[Foundation-l] Fair Use (again)

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[Foundation-l] Fair Use (again)

Robert S. Horning
I've somehow found myself embroiled in the middle of a fair-use fight on
en.wikipedia, but an interesting viewpoint has expressed itself that I'm
curious with the "powers that be" and other experienced Wikimedia users
might find a bit interesting, at least in terms of where a significant
faction of Wikipedia users want to go.

The philosophy is essentially that fair use images are permitted on
Wikipedia, even if you are not going to be legally permitted to use them
if you copy them and try to re-publish the Wikipedia article.  I guess
this same philosophy also applies to the whole issue of NC images and
their inclusion in Wikimedia projects, but in this case the issue is
mainly centered on fair use applications of image content.

In reading through the Wikipedia Fair Use guideline talk page
(http://en.wikipedia.org/wiki/Wikipedia_talk%3AFair_use), I noticed a
recurring theme to justify many fair use images based around two
significant points of the fair-use doctrine as described in USC 92
section 107:

* Educational fair use  - Wikipedia is part of an "educational
institution" and the images are used as a form of instruction.
* Non-commercial entity - Because the WMF is a 503 (c) 3 non-profit
organization, and because all of the editor/contributors to Wikipedia
are unpaid volunteers, Wikipedia can claim non-commercial usage of fair
use content.

My counter argument is that neither of these justifications are valid
for inclusion into Wikipedia.  The educational exception is a major
stretch and I just don't see how it really applies in the case of
Wikipedia, particularly with some common-law cases that have
significantly reduced the scope of educational fair use.  In the case of
the non-commercial entity, I would argue that the GFDL is the trump card
here, as reproducing Wikipedia (and almost all Wikimedia) content must
be done under the terms of the GFDL, which explictly permits commercial
reproduction.

The response to this is that it doesn't matter if the GFDL applies.
 They just want to include fair use images, even if the GFDL doesn't
permit their reproduction.  This is essentially a "buyer beware"
attitudue where you, as the end-user, are required to explicitly go
through the licensing terms of all images you download together with an
article and remove those images if you decide to pass the article on to
a 3rd party.  The inclusion of an image on Wikipedia has no connection
to the GFDL, but only if it is legal (even if barely) for it to be
displayed on a website run by the WMF.

I had a hard time understanding this philosohpy, but a fairly vocal
group insists that this is where fair use policy on Wikipedia ought to
be going.

I should note that I got into this whole mess because I was involved
with a group that was trying to write a Wikibook about M.C. Escher, and
I tried to point out that they couldn't reproduce the Escher artwork
unless they somehow were able to obtain a license that could be used
under the GFDL.  The response was that the images were being used on
Wikipedia, so why not Wikibooks?  The Escher reproductions are claiming
fair use, but I think it has gone way too far on Wikipedia, as I believe
these to be merely a copyright violation.

--
Robert Scott Horning



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Re: [Foundation-l] Fair Use (again)

jmerkey-3

All it takes is one lawsuit from someone who is upset at the images
being used, and the money from
the last fund drive could get used up in legal fees pretty durn fast. If
someone object to images
being used, then TAKE THEM OFF THE SITE, Fair use argments are not. I
recall my interactions
on en.wikipedia with people using copyrighted materials and some of the
debates I had there.

Bottom line, these anonymus editors are not the people who will get
nailed. The foundation will
be the ones who get served and Brad will have to hire a law firm to
defend the Foundation. It's
pretty simple -- if someone who owns th images does not want them used,
then do not use them.

There are a lot more torts than just copyright infringement they could
pull out of the bag and use. They could claim
unfari competition, tortious interference, and a whole host of other
torts they may win with. It's cheaper, easier,
and honorable to simply take down the images and tell the offended party
it is being done as a courtesty. This makes
it appear the foundation is acting in good faith.

Jeff


Robert Scott Horning wrote:

>I've somehow found myself embroiled in the middle of a fair-use fight on
>en.wikipedia, but an interesting viewpoint has expressed itself that I'm
>curious with the "powers that be" and other experienced Wikimedia users
>might find a bit interesting, at least in terms of where a significant
>faction of Wikipedia users want to go.
>
>The philosophy is essentially that fair use images are permitted on
>Wikipedia, even if you are not going to be legally permitted to use them
>if you copy them and try to re-publish the Wikipedia article.  I guess
>this same philosophy also applies to the whole issue of NC images and
>their inclusion in Wikimedia projects, but in this case the issue is
>mainly centered on fair use applications of image content.
>
>In reading through the Wikipedia Fair Use guideline talk page
>(http://en.wikipedia.org/wiki/Wikipedia_talk%3AFair_use), I noticed a
>recurring theme to justify many fair use images based around two
>significant points of the fair-use doctrine as described in USC 92
>section 107:
>
>* Educational fair use  - Wikipedia is part of an "educational
>institution" and the images are used as a form of instruction.
>* Non-commercial entity - Because the WMF is a 503 (c) 3 non-profit
>organization, and because all of the editor/contributors to Wikipedia
>are unpaid volunteers, Wikipedia can claim non-commercial usage of fair
>use content.
>
>My counter argument is that neither of these justifications are valid
>for inclusion into Wikipedia.  The educational exception is a major
>stretch and I just don't see how it really applies in the case of
>Wikipedia, particularly with some common-law cases that have
>significantly reduced the scope of educational fair use.  In the case of
>the non-commercial entity, I would argue that the GFDL is the trump card
>here, as reproducing Wikipedia (and almost all Wikimedia) content must
>be done under the terms of the GFDL, which explictly permits commercial
>reproduction.
>
>The response to this is that it doesn't matter if the GFDL applies.
> They just want to include fair use images, even if the GFDL doesn't
>permit their reproduction.  This is essentially a "buyer beware"
>attitudue where you, as the end-user, are required to explicitly go
>through the licensing terms of all images you download together with an
>article and remove those images if you decide to pass the article on to
>a 3rd party.  The inclusion of an image on Wikipedia has no connection
>to the GFDL, but only if it is legal (even if barely) for it to be
>displayed on a website run by the WMF.
>
>I had a hard time understanding this philosohpy, but a fairly vocal
>group insists that this is where fair use policy on Wikipedia ought to
>be going.
>
>I should note that I got into this whole mess because I was involved
>with a group that was trying to write a Wikibook about M.C. Escher, and
>I tried to point out that they couldn't reproduce the Escher artwork
>unless they somehow were able to obtain a license that could be used
>under the GFDL.  The response was that the images were being used on
>Wikipedia, so why not Wikibooks?  The Escher reproductions are claiming
>fair use, but I think it has gone way too far on Wikipedia, as I believe
>these to be merely a copyright violation.
>
>  
>


