KWH wrote:
On 3/23/06, "Matt Brown" morven@gmail.com wrote:
Fair enough. Is it required that the original uploader provide the fair use rationale, or can someone else? If we require the original uploader, that might be a problem. If you're not the original uploader, but provide a rationale, are you thereby assuming responsibility for a copyright lawsuit?
I've done a bit of thinking on this, and I believe that whoever includes the image tag in the article would be responsible for preparing a work containing the fair use material. If User A uploads the image, B puts it in the article, and then C breezes by and puts a fair use justification, then B would probably be responsible; but if D comes by and corrects a typo in the article and leaves the image tag in, then D could become responsible.
As a non-American with little knowledge of U.S. law, I'd nonetheless find it unlikely that in your scenario D could be liable. The way I'd expect a court to see it, should it ever come to that, is that whoever made the (implicit or explicit) claim that "this image may be fairly used in that article", or acted based on such a claim made by another, _when they should've known better_, would be liable.
D, who only corrects a typo in an unrelated part of the article, could hardly be expected to know that the fair use claims made implictly by B and explicitly by C are in fact bogus. Unless, perhaps, the copyright violation was _really_ blatant and obvious; but if one were to argue that, one might as well argue that anyone who read the article without fixing it is also liable. I doubt either argument would actually fly.
As for the liability of B, that would rather depend on what, if any, description A provided when they uploaded the image. If A claimed the image was PD-self, and the image was such that B would've had no reason to doubt that claim, then it would be A's fault for misleading B. But even than C might still be held liable, since, in providing the fair use rationale, they could be assumed to have been aware that A's claim was invalid.
Of course, in practice there'd be a lot more to it than that. For example, a court might certainly debate about exactly how much due diligence an editor could be expected to apply in verifying claims made by other editors. And certainly lawyers would be expected to make all sorts of claims and counterclaims, however weak, just in case they might get lucky. Not to mention the possibility of local laws that might explicitly create a presumption of "should've known better" on certain individuals that in other jurisdictions might have no such responsibility. Or...
In any case, the practical guideline I would draw from all this is to use common sense in making or acting upon fair use claims, and to assume that one _might_ assume liability in doing so if one did not apply due diligence. "Trust, but verify."