Wikimedia Foundation's help to the projects

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Re: [Commons-l] Wikimedia Foundation's help to the projects

nojhan-2
Le Thu, 14 Dec 2006 17:36:15 +0100, Erik Moeller a écrit:
> At the moment juriwiki-l is configured so that postings from the
> outside are moderated and replied to by a group of insiders. Is there
> any real issue, from a legal point of view, with making it a public
> mailing list? This is perhaps something Brad can answer.

This would be a good idea, imho.

There is a true need for simple ''informations'' about legal ''advices''.
Peoples does not ask WMF for represent them in a lawsuit nor to give
official "howto", but just to have a good idea of what they can do or not,
say or not, hope or not, and at which degree, with which confidence.
I agree with Birgitte SB on this point.

If all the WMF can do is a page explaining how difficult it is to have
clear legal statements, this is just fine, because we have ''explained''
something. What bothers me is when a contributor is just asking for
advices and that all we can answer to its questions is "wangle it yourself".

Let me be clear, I'm not talking about advices on how to prosecute someone
for improper copyright statement, but advices on how to convince someone
to allow free distribution of its work. For such negociations, having some
idea of legal issues and of what the WMF allow for its projects, can be
usefull.

--
Nojhan

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Re: [Commons-l] Wikimedia Foundation's help to the projects

Ray Saintonge
In reply to this post by Brad Patrick
Brad Patrick wrote:

>"You took the words right out of my mouth."  Exactly.  For those who
>want answers,
>(a) it's complicated
>(b) the answer is "it depends"
>(c) there is no "right" answer
>(d) if there is a "right" answer, it can be challenged
>(e) no, we aren't going to represent you to fight about it.
>
>This is a somewhat flip response, but it is the truth.
>
It may seem "flip", but it's a good starting point.  The first four are
as clear an expression of the law as one can expect.  The area where the
law of any country will clearly result in an act being absolutely legal
or absolutely illegal is very thin indeed.  The grey area in between is
massive.

I agree with (e) being a policy statement.  The costs involved would
suggest filling a bottomless money pit.  Since a decision to represent
anyone would imply a decision about which ones to represent, it is just
as well not to open that question.  Certainly, representing everyone who
is sued would be completely impractical.

Even more important, defending any editor would imply accepting that
editor's IP bias.  May I be so bold as to say that this would not
represent an Neutral Point of View.  It may very well be that the
Foundation should observe a policy of strict neutrality in regards to
the activities of editors.  Thus, it should not be up to the Foundation
to determine whether there has in fact been a copyright violation.  Be
that as it may it needs to establish protocols for dealing with such
situations.  Not all apparent copyright violations that appear in the
projects are from people who understand what they are doing, or who
would be willing to take a stand if the situation were made clear to
them.  The Foundation itself, like the law itself, remains blind to such
violations until some individual has identified it and raised the
question.  Even a Trustee is an individual.

When an editor has been notified (most likely on his talk page) that
there is an apparent copyright violation he should respond within a
reasonable time (probably a week); otherwise, he will have acquiesced to
the determination by default.  Different procedures can be established
for those who claim that they did not receive the notification, but that
too presumes that they at least knew of the notice from the day that
they complained that they didn't.

An editor who wants to make a case that his action is within the law
needs to have the opportunity to do so at his own expense.  That expense
could be considerable, but it could also be negligible in the case of
material that is truly orphaned.  Thus when an editor is serious it
becomes important that the requirements for take-down orders be strictly
followed.  The Foundation needs to abide by these orders for its own
protection.  Doing so puts the case firmly in the hands of the editors,
and not necessarily just the one who made the allegedly offending
contribution.  If the matter is to go any further there are legally
defined steps which they must take, failing which the issue dies.  This
is why too I believe that all formal takedown orders whould be a matter
of the public record.

The Foundation should, of course, be prepared to defend itself if it is
sued.  If properly formulated takedown orders have been issued
compliance with that order is a good defence, as is failure to comply
with an order that is not properly formulated.  An order which is
missing key information is not properly formulated.  What would be wrong
would be for the Foundation to engage in argument or put forth a defence
(such as fair use) which would be the responsibility of the editors.

If I have limited myself to copyright matters it is not because I want
to ignore other legal issues.  Parallel treatments are likely
applicable, and tighter rules may be needed in other issues such as
libel where the damage can be more immediate.

