[WikiEN-l] Getting rid of bad fair use

[Ray Saintonge]

sannse wrote:

>I'm speaking here as someone who works on OTRS, so has to looks at cases 
>like this all the time (I'm not claiming extra authority from that, just 
>extra insight).
>
>What it comes down to is that fair use is not a right, it is a defense. 
>
Wrong!  It is both.

>The only way to fully show that any image is used legitimately under 
>"fair use" is to go to court and win a case where you use this as your 
>defense..
>
In theory, yes.  But is is unrealistic to expect that anything but a 
very small fraction of fair use claims will ever be tested in the 
courts.  If it ever gets that far each instance will be decided on the 
basis of its own facts.

>In this particular incident, a person with an apparently legitimate 
>claim to the image asked us to remove the image, with the understanding 
>that he was willing to defend his rights and test our defense in court.
>
How do you recognize a bluff?  What's wrong with saying that you are 
willing to comply with a proper takedown order when he issues it?

>Now you may believe, and you may be right, that we would win that 
>case... but it would be at a significant financial cost (and possibly 
>significant other costs, but lets stick with the financial for now).
>
>The advice the OTRS team were given was to remove the image.  Quite 
>sensibly, the foundation doesn't want to pay that cost out of our 
>donations, for the sake of an image that can be linked to without /any/ 
>risks of costs and no significant loss of content.
>
There are no costs to Wikimedia unless it refuses to comply with the 
takedown order.

>However, if anyone wants to agree to pay all legal costs in defending 
>the use of this image - and it is /highly/ likely that there will be 
>some if this image is used - then I say go ahead!  I'm sure Danny can 
>arrange for a contract to be drawn up with that agreed.  I'm not sure of 
>costs in the US - but I guess a few thousand as a down-payment for 
>initial legal advice would be sensible too.
>
Good!  There is no need for contracts or anything of the sort.  Once you 
have supplied the uploader with a copy of the takedown order the ball's 
in his court.  I can't speculate what his legal costs would be; they 
would certainly be less than what you suggest if he argues his own case.

My whole point is that there are established legal procedures for 
dealing with allegations of copyvio.  They should not be shortcut by 
your prematurely judging the outcome.

Ec