[WikiEN-l] In defence of properly-used fair use images (was Image:Wp ayb.gif)

[Ray Saintonge]

Fastfission wrote:

>On 1/20/06, Ray Saintonge <saintonge at telus.net> wrote:
>  
>
>>Absolutely.  Unfortunately, there are extreme views at both ends of this
>>spectrum.  The simple fact that publishing an image would somehow be in
>>the public interest is not enough to defeat someone's copyrights.  On
>>the other hand it is also simplistic to say that because there is a
>>subsisting copyright the image cannot be used at all.  "Fair use" is a
>>tool on the path to free use that can be used to great effect in the
>>right circumstances.  By rejecting it completely we also make it easier
>>for those favoring more restrictive copyrights because they can now take
>>the abandoned ground unopposed.
>>    
>>
>I think in regards to Wikipedia policy there are two options:
>
>1. We reject all fair use images in favor of entirely "free" ones. One
>could read this as a retreat from copyright holders (as you imply
>above), or one could read this as the only genuine way to create truly
>free cultural products. Commons embraces this approach (with the
>latter reasoning), WP:En does not.
>2. We approach fair use reasonably, not being afraid of using it where
>we need to and with a philosophy of "least likelihood of anybody
>thinking they could sue us and win." This solution is not the
>*easiest* one -- it rests on subjective and often uninformed
>interpretations of an ambiguous part of U.S. copyright law -- and nor
>does it necessarily accomplish the primary goal of ultimate
>redistribution freedom (in fact most countries do not have statutes
>anywhere as lenient as the "fair use" provisions in U.S. copyright
>law), but it lends itself to producing a more "complete" and
>"professional-looking" encyclopedia. It also might mean that we are
>making some sort of stand about the limitations of copyrights, but I
>suspect this is only a secondary motivation or interpretation. In any
>event, this is the policy we current follow on WP:En.
>
It should be quite clear by now that I strongly support the second 
option.  Still I would be more inclined to base it on a fair-minded 
attitude in preference to one based on what could happen in a law suit.  
Fair mindedness involves taking into account the rights of others.  A 
person who claims fair use should indeed have some elementary 
understanding of what he's talking about.  Ultimate redistribution 
freedom can be a big problem, but putting too strict a definition on 
that can lead to all sorts of dilemmas.  I know that most of our 
discussions have focused on images, but the fair use law that applies to 
images is the same one that applies to text, and for me disallowing all 
fair use text would imply disallowing properly attributed quotes of 
one-sentence length.  Purpose is key to one of the fair use texts, and 
we have no way of controlling this in downstream users.  Perhaps we need 
to assume that the downstream use will fail that test.  Is it the most 
important of the four tests?  Since no one test alone is determinative, 
can a usage which fails that test satill be fair use when it passes the 
other tests?  Once we answer that in a US legal context, we will have a 
better idea of how to approach that problem in relation to other countries.

We can't duck from the political motivation, but it must remain 
secondary.  Before that can be a real motivation we need to be very 
aware in the legal areana.

Ec