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Re: [Foundation-l] Fair Use (again)

Andre Engels
2007/1/28, Jeffrey V. Merkey <[hidden email]>:

> All it takes is one lawsuit from someone who is upset at the images
> being used, and the money from
> the last fund drive could get used up in legal fees pretty durn fast. If
> someone object to images
> being used, then TAKE THEM OFF THE SITE, Fair use argments are not. I
> recall my interactions
> on en.wikipedia with people using copyrighted materials and some of the
> debates I had there.
>
> Bottom line, these anonymus editors are not the people who will get
> nailed. The foundation will
> be the ones who get served and Brad will have to hire a law firm to
> defend the Foundation. It's
> pretty simple -- if someone who owns th images does not want them used,
> then do not use them.
>

But what if there is no such request? Should we keep everything on the site
until we get a request to take it down? Or should we only put things on that
are as free as our own texts? Or something somewhere in between? That's what
the issue is about.

--
Andre Engels, [hidden email]
ICQ: 6260644  --  Skype: a_engels
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Re: [Foundation-l] Fair Use (again)

George William Herbert
In reply to this post by Robert S. Horning
On 1/28/07, Robert Scott Horning <[hidden email]> wrote:

> I've somehow found myself embroiled in the middle of a fair-use fight on
> en.wikipedia, but an interesting viewpoint has expressed itself that I'm
> curious with the "powers that be" and other experienced Wikimedia users
> might find a bit interesting, at least in terms of where a significant
> faction of Wikipedia users want to go.
>
> The philosophy is essentially that fair use images are permitted on
> Wikipedia, even if you are not going to be legally permitted to use them
> if you copy them and try to re-publish the Wikipedia article.  I guess
> this same philosophy also applies to the whole issue of NC images and
> their inclusion in Wikimedia projects, but in this case the issue is
> mainly centered on fair use applications of image content.
>
> In reading through the Wikipedia Fair Use guideline talk page
> (http://en.wikipedia.org/wiki/Wikipedia_talk%3AFair_use), I noticed a
> recurring theme to justify many fair use images based around two
> significant points of the fair-use doctrine as described in USC 92
> section 107:
>
> * Educational fair use  - Wikipedia is part of an "educational
> institution" and the images are used as a form of instruction.
> * Non-commercial entity - Because the WMF is a 503 (c) 3 non-profit
> organization, and because all of the editor/contributors to Wikipedia
> are unpaid volunteers, Wikipedia can claim non-commercial usage of fair
> use content.
>
> My counter argument is that neither of these justifications are valid
> for inclusion into Wikipedia.  The educational exception is a major
> stretch and I just don't see how it really applies in the case of
> Wikipedia, particularly with some common-law cases that have
> significantly reduced the scope of educational fair use.  In the case of
> the non-commercial entity, I would argue that the GFDL is the trump card
> here, as reproducing Wikipedia (and almost all Wikimedia) content must
> be done under the terms of the GFDL, which explictly permits commercial
> reproduction.
>
> The response to this is that it doesn't matter if the GFDL applies.
>  They just want to include fair use images, even if the GFDL doesn't
> permit their reproduction.  This is essentially a "buyer beware"
> attitudue where you, as the end-user, are required to explicitly go
> through the licensing terms of all images you download together with an
> article and remove those images if you decide to pass the article on to
> a 3rd party.  The inclusion of an image on Wikipedia has no connection
> to the GFDL, but only if it is legal (even if barely) for it to be
> displayed on a website run by the WMF.
>
> I had a hard time understanding this philosohpy, but a fairly vocal
> group insists that this is where fair use policy on Wikipedia ought to
> be going.
>
> I should note that I got into this whole mess because I was involved
> with a group that was trying to write a Wikibook about M.C. Escher, and
> I tried to point out that they couldn't reproduce the Escher artwork
> unless they somehow were able to obtain a license that could be used
> under the GFDL.  The response was that the images were being used on
> Wikipedia, so why not Wikibooks?  The Escher reproductions are claiming
> fair use, but I think it has gone way too far on Wikipedia, as I believe
> these to be merely a copyright violation.

As the US code reads, fair use includes:
"criticism, comment, news reporting, teaching (including multiple
copies for classroom use), scholarship, or research"

It then goes on to describe the four factors involved in determining
if a use was fair under those theories:
"       1. the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit educational
purposes;
       2. the nature of the copyrighted work;
       3. the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
       4. the effect of the use upon the potential market for or value
of the copyrighted work."

Wikipedia can be argued to fall under aspects of news reporting,
scholarship, teaching, comment, and criticism, depending on the
details of the particular article and subject.

The US code doesn't say "educational institution".  It says "for
teaching".  It doesn't requires that a fair use meet all four factors,
just that those factors be used in the determination.

Regarding the distribution of materials beyond Wikipedia, while it's
true that we fall under the "nonprofit educational purposes" clause of
factor 1 above, most potential further-distributed users would find
protection under 2-4 and the scholarship, news reporting, etc.
fundamental fair users.

In particular, factor 2 "The nature of the copyrighted work" rather
clearly implies that promotional materials released by organizations
are generally expected under law to be reproduced, which is one of the
major arguments on en.wp right now.


