[WikiEN-l] Non-free images, there has to be a better way

[Ray Saintonge]

Fastfission wrote:

>On 7/6/05, Ray Saintonge <saintonge at telus.net> wrote:
>  
>
>>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.
>>    
>>
>I don't agree with this -- from my understanding, "fair use" depends
>heavily on context, use, purpose, intent, etc., very subjective
>things. Something which could be plausibly claimed as "fair use" in a
>non-profit encyclopedia setting could easily be infringement if moved
>into a slightly different setting.
>
>Example: A court might buy that an image of Mickey Mouse for an
>ad-free, non-profit encyclopedia article would be "fair use." If the
>same content appeared on an ad-driven, for-profit website, though, a
>court could easily say, "You're profiting off of their copyright,"
>which would certainly hurt "fair use" claims. "Fair use" is very
>context and use dependent.
>
We don't really disagree that much.  The criteria that you mention are 
at the heart of the matter, and they are subjective.  If we claim fair 
use that claim must be clearly stated.  The downstream user can take 
that as a warning.  Ideally we want downstream to be able to use things, 
but we can't possibly imagine every permutation of use that could occur. 

>>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.
>>    
>>
>I agree, which is why I find the current policy somewhat nonsensical
>-- i.e. , "free use except for commercial use" requires no more or
>less diligence by the end-user than "fair use" licensing.
>
Even fully free licensing should not absolve him from due diligence.

>>An illustration under a relatively free licence may still be fair use.
>>    
>>
>If it is "fair use" then you are ignoring the license alltogether and
>it doesn't matter, of course. But I think a relatively-free license is
>better than completely ignoring the license.
>
I don't suggest ignoring the licence.  Fair use and licensed use can be 
determined separately.  Neither invalidates the other.  If both apply 
our use is strenghthened.

>>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.
>>    
>>
>You think so? I don't see any signs that this would be beyond being
>"realistic." People have been sued or threatened to be sued over less,
>and slightly more. Now whether they would win or not, who knows. But
>if anybody is making a cent over Wikipedia's displaying of other's
>copyrighted material... I'd be a little nervous. Even without it I'd
>be a little nervous. "Realistic" and "reasonable" does not well
>describe U.S. copyright litigation these days, in my view of things.
>
AFAIK we have not yet received any official take-down orders.  That's 
disturbing in its own peculiar way.  Receiving a few of these gives us 
an idea of which way the wind is blowing.  Without them we are only 
speculating about what might happen.  Until we receive such notices it 
should be enough to be reasonable.  Winnability should not enter into 
the discussion until after the notice.  So far, case reports don't give 
a conclusive picture, but some decisions have been favorable.  I'm 
probably more optimistic than you.

>In my mind, the view that this won't be a major problem for Wikipedia
>down the line -- and that Wikipedia will necessary win such a conflict
>-- seems much like the teenager who is not yet aware of his own
>mortality. 
>
The teenage technique of ignoring the problem is not dependable.  Any 
use of fair use material should be done with wide open eyes.

>There are more images labeled fair use than I can count --
>1,000 deep and I am still in the A's. Anybody have a better way to
>estimate it? 
>
Find the number of total pages considered and extrapolate.  The "A"s are 
probably better covered than most letters.  The size of the task 
discourages people before they get any further, and they just give up 
before looking at the letter "B".  The letter "V" probably still stands 
for "virginal" :-)

>What, 10,000-20,000 pieces of copyrighted content that we
>use in defiance of their copyright holders, paying not a cent, hiding
>behind the defensive, feeble, and unreliable "fair use" clause in a
>nation where every congressman is preaching Big Media's jeremiad about
>copyright infringement destroying the economy? Sounds to me like the
>makings of one heck of a class-action suit...
>  
>
Ignorance is not defiance.  You can't defy without understanding what 
you're doing.  I don't think that the fair use clause is feeble at all.  
Have the media declared their conflict of interest.

Ec