[WikiEN-l] Fair use redux; the second coming of hell; Are we a free content or aren't we?

George Herbert george.herbert at gmail.com
Thu Jul 19 20:54:30 UTC 2007

On 7/19/07, WikipediaEditor Durin <wikidurin at gmail.com> wrote:
> This gets to one of the core disputes on the subject; is fair use for
> purposes of identification alone sufficient to meet our requirements
> for the inclusion of non-free content?
> People who advocate for fair use inclusion say yes, because it is
> legal. Of course this misses the point of what we are supposed to
> be fundamentally, but even when this is raised they fail to see an
> issue. Thus, any encroachment on the ability to use fair use for
> identification without critical commentary is harshly criticized,
> reverted, and argued over.

Let me be a bit impolitic here.

There's a dynamic between two sets of people here on the project;
those who want to build the best possible encyclopedia, and those who
want to build the best possible set of completely open content.

On some of the foreign projects, either the law or the local set of
people have decided that it has to be completely open content.  That's

The greater majority of the active participants on the English
wikipedia do not, in my judgement, agree.  A majority of us are
encyclopedia-first-open-content-second.  In my judgement, it's a
majority of senior editors and admins, and a great majority of normal

I understand that this is frustrating to those who come to the project
looking for open-content-first-encyclopedia-second.  I understand why
it's causing tension.

But the reality is that it's not just your project; it's all of our project.

Images matter.  The old saw about "An image is worth a thousand words"
may not be precisely accurate, but there's significant value to having
images.  Human beings, readers of the encyclopedia, are very visually
oriented.  Anyone who feels that a text-only encyclopedia in areas
where images are by nature fair-use is ok is greatly misunderstanding
how humans take knowledge in and remember it.

Is this a project for our writers/editors?  Or is it a project for our readers.

If this project is oriented towards "us" (the editors/admins) then it
would be reasonable to impose our philosophical open content demands
on it.

But I disagree that it's really for us.  The value isn't in what we're
doing with it; it's in what everyone else is doing with it.  You would
not get millions of articles out of a group of a few thousand active
people talking to each other for fun.

The question of value for readers really isn't concretely arguing for
using fair use content either; there's the complication of
distribution of fair-use content to other languages, other mirror
sites, etc.  But using the fair use material significantly helps the
english wikipedia, and only hurts other projects if having it turns
out to discourage the creation of open content.

There are three broad categories of fair use images used.  One is
where an event happened and is past, and nobody can go back and
re-take a replacement open license image.  Another is where the nature
of the material - a screen capture from a film, tv show, album cover
scan etc - is by nature copyrighted, and any attempt to illustrate the
character or album or show will by nature have to be fair use.  The
third is a potentially replacable image, but one which hasn't been

The first two categories are not replacable.  You can tell us not to
illustrate those articles, but if you force the issue by actions or
attempt to remake policy, then call it a vote or consensus or
whatever, the fair use inclusionists will win the fight due to sheer
numbers.  The Foundation policy covered such use, the policies in use
now for labeling them cover such use, and a majority of people who
care support their use.  The claims that there has to be some sort of
additional commentary or critical analysis isn't legally supported and
is seen by fair-use supporters as a smokescreen for radical
open-content-only deletionism.

The third category, replacable fair use, is much more of a grey area,
and one where the fair-use-discourages-open-content-generation
argument may have some traction.

The pity here is that a number of people are setting up an unnecessary
conflict.  If you really truly believe in making everything as open as
possible, a project to focus on replacing every replaceable fair use
image would probably gain some ground.  Doing that is not taking
anything away from articles, and is something that even the
encyclopedia-first people can agree is good and support.  If you made
a really active project and applied peer pressure to people, you could
probably get a lot of the encyclopedia-first people going along...
Despite being an encyclopedia-first type myself, I have spent
significant time and effort on generating open content images
specifically for the project, and would do so more if I had more
bandwidth and more people helping out.

Do you want to try and fix the situation by fighting people (and,
ultimately, losing in a terrible fireball), or by creating open

Pick your fights.

-george william herbert
george.herbert at gmail.com

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