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

[George Herbert]

On 7/25/07, Todd Allen <toddmallen at gmail.com> wrote:
> Bryan Derksen wrote:
> > Steve Summit wrote:
> >
> >> Todd Allen wrote:
> >>
> >>> The point isn't -only- "Will someone sue Wikipedia over this?" or even
> >>> "Will someone sue a commercial mirror over this if they inadvertently
> >>> use it too?" It's "Unless we absolutely -must, must- have nonfree
> >>> content, we should keep nonfree content off the -free- encyclopedia."
> >>>
> >> Bearing in mind that not everybody agrees with this last principle.
> >>
> >
> > And also where the "must have" line gets drawn. A lot of people feel
> > that articles about music albums must have a cover scan in order to be
> > "complete", and IMO a valid case can be made for that.
> >
> > Amazon is way more commercial than most of our mirrors and they seem to
> > consider cover scans both important and safe to use.
> >
> >
> > ------------------------------------------------------------------------
> >
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> Oh I'd agree we're legally on very safe ground there. I can't imagine us
> getting sued over an album cover, nor can I imagine anyone winning in
> the unlikely event they were to try. It's certainly nothing like putting
> up mp3s of the songs on the CD.
>
> However, our criteria are -deliberately- far more narrow than "Can we
> legally use this image?" They're fully intended to be so, else we would
> use permission for Wikipedia only, noncommercial use only, and publicity
> releases everywhere we could. The idea here is to build a free content
> encyclopedia, and every use of nonfree content harms that mission. We
> must look carefully in each individual case to determine whether that
> harm is in that case outweighed by the educational benefit the image
> provides. I don't think the answer is always "no, we should never use
> nonfree content under any circumstances" (as some do, and as de seems to
> do alright with), and I don't think the answer is always "yes, if we can
> legally get away with it", or always "yes, if it's an article about
> a..." (as some do). It's something that should be evaluated case by
> case, image by image, article by article, not with broad strokes.

No, that's silly.  We can easily make a determination that broad
classes of stuff are either just always ok, or never ok.  Every time
we're able to do so, we reduce what people will end up arguing over
on-wiki.  If we have a blanket "Company Logos are OK", then the next
round of  missing fair-use justification deletes can just skip logos,
etc.

I also object to claiming that we have to only host truly free content
in order to protect free content's sake.

We need to ensure that content we host is safely usable by Wikipedia.
 By safe, I mean "in compliance with generally accepted principles,
commonly used by other media and references, as far as we can tell in
compliance with the laws that are relevant, and unlikely to be
controversial with copyright or trademark holders".  (check, for
logos, and for album covers)

We should ensure that our noncommercial (check) and commercial (check)
mirrors can use the content safely.

We should ensure that foreign users can also redistribute it under
normal usage abroad (check), barring particularly odious local
copyright rules (and keep in mind, that FREE CONTENT isn't compatible
with some of the local copyright rules..).

The reality is, that things like logos and album covers are to some
degree "free content" already.  They have a copyright owner, and
trademark status in the case of logos, but they're there and used and
intended to be used to identify the company or album etc.  "They
haven't released all rights under free licenses..." is generally true,
but for these classes of items, they don't have to.  The usage that
we, or another reference source, could make of them is standard
expected usage in the legal environment.


-- 
-george william herbert
george.herbert at gmail.com