--
-george william herbert
[hidden email]

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Re: [Foundation-l] Fair Use (again)

The Cunctator
In reply to this post by jmerkey-3
On 1/28/07, Jeffrey V. Merkey <[hidden email]> wrote:

>
> All it takes is one lawsuit from someone who is upset at the images
> being used, and the money from
> the last fund drive could get used up in legal fees pretty durn fast. If
> someone object to images
> being used, then TAKE THEM OFF THE SITE, Fair use argments are not. I
> recall my interactions
> on en.wikipedia with people using copyrighted materials and some of the
> debates I had there.
>
> Bottom line, these anonymus editors are not the people who will get
> nailed. The foundation will
> be the ones who get served and Brad will have to hire a law firm to
> defend the Foundation. It's
> pretty simple -- if someone who owns th images does not want them used,
> then do not use them.
>
> There are a lot more torts than just copyright infringement they could
> pull out of the bag and use. They could claim
> unfari competition, tortious interference, and a whole host of other
> torts they may win with. It's cheaper, easier,
> and honorable to simply take down the images and tell the offended party
> it is being done as a courtesty. This makes
> it appear the foundation is acting in good faith.

This argument is pure copyright paranoia. What I mean by that is that
Jeffrey is asserting as fact a hypothetical scenario ("The foundation
will be the ones who get served and Brad will have to hire a law firm
to defend the Foundation.") That's possible, but certainly not
guaranteed.

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Re: [Foundation-l] Fair Use (again)

Effe iets anders
In reply to this post by jmerkey-3
I think all it takes is one person writing the foundation that they are
breaching their copyright, as they do not follow the GFDL-license, under
which the person has given his/her texts free? And if Wikipedia is not
following GFDL, GFDL doesnt apply to those articles either i guess. In
thery, IANAL, it might even be that the foundation has to remove all that
persons contributions? :S

Eia

2007/1/28, Jeffrey V. Merkey <[hidden email]>:

>
>
> All it takes is one lawsuit from someone who is upset at the images
> being used, and the money from
> the last fund drive could get used up in legal fees pretty durn fast. If
> someone object to images
> being used, then TAKE THEM OFF THE SITE, Fair use argments are not. I
> recall my interactions
> on en.wikipedia with people using copyrighted materials and some of the
> debates I had there.
>
> Bottom line, these anonymus editors are not the people who will get
> nailed. The foundation will
> be the ones who get served and Brad will have to hire a law firm to
> defend the Foundation. It's
> pretty simple -- if someone who owns th images does not want them used,
> then do not use them.
>
> There are a lot more torts than just copyright infringement they could
> pull out of the bag and use. They could claim
> unfari competition, tortious interference, and a whole host of other
> torts they may win with. It's cheaper, easier,
> and honorable to simply take down the images and tell the offended party
> it is being done as a courtesty. This makes
> it appear the foundation is acting in good faith.
>
> Jeff
>
>
> Robert Scott Horning wrote:
>
> >I've somehow found myself embroiled in the middle of a fair-use fight on
> >en.wikipedia, but an interesting viewpoint has expressed itself that I'm
> >curious with the "powers that be" and other experienced Wikimedia users
> >might find a bit interesting, at least in terms of where a significant
> >faction of Wikipedia users want to go.
> >
> >The philosophy is essentially that fair use images are permitted on
> >Wikipedia, even if you are not going to be legally permitted to use them
> >if you copy them and try to re-publish the Wikipedia article.  I guess
> >this same philosophy also applies to the whole issue of NC images and
> >their inclusion in Wikimedia projects, but in this case the issue is
> >mainly centered on fair use applications of image content.
> >
> >In reading through the Wikipedia Fair Use guideline talk page
> >(http://en.wikipedia.org/wiki/Wikipedia_talk%3AFair_use), I noticed a
> >recurring theme to justify many fair use images based around two
> >significant points of the fair-use doctrine as described in USC 92
> >section 107:
> >
> >* Educational fair use  - Wikipedia is part of an "educational
> >institution" and the images are used as a form of instruction.
> >* Non-commercial entity - Because the WMF is a 503 (c) 3 non-profit
> >organization, and because all of the editor/contributors to Wikipedia
> >are unpaid volunteers, Wikipedia can claim non-commercial usage of fair
> >use content.
> >
> >My counter argument is that neither of these justifications are valid
> >for inclusion into Wikipedia.  The educational exception is a major
> >stretch and I just don't see how it really applies in the case of
> >Wikipedia, particularly with some common-law cases that have
> >significantly reduced the scope of educational fair use.  In the case of
> >the non-commercial entity, I would argue that the GFDL is the trump card
> >here, as reproducing Wikipedia (and almost all Wikimedia) content must
> >be done under the terms of the GFDL, which explictly permits commercial
> >reproduction.
> >
> >The response to this is that it doesn't matter if the GFDL applies.
> > They just want to include fair use images, even if the GFDL doesn't
> >permit their reproduction.  This is essentially a "buyer beware"
> >attitudue where you, as the end-user, are required to explicitly go
> >through the licensing terms of all images you download together with an
> >article and remove those images if you decide to pass the article on to
> >a 3rd party.  The inclusion of an image on Wikipedia has no connection
> >to the GFDL, but only if it is legal (even if barely) for it to be
> >displayed on a website run by the WMF.
> >
> >I had a hard time understanding this philosohpy, but a fairly vocal
> >group insists that this is where fair use policy on Wikipedia ought to
> >be going.
> >
> >I should note that I got into this whole mess because I was involved
> >with a group that was trying to write a Wikibook about M.C. Escher, and
> >I tried to point out that they couldn't reproduce the Escher artwork
> >unless they somehow were able to obtain a license that could be used
> >under the GFDL.  The response was that the images were being used on
> >Wikipedia, so why not Wikibooks?  The Escher reproductions are claiming
> >fair use, but I think it has gone way too far on Wikipedia, as I believe
> >these to be merely a copyright violation.
> >
> >
> >
>
>
> _______________________________________________
> foundation-l mailing list
> [hidden email]
> http://lists.wikimedia.org/mailman/listinfo/foundation-l
>
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Re: [Foundation-l] Fair Use (again)

Bryan Tong Minh
In response to effe iets anders, I think this clause of the GFDL applies:

A compilation of the Document or its derivatives with other separate
and independent documents or works, in or on a volume of a storage or
distribution medium, is called an "aggregate" if the copyright
resulting from the compilation is not used to limit the legal rights
of the compilation's users beyond what the individual works permit.
When the Document is included in an aggregate, this License does not
apply to the other works in the aggregate which are not themselves
derivative works of the Document.

