Gregory Maxwell wrote:
On 7/21/06, Anthony wikilegal@inbox.org wrote:
Here's one: when people send in a DMCA takedown notice, remove the material, notify the uploader that her materials have been removed (via their talk page and email if the address is known), and provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed.
[snip]
Making this our practice for handling copyright would put us in a weak position in several respects.
- It is ethically questionable. When we distribute someone's
commercial work tagged as free content, we risk seriously letting the genie out of the bottle. It would do us no good to gain a napster-like reputation.
What makes it unethical? Is it any more ethical to deprive people of due process if they can make a reasonable legal case. This is not a matter of agreeing to every stupid argument that comes along. This has nothing to do with genies or Napster.
- It creates panic-intensive situations.... When a violation is found
it's likely that there will be a lot of them creating a lot more work to quickly clean up.
If the copyright paranoiacs want to put themselves into a panic, why should the rest of us fall into line with them. Each case needs to be judged on its own merits.
- If we do enough of it, it wouldn't be hard to convince a judge that
our behavior is negligent (we already have a lot of egregious infractions and we're trying.. I can only imagine what we'd have if we didn't try) and get a lovely injunction issued that required us to remove all images that we can't prove are free. :(
Each incident is separate, and other instances would be inadmissible as evidence to prove that a specific incident is an infringement. This position is pure speculation.
But most importantly: 4) Wikipedia is intended to be and advertised to be Free Content. By only removing copyright violations that people have complained about we would be choosing to fail at this goal... and in doing so we would make the fruits of our labor less useful to the world.
Ultimately, only a judge can decide whether a contribution is in fact a coyright violation. We may suspect copyright violations; we may demand that a contributor accept responsibility (and define what that means), but we can rarely make a definitive statement that a particular writing or image is in fact a violation.
In short, while being a nice legal fall-back, the safe harbor terms are not anything we want to rely on in terms of our copyright policy.
It's not merely a fall back, but a first step in arriving at a formal decision. When a properly composed notice is issued we must remove the offending material.
Ec