>David Monniaux wrote:
>  
>
>>Yann Forget wrote:
>>    
>>
>>>For my practical use, is a photograph taken in India in 1908 by a Indian
>>>photographer is public domain in USA (first published in India)? and if
>>>it is taken in 1920? in 1945? and if the photographer is American (first
>>>published in USA)? and if the photographer is from a third country,
>>>England, for example? (Indian copyright law is "public domain 60 years
>>>after publication" for photographs and sound recordings).
>>>
It may not always be easy to establish when the picture was taken, or
who took it.  The evidence is often circumstantial.  A standard portrait
cannot be taken after a person's death.  Automobile models in the
background can be helpful in dating a picture.  A photo album that I
found in an eBay lot with unidentified photos from Honolulu could be
dated as no earlier than 1899 because a lawyer whose name appears in a
window started his business in that year, and no later than 1906 because
that was the last year in which Honolulu used horse drawn trams.  I have
no idea whether these photos were ever published anywhere.

>>Two major problems here:
>>* In many cases, copyright questions may be resolved only on a
>>case-by-case basis. For instance, in many countries, copyright only
>>protects "works of the mind" with no exhaustive and clear definition of
>>what a work of the mind is, and it is possible that certain technical
>>photographs are not works of the mind that can be protected by
>>copyright. However, deciding whether this is the case for a particular
>>photograph will entail examining details related to the photographic
>>process, and thus no clear-cut global answer can be provided.
>>
The case-by-case basis cannot be overemphasized.  That is one reason why
the Foundation cannot put itself in the position of making such
determinations.

>>* In many cases, what we intend to do simply has not been tested in
>>court. People often mistakenly believe that there are things that are
>>"legal" vs things that are "prohibited" and thus that lawyers can tell
>>us which is which. In reality, there are things clearly legal, those
>>clearly illegal, and things in between for which a lawyer may only give
>>some kind of educated guess of whether that would fly in court (which in
>>turn depends on how well we argue our case in court).
>>
Absolutely!  Some countries do not allow people to put their works into
the public domain.  Others which do require such a notice to be
notarized.  Most "free licences", and provisions therin, remain untested
by the courts anywhere.

>>Both of this clash with the expectations of many of our users and
>>admins, that is, to get black and white "yes / no" answers to legal queries.
>>
Sure!  It all comes down to editors accepting responsibility for what
they do.  There is no passing on that responsibility to other editors or
to the Foundation.  That desire reflects an even greater social problem
outside of the Wikimedia projects.  Those with expectations are going to
need to get over it, and to learn that lottery tickets do not come with
a guarantee that you will have the price refunded if you do not win.

Ec

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Re: [Commons-l] Wikimedia Foundation's help to the projects

Ray Saintonge
In reply to this post by geni
geni wrote:

>On 12/14/06, David Monniaux <[hidden email]> wrote:
>  
>
>>* In many cases, copyright questions may be resolved only on a
>>case-by-case basis.
>>    
>>
>So we redefine the question to one that is somewhat more posible to
>answer and in some ways more useful.
>
That won't work.  If you redefine the question it's no longer the same
question.

Ec

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Re: [Commons-l] Wikimedia Foundation's help to the projects

Ray Saintonge
In reply to this post by Birgitte_sb
Birgitte SB wrote:

>I don't believe you understand how useful it would be
>to just have some one say "That particular case is
>unknown.  The most similar case to this is Foobar."  
>Even if there were a table of questions that people
>have asked in the past with yes/no/unknown and no
>futher advice would be extremely helpful.  I think it
>a false expectation of yours that we are expecting
>clearcut answers.  Really we have been mucking through
>copyright questions as best we can for some time; we
>are all well aware there are often not answers only
>arguments.  Just being able to eliminate some
>arguments as invalid would be very helpful.
>
We've been "mucking through" since day one.  Your proposal makes sense
until one examines the disciplined way in which Wikipedians deal with
such things.  High marks for optimism. ;-)

Ec

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Re: [Commons-l] Wikimedia Foundation's help to the projects

Ray Saintonge
In reply to this post by Erik Moeller-4
Erik Moeller wrote:

>Aside from the potential issues with the WMF "officially" giving such
>advice to the communities, Brad (our GC and ED) simply doesn't have
>the time to do this.
>
Nod.

>Let's brainstorm about how we can get juriwiki-l
>going, i.e. a functioning, community-driven group of advisors with
>demonstrable legal expertise.
>
Given the history of how threads tend to wander into nothingness, most
issues end up rolling back down the hill like Sisypus' boulder.