It is section 7, the aggregration section.

Bryan

On 1/28/07, effe iets anders <[hidden email]> wrote:

> I think all it takes is one person writing the foundation that they are
> breaching their copyright, as they do not follow the GFDL-license, under
> which the person has given his/her texts free? And if Wikipedia is not
> following GFDL, GFDL doesnt apply to those articles either i guess. In
> thery, IANAL, it might even be that the foundation has to remove all that
> persons contributions? :S
>
> Eia
>
> 2007/1/28, Jeffrey V. Merkey <[hidden email]>:
> >
> >
> > All it takes is one lawsuit from someone who is upset at the images
> > being used, and the money from
> > the last fund drive could get used up in legal fees pretty durn fast. If
> > someone object to images
> > being used, then TAKE THEM OFF THE SITE, Fair use argments are not. I
> > recall my interactions
> > on en.wikipedia with people using copyrighted materials and some of the
> > debates I had there.
> >
> > Bottom line, these anonymus editors are not the people who will get
> > nailed. The foundation will
> > be the ones who get served and Brad will have to hire a law firm to
> > defend the Foundation. It's
> > pretty simple -- if someone who owns th images does not want them used,
> > then do not use them.
> >
> > There are a lot more torts than just copyright infringement they could
> > pull out of the bag and use. They could claim
> > unfari competition, tortious interference, and a whole host of other
> > torts they may win with. It's cheaper, easier,
> > and honorable to simply take down the images and tell the offended party
> > it is being done as a courtesty. This makes
> > it appear the foundation is acting in good faith.
> >
> > Jeff
> >
> >
> > Robert Scott Horning wrote:
> >
> > >I've somehow found myself embroiled in the middle of a fair-use fight on
> > >en.wikipedia, but an interesting viewpoint has expressed itself that I'm
> > >curious with the "powers that be" and other experienced Wikimedia users
> > >might find a bit interesting, at least in terms of where a significant
> > >faction of Wikipedia users want to go.
> > >
> > >The philosophy is essentially that fair use images are permitted on
> > >Wikipedia, even if you are not going to be legally permitted to use them
> > >if you copy them and try to re-publish the Wikipedia article.  I guess
> > >this same philosophy also applies to the whole issue of NC images and
> > >their inclusion in Wikimedia projects, but in this case the issue is
> > >mainly centered on fair use applications of image content.
> > >
> > >In reading through the Wikipedia Fair Use guideline talk page
> > >(http://en.wikipedia.org/wiki/Wikipedia_talk%3AFair_use), I noticed a
> > >recurring theme to justify many fair use images based around two
> > >significant points of the fair-use doctrine as described in USC 92
> > >section 107:
> > >
> > >* Educational fair use  - Wikipedia is part of an "educational
> > >institution" and the images are used as a form of instruction.
> > >* Non-commercial entity - Because the WMF is a 503 (c) 3 non-profit
> > >organization, and because all of the editor/contributors to Wikipedia
> > >are unpaid volunteers, Wikipedia can claim non-commercial usage of fair
> > >use content.
> > >
> > >My counter argument is that neither of these justifications are valid
> > >for inclusion into Wikipedia.  The educational exception is a major
> > >stretch and I just don't see how it really applies in the case of
> > >Wikipedia, particularly with some common-law cases that have
> > >significantly reduced the scope of educational fair use.  In the case of
> > >the non-commercial entity, I would argue that the GFDL is the trump card
> > >here, as reproducing Wikipedia (and almost all Wikimedia) content must
> > >be done under the terms of the GFDL, which explictly permits commercial
> > >reproduction.
> > >
> > >The response to this is that it doesn't matter if the GFDL applies.
> > > They just want to include fair use images, even if the GFDL doesn't
> > >permit their reproduction.  This is essentially a "buyer beware"
> > >attitudue where you, as the end-user, are required to explicitly go
> > >through the licensing terms of all images you download together with an
> > >article and remove those images if you decide to pass the article on to
> > >a 3rd party.  The inclusion of an image on Wikipedia has no connection
> > >to the GFDL, but only if it is legal (even if barely) for it to be
> > >displayed on a website run by the WMF.
> > >
> > >I had a hard time understanding this philosohpy, but a fairly vocal
> > >group insists that this is where fair use policy on Wikipedia ought to
> > >be going.
> > >
> > >I should note that I got into this whole mess because I was involved
> > >with a group that was trying to write a Wikibook about M.C. Escher, and
> > >I tried to point out that they couldn't reproduce the Escher artwork
> > >unless they somehow were able to obtain a license that could be used
> > >under the GFDL.  The response was that the images were being used on
> > >Wikipedia, so why not Wikibooks?  The Escher reproductions are claiming
> > >fair use, but I think it has gone way too far on Wikipedia, as I believe
> > >these to be merely a copyright violation.
> > >
> > >
> > >
> >
> >
> > _______________________________________________
> > foundation-l mailing list
> > [hidden email]
> > http://lists.wikimedia.org/mailman/listinfo/foundation-l
> >
> _______________________________________________
> foundation-l mailing list
> [hidden email]
> http://lists.wikimedia.org/mailman/listinfo/foundation-l
>

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Re: [Foundation-l] Fair Use (again)

Robert S. Horning
In reply to this post by jmerkey-3
Jeffrey V. Merkey wrote:

