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

[John Lee]

On 7/13/07, Todd Allen <toddmallen at gmail.com> wrote:
>
> John Lee wrote:
> > 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.
>
> 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.


Tell that to the people who insist otherwise, then. This also doesn't help
with those who insist that unfree content is perfectly fine as long as it
identifies something the article alludes to, not just because it's legal,
but because it flies under their interpretation of WMF policy.

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.


I'm not, and my only legal training has been in the area of English law
anyway, but that doesn't matter, because there are a lot of instances where
something is plainly fair use under American law (as in, there's a 99%
chance a court would find it was fair use) but still plainly inadmissible
under our non-free content policies and the principles behind them. Dealing
with these cases is a headache as long as our anchor non-free content policy
is titled [[Wikipedia:Fair use]] and conflates fair use with non-free
content.

Johnleemk