Opinions on some issues (was Re: An idea to help solve Commons copyright woes)

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Opinions on some issues (was Re: An idea to help solve Commons copyright woes)

Anthony DiPierro
On 6/11/06, Brianna Laugher <[hidden email]> wrote:
> * There was recently a discussion about the "Against DRM" license (
> http://commons.wikimedia.org/wiki/Template:ADRM ).
>
The discussion is at
http://commons.wikimedia.org/wiki/Commons_talk:Licensing/ADRM

I never liked these anti-DRM clauses.  It should be noted though that
many of the current licenses have them.  The GFDL, for instance,
states that "You may not use technical measures to obstruct or control
the reading or further copying of the copies you make or distribute."

Personally I think it's better to state things as a permission, rather
than a restriction.  IOW, I'd favor "You may circumvent any technical
measures which attempt to obstruct or control the reading or further
copying of this work." [the exact wording might have to be put into
better legalease]  Since circumvention only has to happen once to free
the work from any DRM, I don't see the potential harm of any DRM
restrictions that don't have the power of law backing them up.

> * Logos. This has still not been sufficiently resolved, in that there
> is not a clear enough solution that everyone is aware of. Do we
> consider copyright independently of trademark status? Is that even
> possible? ( http://commons.wikimedia.org/wiki/Template:Deletion_requests#Image:CSU-Logo_1998.jpg
> )
>
It's possible to consider the effects of copyright law independently
of the effects of trademark law.  I'm not sure how useful of an
exercise this is, though.

As I understand it, trademark law, even internationally, doesn't
restrict the types of uses which commons was created for.  Does
commons want to create a repository of content which you can then use
in your car commercial?  If so, then I guess trademark law is
important.  If not, then I think it'd be good to hear some input from
lawyers in various jurisdictions as to what restrictions trademark law
*does* impose.

> * "Agencia Brasil" license  (
> http://commons.wikimedia.org/wiki/Template:Ag%C3%AAncia_Brasil ) also
> has been debated several times. Related to the wider issue of, "if a
> website says "these images can be used freely, can we interpret that
> as allowing commercial use and derivative works, and thus
> Commons-compliant? Or do we need to check each time whether they
> intend to allow these specific rights?"
>
That's an interesting question, though not really at all a legal one.
Personally I'd say the answer is somewhere in between, (try to get an
explicit license, and don't delete immediately, but possibly delete if
no response comes).  Of course, Wikimedia Commons pretty much relies
on the false assumption that it's possible to issue a non-revocable
license to everyone in the world.  So getting too technical about such
things is bound to fail.

> * Photographs of commercial products such as: Pokemon/Star
> Wars/Simpsons toys, box of Pringles, also people in dress-up outfits
> of characters such as Lara Croft/Chewbacca. Eloquence has raised this
> before ( http://commons.wikimedia.org/wiki/Template:Deletion_requests#May_21
> ) but I doubt even he would think this has been satisfactorily
> resolved.
>
This is similar to the trademark law question.  And I think it comes
back down to the question of what type of use is commons
contemplating.  Probably the majority of images on commons could be
cropped and used in some way which might violate someone's IP rights
in some jurisdiction.  On the other hand, it seems very unlikely that
someone is going to lose a lawsuit for using a photo of a can of
Pringles.  You could construct a hypothetical, but it'd be little more
than a mind experiment.

It would be nice to hear from some legal experts (licensed or not) in
various jurisdictions as to whether or not this is true.  What type of
cases have been lost over things like this?  We live in a world where
the Girl Scouts were threatened with a lawsuit for singing copyrighted
songs at the campfire, so maybe there are some such ridiculous
situations.

> * US presidential portraits (
> http://commons.wikimedia.org/wiki/Template:Deletion_requests#Official_paintings_held_by_the_U.S._Government
> ).
>
In this discussion and the previous one I've seen a lot of just plain
old incorrect statements of legal facts.  From what I've read it seems
to me that the works are probably technically copyrighted, but that
it's unlikely anyone is going to get sued over them.  Legal experts
should certainly be involved in determining if that's the case, but
the bigger question is what to do in such a case - similar to the one
about something "freely licensed" without a specific license.

> * Photographs of art - if the artwork itself is old enough to be PD,
> is it true that any photograph of the art itself is also PD, but any
> photograph of the art in its frame or on a wall  is not? (Because it
> is 3-D, not 2-D anymore)
>
That statement is not true in every situation nor in every jurisdiction.

> * Personality rights. What permission is required of people
> photographed, if any? (eg "Can I take your picture"/"Can I publish
> your picture on a public database that allows commercial use?") Is
> this a copyright concern or a "other law" concern that we don't need
> to worry about? What if the people aren't recognisable (and how can
> you decide that anyway?)? (
> http://commons.wikimedia.org/wiki/Template:Deletion_requests#All_pictures_of_little_girls_uploaded_by_User:Belginusanl
>  , also some of the "visible thong" pictures on
> http://commons.wikimedia.org/wiki/G-string have been nominated before)
>
In the US it's not copyright law, but "other law".  But I don't think
that means it can be ignored.

I'd say privacy rights are more similar to copyright law and that
images (or other content) which violates privacy rights shouldn't be
allowed.  But publicity rights are more like trademark law - they only
affect particular types of uses.

Then again, publicity rights tend to have a greater reach than
trademark rights.  I've just recently learned that some US states even
recognize publicity rights after death.  See (and listen to) this
story on NPR: http://www.npr.org/templates/story/story.php?storyId=5440241

If such a case holds up this could have a huge chilling effect on
things like Wikimedia Commons.  It'd be so bad I'd be inclined to say
that commons should outright ignore such laws.  Of course, I fail to
see how such a ruling could possibly be found consistent with the
First Amendment.

> * Stock xchange images (current:
> http://commons.wikimedia.org/wiki/COM:SXC villy also wrote
> http://commons.wikimedia.org/wiki/User:Aurevilly/sxc.hu_%282%29 but it
> seems to have stalled). What should be done with the existing images
> (which are intentionally not categorised in any way as such, so they
> might be hard to find), what do we have to do (if anything) in order
> to use current images?
>
> I don't really want to discuss any of these issues right now.

Heh, I do, but partly because I think there's a misconception involved
as to what questions are involved.

> I want to discuss whether or not other people think it would be appropriate
> to seek professional legal advice on issues like these and whether or
> not they think my idea of asking for the appointment of a CLO is a
> good idea or not.
>
I think there are some places where it'd be nice to have input from
legal experts, which is very different from getting professional legal
advice.  I also think there are lot of people who are giving really
bad input on the legal matters, and something should be done to make
it easier to filter them out.

But in most cases I think the issue comes down to a policy question,
and not a legal question.  And I actually think one of the biggest
problems is that people keep confusing the two.

Anthony
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