[Wikipedia-l] Re: Fair use

[Toby Bartels]

[Replies should go only to <wikipedia-l>.]

Axel Boldt wrote in part:

>Erik Moeller wrote:

>>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. It's a technical detail
>that this combining is done by the browser rather than by the server -
>had we used PDF rather than HTML as our distribution medium, then the
>combining would take place on the server.

I've decided that this is not at all a technical detail.
It's part of the point of both our design and HTML's design
that the same image can be dynamically combined
with several different pieces of text.
Indeed, if we used PDF and had to combine things on our server,
*then* we might have an argument that this was merely a technical detail,
in an attempt to wriggle out of the GFDL's restrictions.
But with HTML, the technology is following the authors' intent precisely.

>>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.

Was it?

>>But don't kid yourself
>>into believing that nobody would ever consider quotes infringing.
>>Treating fair use of quotes and images entirely differently is
>>hypocritical and wrong.

>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.

This, I think, is an important point.
It came up long before in discussion of album covers.
It seems doubtful that our usage of these images
is truly "fair use" in the first place
(a separate issue from whether it violates the GFDL).
After all, the portion of *our* work that it constitutes is irrelevant
(and that's still 100%, since the image is the entire work for us too);
it's the portion of *their* work, and that's obviously 100%.

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

Yes, this also affects "fair use" law in the US.

>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, and in addition may have commercial interests
>which weakens their fair use defense considerably. In effect our fair
>use images shut out large classes of potential users of the
>encyclopedia.

It shuts out hardly any users, relatively speaking,
since it doesn't shut out any readers or writers.
What it shuts out is forkers, and others that would reproduce Wikipedia.
This is why it's important that we not claim that all image files
are covered under the GFDL, since many are no such thing.
IOW, it's the separation of the free images from the proprietary ones
that we need to be working on.


-- Toby