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

[Jimmy Wales]

(This policy stuff should really be over on wikipedia-l, not here,
so I am cc:'ing).

Toby Bartels wrote:
> 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).

It doesn't seem doubtful to me.  See Kelley v. ArribaSoft on
thumbnails:
http://biotech.law.lsu.edu/cases/IP/copyright/kelly_v_arriba_soft.htm

And also: "On the other hand, in Nunez v. Caribbean International News
Corp.,*fn22 the First Circuit found that copying a photograph that was
intended to be used in a modeling portfolio and using it instead in a
news article was a transformative use."

It's a very complicated issue, and although I've spent many hours
reading court cases, I still can't say with any certainty on lots of
questions.

But the album cover example seems pretty squarely fair use.

> 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.

This I agree with completely.

Also, *where possible*, and I think this is more cases than people
commonly realize, we should be replacing fair use images with pure GNU
FDL images.

--Jimbo