[WikiEN-l] Fair use issues; we need serious help

[WikipediaEditor Durin]

Greetings...

On en.wikipedia, fair use images are allowed so long as they comply with
the fair use criteria as stipulated at http://en.wikipedia.org/wiki/WP:NFCC.

Recently, and especially subsequent to the Foundation's resolution
on licensing, significant efforts have been made to bring en.wikipedia
in compliance. A large number of users have engaged in activities
intended to bring images in compliance with our policies or be deleted.
There's been several key debates/events in this process:
* Images/screenshots in episode lists have been removed. This
  was reported in Signpost
  (http://en.wikipedia.org/wiki/Wikipedia:Wikipedia_Signpost/2007-05-07/Fair_use)
* User:Betacommand created a bot (BetacommandBot) to tag images missing fair
  use rationales (a requirement under the fair use criteria) as
missing them, placing
  them for deletion. This was debated in a number of places, most notably at
  http://en.wikipedia.org/wiki/Wikipedia:Administrators%27_noticeboard/FURG
* Images in music discographies are being removed
* Based on dumps from May, a list of articles where fair use images were used
  in large numbers was created and is now being worked on by several users. See:
  http://en.wikipedia.org/wiki/User:Durin/Fair_Use_Overuse
These are not the only efforts underway, but should serve to demonstrate
what is happening.

Some of the problems that are happening, using a broad paintbrush:
*  Some users are insisting that if the Foundation hasn't taken a position
   specifically against fair use images being used in say discographies, that
   it is therefore acceptable use.
*  Some users have insisted that the bot tagging images missing fair use
   rationales be permanently blocked. Further, that the deletion policy for
   such images (WP:CSD I6) be suspended.
*  Some users have been debating, at great length, that boiler plate fair
   use rationales can be used to bring these images in compliance. This is
   in large part due to the idea that fair use criteria is sufficiently met if
   the fair use image serves to __identify__ the thing in question. Under
   this argument, it is not necessary to have any critical commentary
   regarding the product being displayed, or the cover art/logo being
   displayed.
*  Debates that have previously occurred, even recently, are being disputed
   as not achieving consensus. Yet, those attempting to act to bring our fair
   use images in compliance are acting under policy and the Foundation's
   resolution. It is frequently noted that consensus does not always trump
   policy, or indeed our very mission to develop free content. These debates
   are becoming endless, with no way to seemingly satisfy all parties.

I am summarizing in short as much as I can. Please understand that these
debates have been heavily rancorous at times, almost always long winded,
repetitive, and unending. Just about every negative word you could think
of a debate would apply to the sum of all that has happened on this overarching
debate in the last three months since the Foundation's resolution.

I am not looking for people from this mailing list to jump into the debates
and speak their minds in support of one camp or another. That will do
nothing to end this terrible situation.

--- What I think needs to be done ---
A clearer stance from the Foundation needs to be made with specific
regard to fair use on the English language Wikipedia. In particular, this
stance needs to clearly indicate one of several possible stances:
1) Fair use may be liberally used wherever it is legal within the confines
    of fair use law in the United States.
   - This is a stance that one side of this issue insists is acceptable.

2) Fair use may be used if it serves to identify a given thing, such as
 an album, book, person, etc. No critical commentary on the image
 in question is needed; just that it serves to identify.
  - This is one interpretation of the current policy. Many people feel
  this interpretation is correct. Many people feel it is not.

3) Fair use may be used only if it discussed within the context of
 critical commentary inline with the article, thus the image is necessary
 to the text of the article itself.
  - This would greatly diminish fair use usage as it would remove logos,
  book covers, album covers, and quite a number of other possible
  types of images. It would retain images that are significant to the text
  of an article, including unusual book covers, album covers, logos, etc.
  where critical commentary on the design was present.
  - Note there is a further division of this stance as there will be some
  that will argue that if you are discussing a book, displaying the book
  under this stance would be ok. Which is it? Commentary on the contents
  of the book or the cover of the book?

4) Fair use works may not be used at all.
  - This would bring en.wikipedia in line with other language Wikipedias,
  but has the drawback of eliminating highly significant photographs
  relevant to articles about the things depicted in those photographs.
  It could be modified to have an exclusion for historically significant
  images, but this reduces the bright line effect of this stance.

I know that Jimbo has stated a personal stance of limiting fair use
to highly historical photos. Stance (3) above supports that, but is
more broad. Stance (4), if modified, could support that. Stances (1)
and (2) can not.

Our current situation is very murky. The debates are endless and
are getting nowhere. People are acting to support perceived policy
and resolution, but are being called vandals often enough and
reverted numerous times. There is no clear line, and nothing
in policy that provides us with a clear delineation of what is
acceptable and what is not.

While fair use law is deliberately vague and does not provide
a bright line, I feel we must provide one in policy for en.wikipedia if
we are to have any chance of achieving the targets laid out in the
Foundation's licensing policy
(http://wikimediafoundation.org/wiki/Resolution:Licensing_policy).

Personally, I have been attempting to support our fair use policies
for a year and a half now. I have been attacked for it more times
than I care to account. I've been called an extremist, disruptive,
fair use nazi, revisionist, and all manner of assorted attacks. I am
growing tired of endlessly trying to explain to users that we are
a free content project, and our fair use policy is a superset of
law. I'm about ready to throw in the fair use towel because of my
perception that at a fundamental level, this issue doesn't matter
enough to the Foundation for the real power of this project to
step in and clearly support our mission. The licensing resolution
helps, but has suffered multiple interpretations locally.

On en.wikipedia, there are approximately 200 thousand fair
use, copyrighted images of ~750 thousand images total.
This is a major, major undertaking to bring ourselves into
compliance. Yet, in three months we've barely made a dent
affecting only a few thousand images, and fixing a similar
number of articles. At the rate we are progressing, the nearest
date we could come into compliance would be ~5 years from
now. Further, we'd have a huge amount of effort wasted in the
process debating endlessly over this subject.

Please help us.

Respectfully,
-Durin