On 11/15/06, Gregory Maxwell gmaxwell@gmail.com wrote:
Because of the above point, I'm not sure how you arrive with "most I've seen" being clear cases of fair use under the law. Could you clarify: I think we're either working with a different definition of fair use, or talking about a different set of images.
I think you slightly misunderstood the point I was making, which is that vast proportions of the images on en: which are claimed as fair use are actually cases of making up fair use justifications for images which are free-to-use but have been made available under licenses which have been deemed unacceptable for use on Wikipedia because they are free to us but not necessarily free to all who could re-use our text under the GFDL.
I'm not necessarily claiming that the fair use justifications hold water - some do, some don't - but in a vast majority of cases in my experience (which, granted, may not be typical) are not cases where we would actually have to rely on a fair-use defense in court. We already have permission, generally through license terms which permit an non-profit educational organisation/project like Wikipedia to use the image.
This is definitely the case in e.g. most of the 'promotional image' fair-use categories. Legally speaking, we are taking very little risk using those images, because they have generally been released free to the media to use. They probably do NOT have an explicit license on them that is compatible with the GFDL, however, even though they are de facto free for most uses.
There are other categories of claimed fair use on Wikipedia where the fair use claim is actually one we'd have to use: e.g. historic photographs, artworks still protected by copyright, etc etc.
I guess what I'm saying is that because the only non-free category permitted on en: is fair use, if someone wants to use an image that they don't have under a free license (under our definition of such) they will attempt to justify it as fair use. In that case, what the fair use claim actually means is 'even though Wikipedia can use this image for free anyway, commercial re-users may be able to use it under fair use'.
I've done this myself in the past - coming up with fair use justifications even though Wikipedia already has permission - granted this was a couple of years ago and Wikipedia's image use policies have changed quite a lot since then.
In most of these cases, Wikipedia is not in itself in any legal risk - the free-content goals of the project may be at more risk, of course.
-Matt