David Gerard wrote:
On 03/03/2008, Betacommand Betacommand@gmail.com wrote:
Let me make a few points:
All absolutely true, except I'd question this one:
- it only takes one greedy lawyer to shut down the Wikimedia
Foundation, lawyers are not required to send a takedown notice. they can just sue you for everything you have.
I think this is way overstating the dangers - we are BIG (even if the Foundation is actually tiny) and we have a *lot* of friends. If WMF was in serious danger from a greedy lawyer making an overreaching claim, the greedy lawyer would be crushed by a tsunami of donated money.
Of course, that's no reason to be cavalier with non-free content.
Indeed, the argument is just plain alarmist. A religious salesman who happens to be canvassing your neighborhood could trip on your child's toy, break his neck and sue.
If we build a public history of favorable responses to takedown notices that would likely be a factor in any judge's decision. (It's one more reason why all proper takedown notices received should be made a matter of public record.) To sue, the plaintiff will have a high burden of proof to prove actual damages. He needs to take into account his own costs, and to a greedy lawyer probability of winning will be a big factor in his decision to take a case on a contingency basis. If the complaint is found to be unnecessarily vexatious the plaintiff and the greedy lawyer also need to weigh in the possibility that they may need to pay our costs. For a lawyer (especially a greedy one) that can loom large.
Although not a lawyer, I have argued cases in court, and strange things can happen there. It's always tougher for plaintiffs to prove their case.
If a case does arise, a fair-use claim need not have been made on the page to be fair use. As a defence it need not even be mentioned until there is an actual case; the plaintiff who is unprepared for that argument has a case in trouble.
Those who have never been involved in a legal case seem to have the impression that one only needs to look at a statute and everything will be as clear as a revelation from the Messiah. That view is seriously disconnected from reality.
Ec