Mailing List Archive

On 7/20/06, Brianna Laugher <brianna.laugher@gmail.com> wrote:

> * To what extent are we bound by local laws

Every user is bound by their own local laws. Whether the project
decides to adhere to any of those is more of a policy issue than a
legal one.

> * Flickr allows users to change the licenses on their images with no
> external notice. So CC-BY or CC-BY-SA images uploaded to Commons might
> later appear to be CC-BY-NC-ND or even "all rights reserved". This is
> an increasing problem. Obviously Flickr needs a "history" tab, but
> until then...? (current discussion at
> http://commons.wikimedia.org/wiki/Commons:Village_pump#Flickr_allows_license_changes
> )

The problem here is whether to trust the user who originally added a
tag that no longer matches what is on flickr.

> I really feel distaste at the idea that the Foundation would avoid
> involving itself in such questions in order to avoid legal
> culpability.

Has anyone said the avoid Foundation is refusing to answer questions
for that reason? I'd assumed the problem was that no one knew the
answers, not that they did but were purposefully withholding the
information.

Angela
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On 20/07/06, Angela <beesley@gmail.com> wrote:
> > * Flickr allows users to change the licenses on their images with no
> > external notice. So CC-BY or CC-BY-SA images uploaded to Commons might
> > later appear to be CC-BY-NC-ND or even "all rights reserved". This is
> > an increasing problem. Obviously Flickr needs a "history" tab, but
> > until then...? (current discussion at
> > http://commons.wikimedia.org/wiki/Commons:Village_pump#Flickr_allows_license_changes
> > )
>
> The problem here is whether to trust the user who originally added a
> tag that no longer matches what is on flickr.

Deciding this issue case-by-case depending on the "trustworthiness" of
the original uploader doesn't seem very sensible to me, especially in
a far-knit community like Commons. Besides which, everyone can make a
mistake.

> > I really feel distaste at the idea that the Foundation would avoid
> > involving itself in such questions in order to avoid legal
> > culpability.
>
> Has anyone said the avoid Foundation is refusing to answer questions
> for that reason? I'd assumed the problem was that no one knew the
> answers, not that they did but were purposefully withholding the
> information.

Well, it rather was suggested that (
http://mail.wikipedia.org/pipermail/commons-l/2006-June/000278.html ),
but good point, I wrote this in a fairly assuming way. So, sorry for
that. Any and all attempted answers welcome.

Brianna
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Photographs of copyrighted statues and of objects featuring
copyrighted logos and images (Simpson's dolls) should be taken down
immediately. I think photos of 2D and 3D PD art rarely can have
claims of copyright, but I'm not a lawyer.
--
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On 7/20/06, Oldak Quill <oldakquill@gmail.com> wrote:
> Photographs of copyrighted statues and of objects featuring
> copyrighted logos and images (Simpson's dolls) should be taken down
> immediately. I think photos of 2D and 3D PD art rarely can have
> claims of copyright, but I'm not a lawyer.

IMNAL

But as far as I understand 3D certianly can under US law (I think the
court decided that it could based on camera angels and lighting and
such. I belive the case involved a photo of a statue in a graveyard).
Photos of 2D objects are more complex since no one appears to want to
risk a case in that area (situation is even worse in the UK).

--
geni
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On 7/20/06, Oldak Quill <oldakquill@gmail.com> wrote:
> Photographs of copyrighted statues and of objects featuring
> copyrighted logos and images (Simpson's dolls) should be taken down
> immediately. I think photos of 2D and 3D PD art rarely can have
> claims of copyright, but I'm not a lawyer.

So, you wouldn't allow photos of buildings where a company's logo was
on their building?
http://commons.wikimedia.org/wiki/Image:NYC_Top_of_the_Rock_Pano.jpg
is a featured image on commons and has logos, even if they are a bit
blurry. A clearer example is
http://en.wikipedia.org/wiki/Image:Melb_cbd.jpg

Angela.
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On Thu, July 20, 2006 13:00, Brianna Laugher wrote:
> Here are some recent issues that I would like resolved:
> * To what extent are we bound by local laws and to what extent are we
> bound by Florida's laws (as the home of our servers).

