[Foundation-l] Fair Use (again)

[George Herbert]

On 1/30/07, rfrangi at libero.it <rfrangi at libero.it> wrote:
> > That may not be true in 10 or 20 years, but for now, we should embrace
> > Fair Use and use it.  Fairly, legally, and stomping on those who would
> > attempt to abuse Fair Use in our project, but we should embrace it
> > nonetheless.
> >
> >
> > --
> > -george william herbert
> > george.herbert at gmail.com
>
> I beg you all, please consider that a considerable part of the contributors to Wikimedia projects (and possibly a considerable part of people willing to reuse commercially its contents) cannot embrace fair use, simply because fair use does not exist in their legislation.
>
> And once again, if the point is to stick to the GFDL, fair use contents is not compliant.
>
> If the ponit is "articles look better with... whatever", some go for fair use, some others go for NC images. And even if I don't want neither, I have to say that fair use is something decided by the user (possibly wrongly), NC is something decided by the author (thus safer from the point of view of a legal action).


One of the terrible problems (not with Wikipedia specifically but the
Internet in general) is that cross-border copyright issues remain
rather muddled.

Imagine for a moment a Wikipedia in which all content is hosted in the US.

If a US editor uploads an image which clearly falls under US fair use
doctorine (say a PR photo, for which the owner could not reasonably
survive a motion to dismiss if they sued WP for infringement in the
US), US law protects the editor, Wikimedia Foundation, and presumably
readers worldwide.

If a German editor uploads a photo from a German company PR site (I am
informed Germany has no Fair Use, but am not an expert here; this is a
hypothetical example), to a German language Wikipedia hosted in the
US, it's not clear that German law has any effect on the servers in
the US or the Wikimedia Foundation.  US courts have generally refused
to allow foreign copyright law to apply to web content in the US.  The
German editor might be at risk for a suit, however.

The situation is more complex if we have servers hosted somewhere
which doesn't recognize the right.  Technically, someone in that
locale could possibly sue using their rules over content on the
en.wikipedia site, depending on local law.

This would seem to indicate that we're in danger just by having foreign hosting.

The paranoid response to this would be to kill off all fair use
immediately, and/or pull down all foreign colos (France, Netherlands,
South Korea).

The more reasonable response is that this issue needs to get settled
out in international law, and that we should keep donig what we're
doing until that happens.  We are the least likely target for someone
seeking to clarify that law via lawsuit... WMF has no money to speak
of, in traditional terms, and its "intellectual property" is all GFDL
over which ownership is sort of a nebulous hold.

It's perfectly reasonable to assert that what we're doing is the right
thing to do, from an IP rights standpoint, for all concerned, and that
it's likely that the global regime that works out will allow what
we're doing.

If we were being super-duper-paranoid, we'd have to require not just a
GFDL disclaimer on each page, but formal verified identification of
each person making contributions and their right to contribute that
content.  Even in the US, there are employers that assert that any
work "during working hours" is work for hire owned by the company,
even discussions on bulletin boards or Wikipedia edits.  Theoretically
a large fraction of total edits might be of questionable original
copyright status (if editor X says it's GFDL released, but his
workplace has a legal ownership restriction, then editor X may not
legally be in a position to release the work under the GFDL...).  This
hasn't been an issue in open content, but has been litigated in
various open source software related lawsuits.

Our working assumption there is "so what?", and that nobody's going to
come after the foundation for any of the IP involved, again because
there's no money in it and the horrible publicity which would ensue.

The same approach to Fair Use is called for.


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