[Wikipedia-l] Re: What would Richard Stallman say?

[Michael Snow]

Daniel Mayer wrote:

> Michael Snow wrote
>
>>Totally wrong. The entire basis for fair use is Section 107 
>>of the Copyright Act. Fair use has no existence outside 
>>the concept of copyright. It is a defense that may be 
>>claimed if the user is accused of copyright infringement. 
>>    
>>
>
>I was talking about the *use* of fair use materials. It can therefore be used
>more freely - the generic definition, not legal one, of 'public domain'
>
It seems that you're talking about fair use more as an abstract idea. I 
have no problem with that, it was just difficult to recognize when the 
terms being used also have well-established legal significance, and much 
of the discussion has revolved around legal ramifications. My criticism 
was primarily out of concern that people might read your statement as 
reflecting the actual state of the law, especially coming from such a 
widely respected source. If considered in those terms, I felt it was 
dangerously misleading.

> (Alex
>and I got into a fight over this very issue).
>
I noticed that.

> Fair use let's people use small
>parts of content owned by others in their own works. The copyright on the
>larger work does not affect the copyright of the fair use selection. Therefore
>the fair use work exists outside the framework of whatever copyright terms the
>larger work is under. Is that clear? I think we failed to communicate on that
>point. 
>
It does make it more comprehensible to me. If I understand correctly, 
you're talking about whether Wikipedia articles have their own 
copyright, even if they incorporate other copyrighted materials under 
fair use. They do, and if Alex was suggesting that they don't, I 
consider that a purely theoretical argument with no practical significance.

My point is that Wikipedia's copyright, when it incorporates fair use 
materials, is limited to uses that qualify as fair under copyright law. 
This does not affect our ability to protect the copyright in Wikipedia 
content. However, it does severely limit our ability to license other 
people to use that content. When we use material under fair use, the 
GFDL does nothing to force downstream users to stick to the same use. In 
fact, the GFDL clearly allows them to make many other uses of the 
material, quite a few of which are highly unlikely to qualify as fair 
uses. Ultimately, the GFDL and fair use are incompatible.

I hope that explains where I'm coming from. We probably have been 
talking past each other to some extent, and I apologize for any 
miscommunication.

--Michael Snow
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