Something that was in The Register yesterday
(http://www.theregister.co.uk/2006/07/19/youtube_copyright/) includes

"That protection [the DCMA] is irrelevant in the UK, says another
intellectual property expert. Kim Walker is a partner who specialises in
media law at Pinsent Masons, the law firm behind OUT-LAW.

...

Because this is intellectual property, the law that applies is that of the
place the alleged infringement took place," said Walker. "That applies
even if the servers are in Madras or the Channel Islands."

Alison
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> So, you wouldn't allow photos of buildings where a company's logo was
> on their building?
> http://commons.wikimedia.org/wiki/Image:NYC_Top_of_the_Rock_Pano.jpg
> is a featured image on commons and has logos, even if they are a bit
> blurry. A clearer example is
> http://en.wikipedia.org/wiki/Image:Melb_cbd.jpg


If we can be sure that we aren't breaking the law, then I'd be very
happy for Commons to house such images. I really can't say whether
we're breaking the law to copyleft an image with a copyrighted logo in
it, I certainly hope law isn't that restrictive.

--
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> On Thu, July 20, 2006 13:00, Brianna Laugher wrote:
> > Here are some recent issues that I would like resolved:
> > * To what extent are we bound by local laws and to what extent are we
> > bound by Florida's laws (as the home of our servers).

Will the placing of some media servers in countries with more liberal
copyright laws ever be a viable option? Even if we housed some media
in, say, Sweden, would the content still be judged by the standards of
Florida because that is where the Foundation is based?

--
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On 21/07/06, Oldak Quill <oldakquill@gmail.com> wrote:
> > So, you wouldn't allow photos of buildings where a company's logo was
> > on their building?
> > http://commons.wikimedia.org/wiki/Image:NYC_Top_of_the_Rock_Pano.jpg
> > is a featured image on commons and has logos, even if they are a bit
> > blurry. A clearer example is
> > http://en.wikipedia.org/wiki/Image:Melb_cbd.jpg
>
>
> If we can be sure that we aren't breaking the law, then I'd be very
> happy for Commons to house such images. I really can't say whether
> we're breaking the law to copyleft an image with a copyrighted logo in
> it, I certainly hope law isn't that restrictive.

The feeling at the moment tends to be: it's *in context* so it's OK.
We have quite a few images that have a mishmash of logos. But if you
crop any of those photos to just show one logo only, then that crop
would not be free.

Brianna
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Oldak Quill wrote:

>>On Thu, July 20, 2006 13:00, Brianna Laugher wrote:
>>
>>
>>>Here are some recent issues that I would like resolved:
>>>* To what extent are we bound by local laws and to what extent are we
>>>bound by Florida's laws (as the home of our servers).
>>>
>>>
>Will the placing of some media servers in countries with more liberal
>copyright laws ever be a viable option? Even if we housed some media
>in, say, Sweden, would the content still be judged by the standards of
>Florida because that is where the Foundation is based?
>
To a large extent this is unanswerable, and waiting for legal certainty
is a sure road to paralysis. The laws of Florida on copyright matters
do not have a big impact on what we do since copyright is a federal
matter in the United States. There may be slight variations from one
state to another or from one federal judicial district to another, but
in carving out broad policy on copyright it is probably reasonable to
say that what applies in one U.S. state will also apply in all the others.

As things stand US copyright laws in many of the aspects that concern us
are at the liberal end of the scale. In particular the United States
has developed the fair use concept more than most other countries.
There are also other peculiar features to U.S. law that have been since
repealed, but are nevertheless grandfathered that give some advantages
to having U.S. law apply at least until the year 2046. If the laws of
Sweden or any other country were to be made applicable it should be
based on a positive case for that being made by the proponents. That
case would of course include an examination of the relevant laws of that
country.

In my mind the only positive case that exists so far is for Wikisource
to include certain materials on servers in countries with a Berne
Convention life + 50 expiry on copyrights. Project Gutenberg appears to
have done this successfully on Australian servers before that country
changed its copyright laws. The important thing in those circumstances
would be to have those servers under the control of that national
organization and with a top level domain in that country.

For now, I can see no other practical situation where this would apply.

