Fastfission wrote:
I'm coming into this a bit late, but the silliest thing about this policy is that the two types images currently allowed under Wikipedia policy are one with a free license, and ones without any free license at all except our somewhat dubious pro-active claim of fair use (fair use in the U.S. can only be used in defense, it cannot be used offensively).
I agree that fair use is essentially defensive in nature, but a fair use is that from the time that the image is put up. By definition if something is used in fair use it is not a copyright infringement. If something is determined to be fair use it will be so irrespective of the licensing situation.
Now I understand the importance of having free licenses, but I think it is very silly that images licensed for non-commercial use are singled out as "non-free" while slapping "fair use" on anything seems to get by without so much as the raising of an eyebrow most of the time.
And so it should, as long as the person slapping on the tag is aware of what that means, and is prepared, if asked, to evaluate the situation in terms of the fair use criteria in the law.
Let us say this is about content providing -- i.e., we don't provide things that others can't use. I don't see why "fair use" images would be any different in this respect -- the individual user is going to have to evaluate whether their particular use of the image is still covered by fair use, whether they want to take that gamble, etc. If non-profit Wikipedia feels comfortable using copyrighted images of Mickey Mouse and claiming fair use, great, but any future for-profit encyclopedia is going to have to answer for themselves. "Fair use" is just as conditional on context and use as any "permission for anything non-commercial" -- perhaps even worse, since pre-emptively claiming fair use is playing with legal fire as it is.
All downstream users should exercise their own diligence. Although we try to use images that can be used safely by them they still know their own circumstances best.
If we are only going to provide "totally free" content, we should eliminate all fair use images as well. If we are not going to do that, we should not worry so much about images which are licensed under relatively free licenses -- i.e., free for use with acknowledgement, free for use in non-commercial settings, free for use just on Wikipedia, etc.
An illustration under a relatively free licence may still be fair use.
Claiming "fair use" in general seems legally problematic to me in general but I'm not a lawyer. I could imagine a very clever Disney lawyer saying, "Well, Wikipedia gives the impression that its content is 'free', and puts our images right next to the rest of their 'free' content. If Wikipedia was just trying to make their own non-profit encyclopedia, that would be one thing, but since they are also trying to provide an open-source, re-distributable content, they are actually in the business of telling people our copyrighted work is of questionable legal status, which we must affirm to the contrary." Whether such an argument would hold or not is not something I know, but it would be a messy thing nonetheless. And rest assured Disney Corp. would be no more worried about the "legions" of nasty e-mails they might get from Wikipedians than Microsoft Corp. does from the Open-Source movement members.
This is an extreme example. Even a litigiously protective organization will see a single still of Mickey Mouse as fair use. It's effectively free advertising for them. You're speculating about the thinking of a potential legal opponent who is speculating about what we are doing.. At least give them credit for a minimal ability to be realistic.
Ec