>At the moment juriwiki-l is configured so that postings from the
>outside are moderated and replied to by a group of insiders. Is there
>any real issue, from a legal point of view, with making it a public
>mailing list? This is perhaps something Brad can answer.
>  
>
There are both good and bad reasons for a public or private list.  I
can't see any of our lawyer types (Brad included) putting themselves in
a position where their legal observations can be used against them.  
Public perception is often very different from what a person actually
says.  This is especially problematical where people expect answers even
when answers don't exist.

We really need to promote an attitude of critical thinking in a game
theoretical model.  It might even take a whole new wiki, but I'm not
sure of that.  The state of the law is questionable when any kind of
solution really depends on a sophisticated analysis that depends on the
efforts of professionals at a cost far in excess of the amounts being
discussed.

Maybe we need to be writing our own law.  Free the law!

Ec

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Re: [Commons-l] Wikimedia Foundation's help to the projects

Yann Forget-2
In reply to this post by Erik Moeller-4
Hello,

Brad Patrick a écrit :
> "You took the words right out of my mouth."  Exactly.  For those who
> want answers,
> (a) it's complicated
> (b) the answer is "it depends"
> (c) there is no "right" answer
> (d) if there is a "right" answer, it can be challenged
> (e) no, we aren't going to represent you to fight about it.

Erik Moeller a écrit :

> On 12/14/06, Birgitte SB <[hidden email]> wrote:
>
>>I don't believe you understand how useful it would be
>>to just have some one say "That particular case is
>>unknown.  The most similar case to this is Foobar."
>>Even if there were a table of questions that people
>>have asked in the past with yes/no/unknown and no
>>futher advice would be extremely helpful.  I think it
>>a false expectation of yours that we are expecting
>>clearcut answers.  Really we have been mucking through
>>copyright questions as best we can for some time; we
>>are all well aware there are often not answers only
>>arguments.  Just being able to eliminate some
>>arguments as invalid would be very helpful.
>
>
> Aside from the potential issues with the WMF "officially" giving such
> advice to the communities, Brad (our GC and ED) simply doesn't have
> the time to do this.

Obviously I didn't mean that Brad or any professional lawyer paid by the
Foundation has to write all this. The information has to be put down by
the wiki editors as usual, but I think that the coordination is to be
done at the Foundation level, not for each wiki. Then maybe a
professional lawyer in behalf of the Foundation can give a general
agreement about the policy, or just say "this is wrong and has to be
written again". I am not even sure if this last step is necessary or
possible.

> Let's brainstorm about how we can get juriwiki-l
> going, i.e. a functioning, community-driven group of advisors with
> demonstrable legal expertise.
>
> At the moment juriwiki-l is configured so that postings from the
> outside are moderated and replied to by a group of insiders. Is there
> any real issue, from a legal point of view, with making it a public
> mailing list? This is perhaps something Brad can answer.

For what I need, I don't think a mailing list is the answer.
I think that the information should be on the wiki (probably Meta or
Commons).

There is already a lot of information about legal issues on different
wikis [1], so I cannot really buy the idea that legal matters cannot
generally be written down somewhere. Simply what is already there is not
enough, and a bit more detailed information is needed.

Ray Saintonge a écrit :
> It may not always be easy to establish when the picture was taken, or
> who took it.

All the above implies that this information is known, obviously. The
case when this information is unknown will need rules in itself, and it
may not be the least interesting. Which rules are to be applied when the
author is not known? when the date is not known? when the place is not
known? etc.

So I started a stub here. Please help to complete it.
http://commons.wikimedia.org/wiki/Commons:Copyright_rules

[1] See for example http://commons.wikimedia.org/wiki/Commons:Copyright_tags

Regards,

Yann
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Re: [Commons-l] Wikimedia Foundation's help to the projects

Brad Patrick
I have put a disclaimer on the page pending development and a larger
internal discussion about what is or is not a proper position to be
taken by the Foundation.

Thanks for kicking this off!

