[WikiEN-l] Getting rid of bad fair use

[Fastfission]

On 5/19/06, Anthony DiPierro <wikilegal at inbox.org> wrote:
> On 5/19/06, Bryan Derksen <bryan.derksen at shaw.ca> wrote:
> > Anthony DiPierro wrote:
> > > IOW, no, the desires of the copyright holder have no bearing on
> > > whether an image can be fairly used, because the fair use defense
> > > presumes that the copyright holder objects to the use.
> > >
> > > I'm not a lawyer, but this seems like pretty simple logic to me...
> >
> > I thought so too, and another editor who _is_ a lawyer (User:Bobak)
> > looked at the situation in a fair bit of detail and agreed with my
> > logic. But UninvitedCompany claimed at the end of the deletion review
> > entry
> > <http://en.wikipedia.org/w/index.php?title=Wikipedia:Deletion_review&oldid=50533958#Image:O_RLY.jpg>
> > that the Wikimedia Foundation lawyer had had a look at the situation and
> > said it should be deleted.
>
> Please note that I never said it shouldn't be deleted, merely that
> fair use applies regardless of whether or not the copyright holder
> objects.
>
> Also note that lawyers tend to take the safe route on these types of
> things - especially when the benefit of taking chances with the law is
> negligible.
>

Yes, but fair use is a defense, not a right. And our policy can only
hope to make sure we would have a good defense. But in reality, we
don't really want to fight at all -- we've got better things to spend
our donations on, and the lack of one image will not sink an
encyclopedia (whereas a lawsuit could).

So yes -- you are right on the law, assuming of course that we ended
up in court AND won AND the judge agreed with our fair use assertions.
But our fair use policy is really trying to be a few rungs above that
on the causality chain.

I tried to write up something on this at one point, at
[[Wikipedia:WikiProject_Fair_use/Preemptive_fair_use]]. It's woefully
out of date now, perhaps for the better (policy has changed a lot
since August 2005). But I still think it is a generally good way for
thinking about the policy in this case.

FF