[WikiEN-l] Re: Copyright and Britannica Article List

[Fastfission]

> If you want to claim fair use for this list, please review and analyze
> the fair use factors and tell us how this list qualifies for fair use.
> Fair use is analyzed on a case-by-case basis, so you can't really just
> say glibly that a particular type of content is always fair use. It's
> the *use* that matters much more than the nature of the original content.
> 
> There *is* creativity involved in a list of what an encyclopedia
> contains, quite specifically due to the selection process involved in
> determining what subjects go into the encyclopedia in the first place.
> 
> I agree that we have lots of dubious claims of fair use, but that
> doesn't make this one okay.

I think an easy thought-experiment here is to imagine what this letter
to EB would look like:

Dear Sirs,

We've created an alphabetical list of articles your encyclopedia
contains, and subtracted from it all articles which we do not have in
our encyclopedia, for the purposes of indicating to our own editors
possible areas of deficiency in our own work.

... Then what? "Do you mind?" "Do you think you'd plausibly claim that
this was copyright infringement?" I don't even know what the next line
would be, because the idea that this list -- one in which we've put as
much "creativity" as was possibly put in assembling it -- would
somehow constitute copyright infringement is -- in my non-lawyerly
opinion -- totally bonkers.

Personally I would contend -- and I think a lawyer could easily argue
in court -- that a list of a table of contents, with many entries
removed, does not constitute a creative work (it is NOT the same thing
as the "creativity" put into arranging their encyclopedia, something
which I still don't think is clear-cut copyrightable at all). More
importantly, I think that EB's lawyers would be worried enough that
such could be plausibly argued that they would NOT bother sueing over
it. They'd have a hard time arguing potential damages -- what, that
they're in the business of selling article headings?

There is likely no simple legal answer to this (i.e., no clear-cut
precedent), BUT there it also seems like a vanishingly small
possibility this would ever be a problem, and enough plausible
arguments that this is NOT a copyright infringement that a
conscientious company would not want to bother with the expenses and
time to attempt to prosecute something which could go either way. As
for non-conscientious companies, there's nothing that can be done
about that anyway, and imagine if Wikipedia ever gets seens as an
organization with money to be sued for, those will crop up on their
own anyway.

So okay. What am I -- not a lawyer, not pretending to be, but just
someone who has read a few books on copyright and patent law --
saying?

1. I doubt that a list of article titles can be considered a
copyrightable work. I doubt that "topics of articles chosen for
inclusion" would be considered a copyrightable work.

2. If so, however, our fair use claims are something like:
    A. Character of use: Research about our own nonprofit
encyclopedia, makes explicit the source of the data.
    B. Nature of the work to be used: Citation information, factual,
published; normally considered necessary for attribution in the first
place, normally considered uncopyrighted. Nothing unique to this
particular source (that is, no more unique than it is in any
encyclopedia -- whether EB or not).
    C. Amount of work to be used: Minimum amount possible -- strictly
logical information, minus a lot of it which we have pruned away.
    D. Effect on market for original: in terms of "arragement," none.
EB sells full articles, not arrangements. If we duplicated their
arrangement and filled in every article content with the words "peanut
butter" it would not give us any market advantage over them -- the
arrangement is not what they sell, the content as a whole is.

3. Copyright law is, more than anything else, built upon lawsuits and
the threat of lawsuits. It seems unlikely to me that EB would:
    A. Care much about this
    B. Think they had much of a case on this
    C. Want to waste their resources finding out
    D. Even consider this an issue if we didn't raise it with them first

Again, I'm not a lawyer, I'm not an expert in this, I'm not even
nonchalant about copyright issues (they'll do us in eventually -- but
just not this one!). I just don't think this is really worth worrying
about.

It does raise the question of whether Wikimedia has their own lawyers
or not, though. If there was at least one person paid part-time to do
these sort of consultations, we wouldn't have to rely on
back-of-the-envelope approaches like this. Law is not something which
functions well by consensus of non-experts, obviously.

I recommend not contacting them and just going with the assumption,
made in good faith, that we're just looking at non-copyrightable
information -- bibliographic, logical, citation, etc. -- that is no
more copyrightable than the titles of articles we use in our
references to our articles.

Anyway -- that's my take on it. Again, not a lawyer. Just another
editor. I don't think there's any easy answer with this sort of thing
-- there never is with most copyright law questions. It'll always be
something in terms of "probabilities," and I think it is far enough on
the "likely not a problem" end of the scale to not worry about or see
any need to take down the page. But that's just my thoroughly
off-the-cuff interpretation.

FF