>All it takes is one lawsuit from someone who is upset at the images
>being used, and the money from
>the last fund drive could get used up in legal fees pretty durn fast. If
>someone object to images
>being used, then TAKE THEM OFF THE SITE, Fair use argments are not. I
>recall my interactions
>on en.wikipedia with people using copyrighted materials and some of the
>debates I had there.
>
>Bottom line, these anonymus editors are not the people who will get
>nailed. The foundation will
>be the ones who get served and Brad will have to hire a law firm to
>defend the Foundation. It's
>pretty simple -- if someone who owns th images does not want them used,
>then do not use them.
>
>There are a lot more torts than just copyright infringement they could
>pull out of the bag and use. They could claim
>unfari competition, tortious interference, and a whole host of other
>torts they may win with. It's cheaper, easier,
>and honorable to simply take down the images and tell the offended party
>it is being done as a courtesty. This makes
>it appear the foundation is acting in good faith.
>
>Jeff
>  
>

I am being told that the one and only way that these images are going to
possibly be removed from Wikipedia is through a WP:OFFICE action.  I
think that is one of the most ridiculous sentiments ever made.  For
example, see the "disclaimer" that was thrown onto this image:

http://en.wikipedia.org/wiki/Image%3AHand_with_Reflecting_Sphere.jpg

It basically says that if M.C. Escher objects (BTW, he is dead.... so I
guess that is his estate here), then he should contact the "Designated
agent" of Wikipedia (aka Brad) in order to remove this image.

IMHO, this disclaimer by itself is almost proof by itself that this
particular image is a copyright violation, and I would argue that the
other 40,000 images also in [[en:w:Category:Fair use images of art]]
also are very likly to be copyright violations.  That is not a trivial
number of images to be removing.

I don't know directly the liability to either Wikipedia as a project or
the WMF as the "sponsoring institution", but I would strongly suggest
that fair use has gone way too far here.

This is also (at least to me) a very new philosophy that Wikimedia
project might be hosting content that would not necessarily be
reproduceable under the GFDL as the lowest common denominator.  That
essentially this is content that dead-ends just on one project, such as
Wikipedia, and can't be used anywhere else.  I'm not talking about WMF
logos (which is a totally different issue), but for general content that
is project related.  And the group that espouses this viewpoint is
willing to wheel war over this issue as well, so simply deleting the
content is not going to be sufficient here.  They are already making
changing the Wikipedia fair use policy to permit this sort of
philosophy, and I'm just a rather lowly ordinary user with no major
status on Wikipedia.

That the foundation may have a legal liability issue here is why I'm
raising this on a foundation level at all, and because I believe that
this is an issue that will affect all Wikimedia projects in the not so
distant future.  With the current philosophies regarding fair use on
Wikipedia, I am trying very hard to find what is considered an
infringing image that is a copyright violation.  I can't think of a
single one.  Every image I could possibly imagine has some sort of
application under current fair use guidelines to be included in at least
some sort of Wikipedia article, and that once there, is often and
frequently copied to yet other articles where the usage is much more
dubious.  The 400 x 600 pixel image I mentioned above is considered "low
resolution" too.

--
Robert Scott Horning




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Re: [Foundation-l] Fair Use (again)

Gerard Meijssen-3
In reply to this post by The Cunctator
The Cunctator schreef:

> On 1/28/07, Jeffrey V. Merkey <[hidden email]> wrote:
>  
>> All it takes is one lawsuit from someone who is upset at the images
>> being used, and the money from
>> the last fund drive could get used up in legal fees pretty durn fast. If
>> someone object to images
>> being used, then TAKE THEM OFF THE SITE, Fair use argments are not. I
>> recall my interactions
>> on en.wikipedia with people using copyrighted materials and some of the
>> debates I had there.
>>
>> Bottom line, these anonymus editors are not the people who will get
>> nailed. The foundation will
>> be the ones who get served and Brad will have to hire a law firm to
>> defend the Foundation. It's
>> pretty simple -- if someone who owns th images does not want them used,
>> then do not use them.
>>
>> There are a lot more torts than just copyright infringement they could
>> pull out of the bag and use. They could claim
>> unfari competition, tortious interference, and a whole host of other
>> torts they may win with. It's cheaper, easier,
>> and honorable to simply take down the images and tell the offended party
>> it is being done as a courtesty. This makes
>> it appear the foundation is acting in good faith.
>>    
>
> This argument is pure copyright paranoia. What I mean by that is that
> Jeffrey is asserting as fact a hypothetical scenario ("The foundation
> will be the ones who get served and Brad will have to hire a law firm
> to defend the Foundation.") That's possible, but certainly not
> guaranteed.
Hoi,
What Jeffrey says is absolutely true. The way you would apparently have
it that you only believe it when there is a day in court, having lost
all our marbles losing our money as well. People donate their money to
have Wikipedia serve content to the world, not to play IANAAL brinkmanship.
Thanks,
    GerardM

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Re: [Foundation-l] Fair Use (again)

Robert S. Horning
In reply to this post by Effe iets anders
effe iets anders wrote:

>I think all it takes is one person writing the foundation that they are
>breaching their copyright, as they do not follow the GFDL-license, under
>which the person has given his/her texts free? And if Wikipedia is not
>following GFDL, GFDL doesnt apply to those articles either i guess. In
>thery, IANAL, it might even be that the foundation has to remove all that
>persons contributions? :S
>
>Eia
>  
>
I've actually thought about doing a sort of mass-mailing to several
prominent artists featured on Wikipedia, saying in effect "do you know
that your art work is being used here without permission" and giving an
address of the WMF to get it removed.

I think that might get a reaction, but it may not be in the best
interest of the WMF to go that far.  It does illustrate at least an
avenue to force this issue.

For myself, I would rather that the concept of fair use be legitmately
reviewed, and that applications of fair use that might be objectionable
would be removed well before there is any problem that might surface
instead.  Unfortunately this is something that may have to come from
"the top" on a WMF level and be forced down onto the project.  The only
ones who are interested right now in setting fair use policy are those
who want to see it extended even further rather than those who want to
scale it back.

--
Robert Scott Horning




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Re: [Foundation-l] Fair Use (again)

Effe iets anders
I did not want to suggest we should do this, I just want to point out that
we have quite a risk when we really want fair use in the long run. Both from
the side of the authors of the picture as from the authors of the text of
wikipedia.

