[WikiEN-l] Re: Legal paranoia

[Ray Saintonge]

Daniel P. B. Smith wrote:

>> From: Fastfission <fastfission at gmail.com>
>>
>> And it seems to me, as we've discussed on here before, that it would
>> easily fall under the "fair use" clause. We are using an insubstantial
>> part of their encyclopedia; we are using it for our own internal
>> purposes (it is in the Wikipedia namespace, is it not?); we are
>> non-profit; we are not claiming copyright; we are not defrauding them
>> in any way; we are not even looking at the content itself, just
>> bibliographic information.
>
> There is paranoia, and then there is prudence. 

How do you distinguish between them?  Prudence is a frequent argument to 
excuse paranoia.

In a claim of fair use, one needs to consider the four factors.  Let's 
analyse the use of such lists in terms of those factors.
    1.  Purpose and Character.  It is a non-profit usage that stimulates 
creativity.
    2.  Nature of the copied work.  A factual list of article titles, 
without regard to how those titles are expressed, in a standard manner.  
Indeed, our given-name-first way of listing personal names is "more 
original" than the usual way of listing names.
    3.  Substantiality.  A mere list of titles is certainly minor 
compared to the whole articles, and our list will be diminishing in size.
    4.  Market effect.  May marginaly have a positive market effect 
since it's a list of things we DON'T have.  A person wanting the 
information  would need to look it up in the source work.

> SCO's various lawsuits may not have much merit, and it is possible  
> that their case could be on the verge of a spectacular legal  
> meltdown. However, they have managed to cause an enormous amount of  
> expensive trouble. In SCO's case, they are attacking deep-pocketed  
> companies like IBM and Autozone, so there is no point in doing so  
> unless they really hope to win. 

SCO's suits are for patent infringement not copyright infringement. 

> If a traditional encyclopedia wanted to attack Wikipedia--and I don't  
> think you need to be paranoid to assume such a wish--they don't need  
> to win, but only to bankrupt the entity they're suing. Their case  
> doesn't need to be good enough to win. It only needs to be good  
> enough that court couldn't refuse to consider it. 

Before an actual litigation thay would need to go through the 
inexpensive take down order process.  That would give us an opportunity 
to reconsider any good-faith fair use position that we may have taken.

> Using the list of articles from other encyclopedias, merged, edited,  
> what-have-you, sounds like gloriously complicated legal territory to  
> me. It's concrete evidence of copying _something._ Sort of. Kind of.
>
> Could they win? I don't think it matters.

This is the primary argument in favour of copyright paranoia.  Is our 
position based on principles or on fear?  If our only argument is fear 
of successful litigation, what is that but paranoia?  I don't think we 
should simply take on issues solely for the purpose of setting up 
litigation; we should show some care in choosing our battles.  
Principled positions give us more flexibility.

Ec