Ec

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Alison Wheeler wrote:

>On Thu, July 20, 2006 13:00, Brianna Laugher wrote:
>
>
>>Here are some recent issues that I would like resolved:
>>* To what extent are we bound by local laws and to what extent are we
>>bound by Florida's laws (as the home of our servers).
>>
>>
>Something that was in The Register yesterday
>(http://www.theregister.co.uk/2006/07/19/youtube_copyright/) includes
>
>"That protection [the DCMA] is irrelevant in the UK, says another
>intellectual property expert. Kim Walker is a partner who specialises in
>media law at Pinsent Masons, the law firm behind OUT-LAW.
>...
>Because this is intellectual property, the law that applies is that of the
>place the alleged infringement took place," said Walker. "That applies
>even if the servers are in Madras or the Channel Islands."
>
I suspect that this case will be fact driven, notably over who really
owns the copyright and exactly what material is copyright.

The idea of "where the infringement takes place" is not viewed in the
same way in the UK and other countries as it is in the US. The UK views
infringement as happening where the material is used or viewed. By this
doctrine the viewing of a protected site by a UK resident is sufficient
to give the UK jurisdiction over the site.

It would appear though that an ISP would still need to be notified that
there is an infringement before it has to take it down.

Ec

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Oldak Quill wrote:

>>So, you wouldn't allow photos of buildings where a company's logo was
>>on their building?
>>http://commons.wikimedia.org/wiki/Image:NYC_Top_of_the_Rock_Pano.jpg
>>is a featured image on commons and has logos, even if they are a bit
>>blurry. A clearer example is
>>http://en.wikipedia.org/wiki/Image:Melb_cbd.jpg
>>
>>
>If we can be sure that we aren't breaking the law, then I'd be very
>happy for Commons to house such images. I really can't say whether
>we're breaking the law to copyleft an image with a copyrighted logo in
>it, I certainly hope law isn't that restrictive.
>
You can NEVER be sure that you aren't breaking the law. Please stop
expecting miracles.

Whether something like this is copyrightable depends on the law of the
country where the object is located. The notion that a picture of a
building with a company logo on it might be a breach of copyright is
preposterous. Has there ever been a single case in any country that
supports this notion?

Ec

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Brianna Laugher wrote:

>On 21/07/06, Oldak Quill <oldakquill@gmail.com> wrote:
>
>
>>>So, you wouldn't allow photos of buildings where a company's logo was
>>>on their building?
>>>http://commons.wikimedia.org/wiki/Image:NYC_Top_of_the_Rock_Pano.jpg
>>>is a featured image on commons and has logos, even if they are a bit
>>>blurry. A clearer example is
>>>http://en.wikipedia.org/wiki/Image:Melb_cbd.jpg
>>>
>>>
>>If we can be sure that we aren't breaking the law, then I'd be very
>>happy for Commons to house such images. I really can't say whether
>>we're breaking the law to copyleft an image with a copyrighted logo in
>>it, I certainly hope law isn't that restrictive.
>>
>>
>The feeling at the moment tends to be: it's *in context* so it's OK.
>We have quite a few images that have a mishmash of logos. But if you
>crop any of those photos to just show one logo only, then that crop
>would not be free.
>
"May" not be free, not "would" not be free. There is no basis for such
certainty.

In any event, why would anyone want to use a low resolution crop, when
better pictures of the logo are probably more easily found?

Ec

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Oldak Quill wrote:

>Photographs of copyrighted statues and of objects featuring
>copyrighted logos and images (Simpson's dolls) should be taken down
>immediately. I think photos of 2D and 3D PD art rarely can have
>claims of copyright, but I'm not a lawyer.
>
>
If you're not a lawyer why are you pushing these legal interpretations?

How are you distinguishing between copyrighted and non-copyrighted statues?

Even for the other photos of copyrighted objects depend on how they are
used for determination of breach of copyright.

Ec

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On 7/20/06, Brianna Laugher <brianna.laugher@gmail.com> wrote:
> * To what extent are we bound by local laws and to what extent are we
> bound by Florida's laws (as the home of our servers).
[snip]

1) Uploaders should obey their local laws.
2) Content on the site should obey laws in Florida.
3) As a project with international goals an impact our content should
be as widely useful world wide as possible and thus be as free as
possible in every place with sane laws.

