Gregory Maxwell wrote:
On 7/24/06, Ray Saintonge saintonge@telus.net wrote:
- 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.
There is nothing unethical about removing content from our site which is in clear violation. Submitters of content are not entitled to due process. Wikipedia is not a courtroom.
Of course you have arrogated upon yourself the role of being the arbiter of violations. Just because you oppose any kind of fairness in these issues, does not imply that this is a universal sentiment.
It is, however, clearly unethical to distribute the copyrighted content of others without their authorization.
At the rate you're going it would be unethical to quote anybody without their authorization.
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.
We can not afford, in terms of liability or available resources, to make a legally sound deep analysis for every image on a case by case basis. A simplified approach is required. Fortunately our project isn't centered around distributing legally questionable content, so rules which are more conservative then they need to be legally are generally acceptable.
Why would you want to make these analyses on "every" Image? My complaint is that you wouldn't want to make it on any. Your approach isn't simplified; it's simplistic. A certain degree of conservatism is beneficial, but there still needs to be room for reasonably knowledgeable people to defend what they fairly believe not to be infringement.
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.
Do you honestly believe that a judge would ignore evidence supporting a continued and willful violation of the law in making a determination?
Wilfulness is the element that distinguishes criminal from civil infringement; criminal infringement requires a much higher standard of proof. Until now there has not been a single charge laid so there is no evidence for continued violation. Proving continued violation presumes that every alleged infringement in the series be proven to be an infringement in its own right.
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.
It's a dangerous game you propose here.
What's so dangerous about insisting that contributors accept responsibility for their action, and that WMF clarify its role as an ISP.
A majority of items taken down for copyright infringement are fairly clear cut: the submitter uploaded content for which he is not the copyright holder, no license grant has been provided by the copyright holder, and the material is clearly new enough to be covered by copyright.
A lot of them are clear cut; I'm not disputing that. It will probably also be that many of the apparent violators will not be willing to do what it takes to accept responsibility for their material. Simply making a bald and unsubstantiated claim of fair use is not enough. Some reasonable legal rationale for inclusion would be needed. This would apply to other reasons too, not just fair use.
It would seem that you are proposing in these cases that we ignore the obviousness of the violation and wait for a properly formed DMCA takedown notice before taking action. Since you're so sure that this is an acceptable solution are you able to provide the Wikimedia Foundation with indemnity from losses resulting from taking your legal advice?
Obviousnous is not obvious to everybody. That term is primarily rhetorical. In _some_ cases waiting for some kind of DMCA notice would be the proper course of action, though I suspect that many of these alleged infringements will be taken down long before we get that far anyway.
The losses up to the time of receiving and complying with a takedown order are solely a figment of your imagination, so it would be impossible to determine the value of the indemnity that you want.
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.
It seems to me that you've forgotten that one of the two primary goals of Wikipedia is to provide Free Content. We have failed at that goal when our site contains a huge number of copyright violations waiting for their DMCA notice to come in...
How many is that? How did you arrive at that figure?
So while it is necessary that we remove content once properly noticed, it is not sufficient for us to wait for that to happen.
A large part probably would still be removed if no one accepts responsibility for it. And if it stays long enough the Statute of Limitations may apply.
Ec