Eia

2007/1/28, Robert Scott Horning <[hidden email]>:

>
> effe iets anders wrote:
>
> >I think all it takes is one person writing the foundation that they are
> >breaching their copyright, as they do not follow the GFDL-license, under
> >which the person has given his/her texts free? And if Wikipedia is not
> >following GFDL, GFDL doesnt apply to those articles either i guess. In
> >thery, IANAL, it might even be that the foundation has to remove all that
> >persons contributions? :S
> >
> >Eia
> >
> >
> I've actually thought about doing a sort of mass-mailing to several
> prominent artists featured on Wikipedia, saying in effect "do you know
> that your art work is being used here without permission" and giving an
> address of the WMF to get it removed.
>
> I think that might get a reaction, but it may not be in the best
> interest of the WMF to go that far.  It does illustrate at least an
> avenue to force this issue.
>
> For myself, I would rather that the concept of fair use be legitmately
> reviewed, and that applications of fair use that might be objectionable
> would be removed well before there is any problem that might surface
> instead.  Unfortunately this is something that may have to come from
> "the top" on a WMF level and be forced down onto the project.  The only
> ones who are interested right now in setting fair use policy are those
> who want to see it extended even further rather than those who want to
> scale it back.
>
> --
> Robert Scott Horning
>
>
>
>
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Re: [Foundation-l] Fair Use (again)

geni
In reply to this post by Robert S. Horning
On 1/28/07, Robert Scott Horning <[hidden email]> wrote:
> I am being told that the one and only way that these images are going to
> possibly be removed from Wikipedia is through a WP:OFFICE action.  I
> think that is one of the most ridiculous sentiments ever made.  For
> example, see the "disclaimer" that was thrown onto this image:
>
> http://en.wikipedia.org/wiki/Image%3AHand_with_Reflecting_Sphere.jpg
>


Hmm yes that is rather a worry. I would argue it's inclusion in [[Hand
with Reflecting Sphere (Self-Portrait in Spherical Mirror)]] at a low
enough resolution could be legitimately argued to be fair use.


> IMHO, this disclaimer by itself is almost proof by itself that this
> particular image is a copyright violation,

It is prooof that someone doesn't know what they are doing

> and I would argue that the
> other 40,000 images also in [[en:w:Category:Fair use images of art]]
> also are very likly to be copyright violations.  That is not a trivial
> number of images to be removing.

While it is a bit messy a lot of it isn't to bad. As long as people
talk about the artwork in the article it is in it is posible to start
building a fair use case.

--
geni

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Re: [Foundation-l] Fair Use (again)

David Gerard-2
On 28/01/07, geni <[hidden email]> wrote:
> On 1/28/07, Robert Scott Horning <[hidden email]> wrote:

> > I am being told that the one and only way that these images are going to
> > possibly be removed from Wikipedia is through a WP:OFFICE action.  I
> > think that is one of the most ridiculous sentiments ever made.  For
> > example, see the "disclaimer" that was thrown onto this image:
> > http://en.wikipedia.org/wiki/Image%3AHand_with_Reflecting_Sphere.jpg

> Hmm yes that is rather a worry. I would argue it's inclusion in [[Hand
> with Reflecting Sphere (Self-Portrait in Spherical Mirror)]] at a low
> enough resolution could be legitimately argued to be fair use.


Yeah, there's a place for fair use, and that's probably where it would
be. Maybe in a general article on Escher, maybe not.

For the actual *likelihood* of a legal apocalypse for the Foundation -
my favoured example again, [[Xenu]] - the important IMO) fair-use
image are owned by the Church of Scientology, who are really quite
notable for now far they will take legal action to protect what they
see as their interests (see [[Scientology and the legal system]] - SCO
is *nothing* by comparison) but literally haven't uttered a peep about
the CoS-owned images on [[Xenu]] in two years, while CoS staff editors
participate extensively in the Scientology-related articles on
Wikipedia. Because the educational fair use *in the context of the
article* is really not reasonably contestable under US law. And nor
have they approached any mirror sites that I know of (and I'm hooked
in enough to the Scientology critic community that think I'd know).

(And the image of the word "Xenu" in L. Ron Hubbard's handwriting has
been widely distributed in the UK, and worldwide, on Roland
Rashleigh-Berry's 'Xenu leaflet' since 1997. I've handed it to CoS
staff myself. Not a peep of a legal threat over it.)

IMO, every fair use image on en:wp should have a {{fairusein}}
template and only be used in articles carrying that template with an
article and a rationale. I'm a big fan of fair use, but I also think
it's taken *way* too far in practice. And I think it would be a bad
thing for the encyclopedia for fair use to be abused to the point
where the Foundation says "no more."


> > IMHO, this disclaimer by itself is almost proof by itself that this
> > particular image is a copyright violation,

> It is prooof that someone doesn't know what they are doing


Assume good faith! But by no means let doing so stop us from winding
fair use on en:wp back to something considerably more hardarsed.


> > and I would argue that the
> > other 40,000 images also in [[en:w:Category:Fair use images of art]]
> > also are very likly to be copyright violations.  That is not a trivial
> > number of images to be removing.

> While it is a bit messy a lot of it isn't to bad. As long as people
> talk about the artwork in the article it is in it is posible to start
> building a fair use case.


I know you're pretty knowledgeable about the state of fair use images
on en:wp, so it's very reassuring that it's not *too* bad. Not
unfixably so, anyway.


- d.