The content commons should host should be only content which passes
under each of those three broad areas.

German "right of panorama" work obviously passes (1).
In the US material which is permitted under German right of panorama
would be okay because the inclusion of copyrighted works is in
incidental inclusion, making the content okay where our servers are
(2).
And most countries have some kind of established common sense
principal, furthermore almost no image of an urban public space is
possible withone some degree of incidental inclusion... So whatever
problems an image might have in some country no other simmlar image
would be free of them. (3)

> * There was recently a discussion about the "Against DRM" license (
> http://commons.wikimedia.org/wiki/Template:ADRM &
> http://commons.wikimedia.org/wiki/Commons_talk:Licensing/ADRM ).

I haven't yet read the discussion, but I can't see with a surfance
glance why we would forbid this license. Although the license appears
to be fairly poorly written it appears no more restrictive than the
GFDL. The wording is a bit unclear since it doesn't disambiguate use
in DRM apps with DRM distribution, but the intent seems clear enough.
Have we attempted to contact the authors to get them to make the
license more clear?

A copyleft license is somewhat pointless if it doesn't prohibit people
from removing the freedom via technological measures. I understand
that some people involved with Wikimedia are strongly against
copyleft, but their personal wishes shouldn't be setting our policy.

> * 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? (

Yuck. Cant we just leave these images for the projects to host locally for now?
We're not even near mastering copyright yet... Trademark is an even
more fun ball of yuck.

> * "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?"

In American english "You may use this image" does not imply that you
can grant others unlimited redistribution rights, and the right to
make derivative works. Perhaps if someone said "you may use" with the
full knoweldge of who we are and what we do... but never as a general
permission on a website.

This isn't a new position.

> * 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/Commons:Deletion_requests/Archives10#Various_Star_Wars_pictures
> ) but I doubt even he would think this has been satisfactorily
> resolved.

Copyrighted sculptures are an issue... And in theory that includes
pokemon dolls and the like.

Sad as it is, if we want to be confident that our content is free we
must not include these things except incidentally.

However, I feel these are the least of our problems right now... our
effort would be better spent on other images.


> * US presidential portraits (
> http://commons.wikimedia.org/wiki/Commons_talk:Licensing#Portraits_with_unclear_copyright_status_from_the_U.S._Federal_Government
> kind of got split up and was carried over from a debate on en.wp
> anyway).


> * 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)

Since I forgot to mention it before, I am not a lawyer. This is my
personal view. It has more to do with what I think our posisiton
should be irrespective of the law and what I worry the law might
become rather than what it is.

It depends. If it is a mechnical reproduction, suchs works would be
free under US law due to Bridgeman v. Corel.

It's not clear to me that Bridgeman v. Corel would actually stand if
someone tried to apply it to, for example, works galleries publish of
because most of the time such works are not mere mechnical
reproduction but require substantial artistic and technical decision
making (try getting cobalt containing watercolors to come out right on
normal film or a normal CCD sensor.. YUCK).

As much of a problem as the above may be for us, it's not the worst of
it: Simmlar cases to Bridgeman v. Corel have come up in the UK and
the decision has been exactly the opposite.

I'd be much happier if we had people sneaking into galleries and
taking pictures (no flash please)... I don't have confidence that a
dependance on Bridgeman v. Corel will be good for us long term.

Like above I don't think this is (yet) the biggest of our problems.

> * 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#Image:Kind_in_Nord.C3.A4thiopien.jpg
> is a current one, also some of the "visible thong" pictures on
> http://commons.wikimedia.org/wiki/G-string have been nominated before)

This is something we need to do something about... We should at least
propose a standard model release for Wikipedian photographers to
use...

Without a releas photographs with identifyable people are not free
content in the US.

> * 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?

They are easy to identify by searching for the external links.
I'm in the process of trying to contact all the SXC authors, but keeps
blocking my IP. :)

> * Flickr allows users to change the licenses on their images with no
> external notice. So CC-BY or CC-BY-SA images uploaded to Commons might
> later appear to be CC-BY-NC-ND or even "all rights reserved". This is
> an increasing problem. Obviously Flickr needs a "history" tab, but
> until then...? (current discussion at
> http://commons.wikimedia.org/wiki/Commons:Village_pump#Flickr_allows_license_changes
> )

What is worse, is that uploaders on commons simply get them wrong
fairly often.. So it's hard to take a high ground on the subject.

