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

[Todd Allen]

John Lee wrote:
> On 7/13/07, WikipediaEditor Durin <wikidurin at gmail.com> wrote:
>   
>> On 7/12/07, Erik Moeller <erik at wikimedia.org> wrote:
>>     
>>> On 7/12/07, WikipediaEditor Durin <wikidurin at gmail.com> wrote:
>>>       
>>>> I guarantee you that no consensus will evolve.
>>>>         
>>> Probably not. But a lack of consensus should not paralyze a project.
>>> If a supermajority favors particular policies, that may be an
>>> acceptable outcome.
>>>
>>> Really, if these issues cannot be resolved, that is more symptomatic
>>> for the lack of maturity of decision making processes in the English
>>> Wikipedia than it is for a need for a more specific policy.
>>>       
>> Removing other people's work, or in the least tagging it for deletion
>> has created droves of people who are quite opposed to the principles
>> on which we are founded. They are not interested in free content.
>> They are focused on adding fair use content, and trying to make it
>> stick...usually by making strenuous arguments that it is legal under
>> fair use law.
>>
>> Is the option of opening a consensus targetting forum for these
>> issues open and not yet tried? Yes. But, maybe pessimistic,
>> I doubt it will achieve the effect we want; using fair use minimally.
>> I frankly a bit scared of the possibility that consensus may evolve
>> to liberally allow fair use.
>>
>> A number of us have stated before that consensus to liberally
>> allow fair use can not and will not trump Foundation resolutions.
>> We just need more clarification.
>>     
>
>
> I should think it would be obvious to anyone who has been in a few of these
> debates about our non-free content policies that if a consensus evolves at
> all, it will be definitely one that favours very liberal inclusion of
> non-free content, simply because legally we can. There are also some who
> don't see any conflict between our free nature and the inclusion of non-free
> content that identifies certain things without any discussion.
>
> Johnleemk
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>   
A consensus to "liberally" allow fair use would mean nothing. Most
things are subject to consensus, but the Foundation's been pretty clear
on the matter, that fair use should be minimal if allowed at all. While
that's open to some interpretation, "use liberally and wherever we
legally can" is clearly in conflict with that resolution, so consensus
or not it can't be done. An essential part of minimal use is that the
fair-use content is irreplaceable, and also that it serve to
substantially enhance the educational value of the article it's used in.

Also, who determines whether we legally can, anyway? I'm not a lawyer,
are you? What constitutes fair use is a very fuzzy area of law, even
experts sometimes have difficulty determining whether a given use would
be fair or not. The reason for making sure we stay well away from the
edge areas is because most Wikipedians don't have the legal knowledge to
get close to that edge without actually crossing it, and the few who do
are here to edit the encyclopedia, not provide free legal advice on
thousands upon thousands of images.

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