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Re: [Foundation-l] Fair Use (again)

jmerkey-3
In reply to this post by Andre Engels
Andre Engels wrote:

>2007/1/28, Jeffrey V. Merkey <[hidden email]>:
>
>  
>
>>All it takes is one lawsuit from someone who is upset at the images
>>being used, and the money from
>>the last fund drive could get used up in legal fees pretty durn fast. If
>>someone object to images
>>being used, then TAKE THEM OFF THE SITE, Fair use argments are not. I
>>recall my interactions
>>on en.wikipedia with people using copyrighted materials and some of the
>>debates I had there.
>>
>>Bottom line, these anonymus editors are not the people who will get
>>nailed. The foundation will
>>be the ones who get served and Brad will have to hire a law firm to
>>defend the Foundation. It's
>>pretty simple -- if someone who owns th images does not want them used,
>>then do not use them.
>>
>>    
>>
>
>But what if there is no such request? Should we keep everything on the site
>until we get a request to take it down? Or should we only put things on that
>are as free as our own texts? Or something somewhere in between? That's what
>the issue is about.
>
>  
>
Doctrine of Esstoppel. Someone puts something up fair use and the owner
does not complain, then
should be no big deal (though the law says they have to have gotten some
sort of notice or discovered
its use before the statute of limitation time clock starts ticking).

If someone goes to the trouble of sending a notice to take it down, then
it should be addressed, apart from
what yould be obvious misuse of someone else's materials.

Jeff


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Re: [Foundation-l] Fair Use (again)

jmerkey-3
In reply to this post by The Cunctator
The Cunctator wrote:

>On 1/28/07, Jeffrey V. Merkey <[hidden email]> wrote:
>  
>
>>All it takes is one lawsuit from someone who is upset at the images
>>being used, and the money from
>>the last fund drive could get used up in legal fees pretty durn fast. If
>>someone object to images
>>being used, then TAKE THEM OFF THE SITE, Fair use argments are not. I
>>recall my interactions
>>on en.wikipedia with people using copyrighted materials and some of the
>>debates I had there.
>>
>>Bottom line, these anonymus editors are not the people who will get
>>nailed. The foundation will
>>be the ones who get served and Brad will have to hire a law firm to
>>defend the Foundation. It's
>>pretty simple -- if someone who owns th images does not want them used,
>>then do not use them.
>>
>>There are a lot more torts than just copyright infringement they could
>>pull out of the bag and use. They could claim
>>unfari competition, tortious interference, and a whole host of other
>>torts they may win with. It's cheaper, easier,
>>and honorable to simply take down the images and tell the offended party
>>it is being done as a courtesty. This makes
>>it appear the foundation is acting in good faith.
>>    
>>
>
>This argument is pure copyright paranoia. What I mean by that is that
>Jeffrey is asserting as fact a hypothetical scenario ("The foundation
>will be the ones who get served and Brad will have to hire a law firm
>to defend the Foundation.") That's possible, but certainly not
>guaranteed.
>  
>

Yeah? How many of you have actually had to stand in front of a judge
with millions of dollars of **YOUR**
money on the line. I have stood there more times than I care to mention,
and in most cases not by my own choice.
Judges will not listen to whining exusces and weak arguments, and you
don't get to argue over and over again
after they rule -- you have to pay. The real shocker is when the judge
orders you to pay
the other sides legal fees. What if they hire Coudert Brothers from new
York to defend them who charges $500.00/hour
and they rack up 350,000.00 in fees just to send a dozen letters and
file a complaint and you get ordered to pay it.

Cheaper to take down the content.

Jeff

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>
>  
>


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Re: [Foundation-l] Fair Use (again)

David Strauss-4
In reply to this post by Robert S. Horning
I think you're misinterpreting Wikipedia's fair-use justification. Fair
use is subject to a series of tests. It does not need to pass all of
them to achieve the status of fair use. It happens that a few
distinctive aspects if Wikipedia -- the ones you've noticed -- allow it
to pass the tests more easily.

This does not mean an organization needs those aspects to reuse
Wikipedia articles under fair use.

Coupled with the conservative interpretation in Wikipedia's policy of
what constitutes fair use, it's clear that Wikipedia isn't trying to
foster articles that only it can use.

Regarding the "buyer beware" issue, everything on Wikipedia is
*necessarily* buyer beware because Wikipedia is not censored. There has
never been a guarantee that the content on Wikipedia won't put
republishers in jail for political dissent, obscenity, or other reasons
specific to their countries' laws.

Robert Scott Horning wrote:

> I've somehow found myself embroiled in the middle of a fair-use fight on
> en.wikipedia, but an interesting viewpoint has expressed itself that I'm
> curious with the "powers that be" and other experienced Wikimedia users
> might find a bit interesting, at least in terms of where a significant
> faction of Wikipedia users want to go.
>
> The philosophy is essentially that fair use images are permitted on
> Wikipedia, even if you are not going to be legally permitted to use them
> if you copy them and try to re-publish the Wikipedia article.  I guess
> this same philosophy also applies to the whole issue of NC images and
> their inclusion in Wikimedia projects, but in this case the issue is
> mainly centered on fair use applications of image content.
>
> In reading through the Wikipedia Fair Use guideline talk page
> (http://en.wikipedia.org/wiki/Wikipedia_talk%3AFair_use), I noticed a
> recurring theme to justify many fair use images based around two
> significant points of the fair-use doctrine as described in USC 92
> section 107:
>
> * Educational fair use  - Wikipedia is part of an "educational
> institution" and the images are used as a form of instruction.
> * Non-commercial entity - Because the WMF is a 503 (c) 3 non-profit
> organization, and because all of the editor/contributors to Wikipedia
> are unpaid volunteers, Wikipedia can claim non-commercial usage of fair
> use content.
>
> My counter argument is that neither of these justifications are valid
> for inclusion into Wikipedia.  The educational exception is a major
> stretch and I just don't see how it really applies in the case of
> Wikipedia, particularly with some common-law cases that have
> significantly reduced the scope of educational fair use.  In the case of
> the non-commercial entity, I would argue that the GFDL is the trump card
> here, as reproducing Wikipedia (and almost all Wikimedia) content must
> be done under the terms of the GFDL, which explictly permits commercial
> reproduction.
>
> The response to this is that it doesn't matter if the GFDL applies.
>  They just want to include fair use images, even if the GFDL doesn't
> permit their reproduction.  This is essentially a "buyer beware"
> attitudue where you, as the end-user, are required to explicitly go
> through the licensing terms of all images you download together with an
> article and remove those images if you decide to pass the article on to
> a 3rd party.  The inclusion of an image on Wikipedia has no connection
> to the GFDL, but only if it is legal (even if barely) for it to be
> displayed on a website run by the WMF.
>
> I had a hard time understanding this philosohpy, but a fairly vocal
> group insists that this is where fair use policy on Wikipedia ought to
> be going.
>
> I should note that I got into this whole mess because I was involved
> with a group that was trying to write a Wikibook about M.C. Escher, and
> I tried to point out that they couldn't reproduce the Escher artwork
> unless they somehow were able to obtain a license that could be used
> under the GFDL.  The response was that the images were being used on
> Wikipedia, so why not Wikibooks?  The Escher reproductions are claiming
> fair use, but I think it has gone way too far on Wikipedia, as I believe
> these to be merely a copyright violation.
>