When it comes down to it, these people don't have a contract with
us.. we've compensated them not a lick... they are completely unaware
of our use. As a result our position is weak.

It's simply not possible for a person to accidently free their work
(i.e. by making a wrong selection from a drop down, and not catching
it before a Wikimedia commons scavenger finds it). If someone
protests we can, we do, and we must remove the work. It is the only
ethical thing to do (or do we want a reputation as a bunch of jerks
trying to rip creators off), and it is quite possibly the only legal
thing to do.

This is just another reason that we should reduce our reliance on
image scavengers and instead ask people to upload their works directly
and with full knoweldge of the consiquences However, people seem far
more interested in running bots to scavange rather than sending out
email invitations to join our effort. One pumps your contrib count
and makes you look good, the other brings you no positive attention
but helps the project more.

> I really feel distaste at the idea that the Foundation would avoid
> involving itself in such questions in order to avoid legal
> culpability.

Why? None of these are cut and dry. If we limit ourselves to only
the images that are zero risk we would have a LOT less content... and
we'd have to reject a lot which will be free for all meaningful
purposes. When it comes down to it, most of these things can only
be decided in a court, and courts rule in strage ways. An official
statement by the foundation would be risky and without much gain...
after all, what would a statement really accomplish that we couldn't?
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On 21/07/06, Ray Saintonge <saintonge@telus.net> wrote:
> If you're not a lawyer why are you pushing these legal interpretations?

Because that's what we're all doing. I don't think my conservative
interpretation of the law is dangerous in any way.
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On 7/21/06, Oldak Quill <oldakquill@gmail.com> wrote:
> On 21/07/06, Ray Saintonge <saintonge@telus.net> wrote:
> > If you're not a lawyer why are you pushing these legal interpretations?
>
> Because that's what we're all doing. I don't think my conservative
> interpretation of the law is dangerous in any way.

Saying that photos of 3D pd works do not carry copyright is not a
conservative interpretation. :)

The only reason that we hold the position that (in the US) photographs
of PD 2D works don't gain the photographers copyright is because of
Bridgeman v. Corel.
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On 22/07/06, Gregory Maxwell <gmaxwell@gmail.com> wrote:
> Saying that photos of 3D pd works do not carry copyright is not a
> conservative interpretation. :)

I said that them carrying copyright is rare. I was entirely mistaken
in this sentence. My point relating to 3D PD works was more that if
the author uses odd shadowing and angles or anything creative like
that I would certainly consider them copyrighted. Naturally, all
photography of 3D objects employs shadow to some extent and I don't
think the copyright/non-copyright line can be drawn between degrees of
shadow-use.

> The only reason that we hold the position that (in the US) photographs
> of PD 2D works don't gain the photographers copyright is because of
> Bridgeman v. Corel.

Yes, I had heard of a case. Thanks for the name.
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On 7/21/06, Gregory Maxwell <gmaxwell@gmail.com> wrote:
> As much of a problem as the above may be for us, it's not the worst of
> it: Simmlar cases to Bridgeman v. Corel have come up in the UK and
> the decision has been exactly the opposite.
>

Of course Bridgeman v. Corel did include a view that UK law would
produce the same result. I suspect that there are number of people
trying to make sure that there is no repeate case in the UK.

> I'd be much happier if we had people sneaking into galleries and
> taking pictures (no flash please)...

It is posible you could get permission from smaller galleries.

> Like above I don't think this is (yet) the biggest of our problems.
>

As long as we make sure to lable where we are useing it it should not
be a massive problem to fix.


> This is just another reason that we should reduce our reliance on
> image scavengers and instead ask people to upload their works directly
> and with full knoweldge of the consiquences However, people seem far
> more interested in running bots to scavange rather than sending out
> email invitations to join our effort. One pumps your contrib count
> and makes you look good, the other brings you no positive attention
> but helps the project more.
>

Are you sure that exposeing wikipedians to the outside is a good idea?

--
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On 7/21/06, geni <geniice@gmail.com> wrote:
> Of course Bridgeman v. Corel did include a view that UK law would
> produce the same result. I suspect that there are number of people
> trying to make sure that there is no repeate case in the UK.