-Brad

Yann Forget wrote:

> Hello,
>
> Brad Patrick a écrit :
>  
>> "You took the words right out of my mouth."  Exactly.  For those who
>> want answers,
>> (a) it's complicated
>> (b) the answer is "it depends"
>> (c) there is no "right" answer
>> (d) if there is a "right" answer, it can be challenged
>> (e) no, we aren't going to represent you to fight about it.
>>    
>
> Erik Moeller a écrit :
>  
>> On 12/14/06, Birgitte SB <[hidden email]> wrote:
>>
>>    
>>> I don't believe you understand how useful it would be
>>> to just have some one say "That particular case is
>>> unknown.  The most similar case to this is Foobar."
>>> Even if there were a table of questions that people
>>> have asked in the past with yes/no/unknown and no
>>> futher advice would be extremely helpful.  I think it
>>> a false expectation of yours that we are expecting
>>> clearcut answers.  Really we have been mucking through
>>> copyright questions as best we can for some time; we
>>> are all well aware there are often not answers only
>>> arguments.  Just being able to eliminate some
>>> arguments as invalid would be very helpful.
>>>      
>> Aside from the potential issues with the WMF "officially" giving such
>> advice to the communities, Brad (our GC and ED) simply doesn't have
>> the time to do this.
>>    
>
> Obviously I didn't mean that Brad or any professional lawyer paid by the
> Foundation has to write all this. The information has to be put down by
> the wiki editors as usual, but I think that the coordination is to be
> done at the Foundation level, not for each wiki. Then maybe a
> professional lawyer in behalf of the Foundation can give a general
> agreement about the policy, or just say "this is wrong and has to be
> written again". I am not even sure if this last step is necessary or
> possible.
>
>  
>> Let's brainstorm about how we can get juriwiki-l
>> going, i.e. a functioning, community-driven group of advisors with
>> demonstrable legal expertise.
>>
>> At the moment juriwiki-l is configured so that postings from the
>> outside are moderated and replied to by a group of insiders. Is there
>> any real issue, from a legal point of view, with making it a public
>> mailing list? This is perhaps something Brad can answer.
>>    
>
> For what I need, I don't think a mailing list is the answer.
> I think that the information should be on the wiki (probably Meta or
> Commons).
>
> There is already a lot of information about legal issues on different
> wikis [1], so I cannot really buy the idea that legal matters cannot
> generally be written down somewhere. Simply what is already there is not
> enough, and a bit more detailed information is needed.
>
> Ray Saintonge a écrit :
>  
>> It may not always be easy to establish when the picture was taken, or
>> who took it.
>>    
>
> All the above implies that this information is known, obviously. The
> case when this information is unknown will need rules in itself, and it
> may not be the least interesting. Which rules are to be applied when the
> author is not known? when the date is not known? when the place is not
> known? etc.
>
> So I started a stub here. Please help to complete it.
> http://commons.wikimedia.org/wiki/Commons:Copyright_rules
>
> [1] See for example http://commons.wikimedia.org/wiki/Commons:Copyright_tags
>
> Regards,
>
> Yann
> _______________________________________________
> foundation-l mailing list
> [hidden email]
> http://mail.wikipedia.org/mailman/listinfo/foundation-l
>  
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Re: Wikimedia Foundation's help to the projects

Ray Saintonge
In reply to this post by Michael Snow
Michael Snow wrote:

>Erik Moeller wrote:
>  
>
>>On 12/14/06, Birgitte SB <[hidden email]> wrote:
>>    
>>
>>>I don't believe you understand how useful it would be
>>>to just have some one say "That particular case is
>>>unknown.  The most similar case to this is Foobar."
>>>Even if there were a table of questions that people
>>>have asked in the past with yes/no/unknown and no
>>>futher advice would be extremely helpful.  I think it
>>>a false expectation of yours that we are expecting
>>>clearcut answers.  Really we have been mucking through
>>>copyright questions as best we can for some time; we
>>>are all well aware there are often not answers only
>>>arguments.  Just being able to eliminate some
>>>arguments as invalid would be very helpful.
>>>      
>>>
>>Aside from the potential issues with the WMF "officially" giving such
>>advice to the communities, Brad (our GC and ED) simply doesn't have
>>the time to do this. Let's brainstorm about how we can get juriwiki-l
>>going, i.e. a functioning, community-driven group of advisors with
>>demonstrable legal expertise.
>>
>>At the moment juriwiki-l is configured so that postings from the
>>outside are moderated and replied to by a group of insiders. Is there
>>any real issue, from a legal point of view, with making it a public
>>mailing list? This is perhaps something Brad can answer.
>>    
>>
>In the context of rethinking the various internal, private mailing
>lists, I'm not sure whether it will be considered appropriate to
>continue juriwiki-l in its present form. As Anthere noted, the list is
>not all that active at present. However, it has had sporadic use and a
>variety of sensitive subjects were discussed there with an expectation
>of confidentiality. So I would strongly oppose simply converting it to a
>public list and making the accompanying archives public.
>
>If a public list dedicated to legal issues is thought desirable, it
>should be launched separately. We had wikilegal-l before, but that too
>dwindled into oblivion.
>
I agree with Michael that sorting out the confidentialities of the past
juriwiki list would require a delicacy that may exceed the value of the
results.  Even if an investigation showed that making the information
public would do no harm, I don't think that I for one would gain very
much by ploughing throw an old archive.  If a mailing list is the
appropriate forum for pursuing these matters, it should likely be a new
list.