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Re: [Foundation-l] Fair Use (again)

Walter Vermeir-2
In reply to this post by Robert S. Horning
Robert Scott Horning schreef:
> I've somehow found myself embroiled in the middle of a fair-use fight on
> en.wikipedia, but an interesting viewpoint has expressed itself that I'm
> curious with the "powers that be" and other experienced Wikimedia users
> might find a bit interesting, at least in terms of where a significant
> faction of Wikipedia users want to go.
[cut]

I had very recently also a sort of discussion about this;
http://en.wikipedia.org/wiki/User_talk:Walter#Say_no_to_fair_use

I do not see any point in responding further there.

--
Contact: walter AT wikizine DOT org
Wikizine.org - news for and about the Wikimedia community


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Re: [Foundation-l] Fair Use (again)

David Gerard-2
In reply to this post by jmerkey-3
On 28/01/07, Jeff V. Merkey <[hidden email]> wrote:

> Yeah? How many of you have actually had to stand in front of a judge
> with millions of dollars of **YOUR**
> money on the line. I have stood there more times than I care to mention,
> and in most cases not by my own choice.
> Judges will not listen to whining exusces and weak arguments, and you
> don't get to argue over and over again
> after they rule -- you have to pay. The real shocker is when the judge
> orders you to pay
> the other sides legal fees. What if they hire Coudert Brothers from new
> York to defend them who charges $500.00/hour
> and they rack up 350,000.00 in fees just to send a dozen letters and
> file a complaint and you get ordered to pay it.


In the example I mentioned, it may be worth mentioning the Church of
Scientology has had to pay the attorney's fees for the people they
sued many a time.


> Cheaper to take down the content.


I suspect in a clear-cut case, you'd be surprised how many friends
Wikipedia has.

Not that I consider it a good idea to push it, of course.


- d.

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Re: [Foundation-l] Fair Use (again)

jmerkey-3
David Gerard wrote:

>On 28/01/07, Jeff V. Merkey <[hidden email]> wrote:
>
>  
>
>>Yeah? How many of you have actually had to stand in front of a judge
>>with millions of dollars of **YOUR**
>>money on the line. I have stood there more times than I care to mention,
>>and in most cases not by my own choice.
>>Judges will not listen to whining exusces and weak arguments, and you
>>don't get to argue over and over again
>>after they rule -- you have to pay. The real shocker is when the judge
>>orders you to pay
>>the other sides legal fees. What if they hire Coudert Brothers from new
>>York to defend them who charges $500.00/hour
>>and they rack up 350,000.00 in fees just to send a dozen letters and
>>file a complaint and you get ordered to pay it.
>>    
>>
>
>
>In the example I mentioned, it may be worth mentioning the Church of
>Scientology has had to pay the attorney's fees for the people they
>sued many a time.
>  
>

It can go the other way -- depends on who wins. In a case where we are
using someones copyrighted images and
they were posted by a n anonymous editor, I woud dare to guess we may
not alays be on the winning side ...

>
>  
>
>>Cheaper to take down the content.
>>    
>>
>
>
>I suspect in a clear-cut case, you'd be surprised how many friends
>Wikipedia has.
>
>Not that I consider it a good idea to push it, of course.
>  
>
We should act in good faith always. Good faith means if someone creates
a "cloud of doubt" and they are
an undisputed owner of the materials in question, a good faith action
would be to remove it.

" your honor, we always strive to act in good faith in all situations,
and in the present case, we were notified
the materials may have been copyrighted and removed them immediately IAW
with our policies. Given our
actions in good faith, we cannot be held liable as the other side claims
since we are simply a third party
interactive web service and we have complied with the DMCA at all times ..."

:-)

Jeff

>
>- d.
>
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>  
>


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Re: [Foundation-l] Fair Use (again)

David Gerard-2
On 28/01/07, Jeff V. Merkey <[hidden email]> wrote:
> David Gerard wrote:

> >In the example I mentioned, it may be worth mentioning the Church of
> >Scientology has had to pay the attorney's fees for the people they
> >sued many a time.

> It can go the other way -- depends on who wins. In a case where we are
> using someones copyrighted images and
> they were posted by a n anonymous editor, I woud dare to guess we may
> not alays be on the winning side ...


Oh, yeah. Only a fool *wants* this sort of thing to go to court.


> >I suspect in a clear-cut case, you'd be surprised how many friends
> >Wikipedia has.
> >Not that I consider it a good idea to push it, of course.

> We should act in good faith always. Good faith means if someone creates
> a "cloud of doubt" and they are
> an undisputed owner of the materials in question, a good faith action
> would be to remove it.
> " your honor, we always strive to act in good faith in all situations,
> and in the present case, we were notified
> the materials may have been copyrighted and removed them immediately IAW
> with our policies. Given our
> actions in good faith, we cannot be held liable as the other side claims
> since we are simply a third party
> interactive web service and we have complied with the DMCA at all times ..."
> :-)


In a serious battle, the Wikipedia's proven leaning more toward
copyright paranoia than copyright violation will stand us in good
stead! And we do finally have proper channels for outside parties to
raise legal concerns with the Foundation.

So in the general case, yes, you're entirely right.


- d.

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