[Wikipedia-l] Re: [Wikitech-l] Re: Fair use

[Erik Moeller]

Axel-
>> The wiki-author doesn't add a picture, he adds a reference to a
>> picture.

> ....with the intent and expectation that the image and the text be
> combined into a whole by the user's browser.

What matters in law is the text of the FDL, because that's what we're  
dealing with. The FDL states that aggregation with "separate and  
independent" works is acceptable. The wiki-author creates a combined work  
of the previous work and the image reference -- with the expectation that  
they will be *aggregated* on *some* users' systems. Texts and images are  
separate works, stored separately, sometimes transferred together,  
sometimes not. They do not constitute a single, individual work only  
because some browsers display them together. This case is explicitly  
treated in the FDL. Do you accept that there is a distinction between  
aggregation and combination? Then where does combination end and  
aggregation begin?

The classical example for aggregation is a CD-ROM of several works. But  
just like a Wikipedia text with an image, the individual works are almost  
certainly tied together via references and identifiers. Would a CD-ROM  
that displays dynamically copyrighted, keyword-associated pictures when an  
article is shown infringe the FDL? Hardly.

>> Many copyright holders see things differently. Author Dan van der
>> Vat, for example, was asked to pay 25 British pounds for quoting two
>> sentences from
>> Churchill's History of the Second World War in his book "The Atlantic
>> Campaign". Sure: The legality is questionable.

> In other words: this would be laughed out of court.

Maybe so, but would Wikipedia go to court?

> It is neither, since short textual quotes are quite different from
> images in at least two respects relevant to fair use.

> 1) Quotes are typically a tiny fraction of the whole work, while images
> are typically 100% of the whole work.

Even when they are "combined" with Wikipedia articles? ;-) At least now  
you are interpreting the term "work" reasonably. The next step is to do so  
not only when it suits your argument ..

> 2) There is no functioning market for the rights in short quotes, but
> there is a functioning market for the rights in images.

Mostly true, and we should be very careful in dealing with images that are  
part of this market. This is the essence of a reasonable fair use doctrine  
for Wikipedia: Try to figure out if someone may be interested in stopping  
distribution of picture X, and if so, do not include it (possibly with  
some rare exceptions of high political/historical significance).

> Now, I don't think Wikipedia is at any risk whatsoever: if somebody
> complains about an image, we simply take it down. We don't have money,
> so we won't get sued. The downstream users of our materials however may
> not share these luxuries,

That's why we will provide the flags in the image table.

> and in addition may have commercial interests
> which weakens their fair use defense considerably.

People who want to make money with Wikipedia can be expected to do some  
manual work.

> In effect our fair
> use images shut out large classes of potential users of the
> encyclopedia.

So does the FDL. But we can make fair use optional.

Regards,

Erik