It remains to be seen whether there should be two such lists, one to
deal with copyright law, and one for other legal questions.  No-one will
dispute the complexity of copyright law and its importance to attaining
wiki goals and objectives.  This branch of the law receives likely as
much attention here as all the rest put together.

I believe that we should be attentive to the law, but I also believe
that nothing is accomplished without pushing the boundaries of the law.  
I believe that the law, and especially copyright law, is seldom a matter
of black and white, and that there is a huge mushy middle of unsettled
issues where actions could as easily be judged legal as illegal.

The Foundation should absolutely not put itself in the position where it
will be liable for the misbehaviour of members.  This includes liability
for copyright infringement.  In conflict with this is the goal of not
only using free material, but of making material free.  Under a strict
reading of the law orphan works are not free, but they may nevertheless
be free if there is nobody there to own the copyrights.  Copyright law
was developed by and for those who believed they had rights to protect.  
Those who published with no concern for these rights, or who saw only
short term benefits in them view them at most with benign indifference.  
Most would be delighted than anyone would be at all interested to
reproduce their early work of that of their ancestors.  Even more of the
work is not worth republishing.  The risk and responsibility for dealing
with this must be assumed at an individual level.

There are at least two reasons for maintaining a restricted mailing
list.  Confidentiality is clearly one that needs no further
explanation.  Another would be to encourage getting things done.  We
can't all do everything.  Too often on mailing lists we hear gripes
about some proposal, but asking the complainer for better alternatives
produces only silence.  Anthere has occasionally and rightly expressed
her frustrations about this.  People want to participate in decisions,
but they can't.  This is not because there are others to prevent their
participation, but because the daily pressures in their own lives act as
a restricting force.  When their personal time table only allows them to
participate in one of two decisions they must choose, and leave others
to deal with the unchosen one. This can be a very difficult choice for
some, and the rest of us cannot be kept waiting while they cling to the
vain hope that someday they will have the time.  It's a serious dilemma
in democratic institutions that want to make the maximum effort to have
everyone represented.  There are others who are very happy to take
advantage of such a loophole.

Can we have a semi-restricted mailing list?  The purpose of the list
would be to find solutions to copyright dilemmas.  (That we are here
discussing it in relation to copyright law would not prevent this
technique from being applied for other lists with different purposes.)  
Full membership in the list would be limited in number.  Read-only
membership would be much larger.  If the list reaches its arbitrarily
established membership limit, a new "list2" could be started with
similar restrictions.  List2 members could then move to list1 when there
is a vacancy.  Preset criteria, including prolonged absence, could be
established for dropping people from the list.

Ec





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Re: Wikimedia Foundation's help to the projects

Anthony DiPierro
On 12/23/06, Ray Saintonge <[hidden email]> wrote:

> Can we have a semi-restricted mailing list?  The purpose of the list
> would be to find solutions to copyright dilemmas.  (That we are here
> discussing it in relation to copyright law would not prevent this
> technique from being applied for other lists with different purposes.)
> Full membership in the list would be limited in number.  Read-only
> membership would be much larger.  If the list reaches its arbitrarily
> established membership limit, a new "list2" could be started with
> similar restrictions.  List2 members could then move to list1 when there
> is a vacancy.  Preset criteria, including prolonged absence, could be
> established for dropping people from the list.
>
Is a mailing list really the best way of handling this?  It seems to
me that there would be a lot of unnecessary repetition coming from a
list.  Most of the copyright dilemmas that come up from time to time
have already been resolved to a point where anything further is just
speculation.  The only benefit I see from a semi-restricted list as
opposed to a wiki (or subset of a wiki) would be that perhaps experts
would feel more comfortable contributing to a list.  Is this even
true?  And would there be a way around it (maybe a semi-restricted
wiki)?

A list in general would also be helpful for just pointing people who
don't know where to look to the information in the wiki, but any of
the existing open mailing lists could easily handle that volume in
addition to the present volume.

Anthony
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