
figure out a way to make money out of them (or they would
not have purchased them) and ultimately the public good
will be better served (though we may have to look at 
advertisements on every lamp post in exchange for this
commercialization of the public realm). This is another
example of why the commercial non-commercial dichotomy
does not really work (though I don't agree with McDonalds
outlets in hospitals or consumer advertising geared to
grade and high school students, but that is another discussion.

> 
> This is quite clear.  What at issue now are specific
> technicalities --1. Copyviolations in the article
> history only--not in the current version.  -- is it
> necessary to delete an article --or can it simply be
> refactored?  

I still think it is better to delete than preserve anything in
the archives, but my proposal below is an interesting
alternative regarding the history pages being considered
an archive under sec. 108 of the copyright law. The history
pages are not really for public consumption the _same_ way
as the current version of any article, are they?

> 2.  The creation of stubs from copyvio sources.  

 As long as they are rewritten before posted to Wikipedia
this is a valid way to contribute. It imports the facts
without any infringement (or even fair use); ideas or facts
cannot be copyrighted; that is what we are doing here at
Wikipedia (and why the NPOV is also important, there is
no agenda to an article, it presents all points of view because
from a copyright law perspective they belong to no one,
they are part of the "marketplace of ideas" (that is a famous
quote from a famous American jurist, any guess who?)

3. Proper attribution to article source as a
> mitigating factor in a hypothetical claim of
> violation. 

If there are article sources they should _always_ be attributed,
my suggestion is to always put notes about one's sources
in the hidden text; this is different than putting it on the
talk page. If it is in the <!-- hidden text --> it is still part of
the article, the downstream licensee can check the sources
and decide for themselves if there is any infringment or fair
use that might not transform under changed circucumstances.
The same kinds of information goes for fair use attribution.

I have also posted a link to a pdf checklist on the fair use page.
This is the kind of information that should be used whenever
any fair use is claimed. Remember, fair use is use specific, there
is no such thing as general fair use. It _always_ depends on 
the circumstances (I have noticed lots of images on Wikipedia
that are fair use, my question is: Have people been contributing
fair use in text as liberally as they do on photos? If they have,
let us only hope that there was attribution information posted
somewhere so that someone can figure that out.

 >4. The inefficiency of deferential preference to the 
> VFD process over refactoring.

I am not quite sure I understand this. If one deletes and 
starts over, one is not encouraging any copyright violation
in any way. Refactoring is still copying. Better to cite one's 
sources and rewrite from scratch rather than cut, paste 
and refactor, no?
... 
> As long as people are made better aware of this
> fact--essentially, that they are personally
> responsible for the material they submit specifically
> in a civil defamation context.  The issue then is,
> since WP itself is shielded, how much can or will or
> should WP shield its contributors?

It is not just civil defamation, but all kinds of information
based torts that might occur. If someone commits a tort
why should Wikipedia shield them? It should shield the
person who is the object of the tort, no? Wikipedia is
not an insurance company (now that is a way to control
the world, make Wikipedia an insurance company! hee, hee!)
...

> Thank goodness!  But this new notice will take maybe
> an hour for one of the developers to implement. I hope
> the Firmament does'nt get sued before then. 

I hope so!  But damages are not likely.  After all even if 
"we" do get sued, the question is always what are the 
damages and how much did the volunteers work to 
mitigate them for the "victim". We need to watch out for
the Wikipedia victim, not the vandals, violators and 
defamers.

> 
> Thank you Alex. I think that all of this actually
> cleared something up. My spidey-sense is getting back
> to normal.

No. Thank you, Steve for following my argumentation, just
please don't get that spider goo all over the net! And remember,
even thought IAAL, Wikipedia (i.e. its contributors) does not 
give legal advice!

Alex756