Yes indeed, this is why I was quite shocked and disappointed when
JamesF told me otherwise. :-/

> > I'd be much happier if we had people sneaking into galleries and
> > taking pictures (no flash please)...
>
> It is posible you could get permission from smaller galleries.

Yes, Absolutely.

> > Like above I don't think this is (yet) the biggest of our problems.
> >
>
> As long as we make sure to lable where we are useing it it should not
> be a massive problem to fix.

Yes, and no... I don't think that the corel case would ever entirely
stop being a factor... but what exactly counts as a slavish
reproduction is an area which will see much debate in the future.

We may be in a position where we are stuck reviewing all the bridgeman
v. corel tagged images... and not being able to tell based on some
future precedent.

> Are you sure that exposeing wikipedians to the outside is a good idea?

Don't worry, you can get internet access outside now.
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Angela wrote:

>On 7/20/06, Brianna Laugher <brianna.laugher@gmail.com> wrote:
>
>
>>* To what extent are we bound by local laws
>>
>>
>Every user is bound by their own local laws. Whether the project
>decides to adhere to any of those is more of a policy issue than a
>legal one.
>
Yes. Every contributor should accept responsibility for his own actions.

>>* Flickr allows users to change the licenses on their images with no
>>external notice. So CC-BY or CC-BY-SA images uploaded to Commons might
>>later appear to be CC-BY-NC-ND or even "all rights reserved". This is
>>an increasing problem. Obviously Flickr needs a "history" tab, but
>>until then...? (current discussion at
>>http://commons.wikimedia.org/wiki/Commons:Village_pump#Flickr_allows_license_changes
>>)
>>
>>
>The problem here is whether to trust the user who originally added a
>tag that no longer matches what is on flickr.
>
I was looking at the Register discussuions on this as they relate to
YouTube. They make an important point about this sort of situation:
Withdrawing the licence is not retroactive. Those who used the material
before the licence was withdrawn were perfectly right to do so. If
YouTube transfers all its materials to a new YouTube Two the withdrawal
may not have any effect on the new company.

>>I really feel distaste at the idea that the Foundation would avoid
>>involving itself in such questions in order to avoid legal
>>culpability.
>>
>>
>Has anyone said the avoid Foundation is refusing to answer questions
>for that reason? I'd assumed the problem was that no one knew the
>answers, not that they did but were purposefully withholding the
>information.
>
I don't think that it's a simple matter of answering questions or not.
That no-one knows the answers is exactly right. At the same time there
are probably many Wikipedians who would feel more comfortable with a
wrong answer than no answer; that would give them an excuse to pass on
responsibility if the occasion ever demanded it.

The whole field of copyright law is so full of pitfalls and
uncertainties that almost any expression of legal opinion, whether by a
lawyer or layman, can be easily challenged to the point that either
opposite has an equal chance of prevailing.

WMF would probably do best to distance itself from these issues. It has
too much to lose from a wrong decision. The fundamental premise should
be that the uploader of material has the primary responsibility for
establishing the copyright status of what he provides. At the same time
it needs to safeguard its founding principle that it is providing an
free access resource. I certainly have ideas for attempting to
reconcile these concepts, but I'll save them for another time.

Ec

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Brianna Laugher wrote:

>Hello,
>
>I originally posted this to the commons-l list (
>http://mail.wikipedia.org/pipermail/commons-l/2006-June/000277.html )
>to little response. So let's see if I can do any better with a wider
>audience.
>
>
>* 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/Commons:Deletion_requests/Archives11#Image:CSU-Logo_1998.jpg
>)
>
>
The image has already been deleted so I have no idea what it refers to.
Nevertheless if it refers to a German entity, and German law allows it
that should be the end of the story. More on this below.

>* "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?"
>
"Todo esse conteúdo pode ser adquirido em várias definições, inclusive
em alta resolução, e ser utilizado livremente, mediante citação do
crédito." This seems clear enough. If commercial or derivative use is
not clearly forbidden than one should be able to presume that it is
allowed. Isn't this a general principle of law? Since he became
Minister of Culture Gilberto Gil has done much to move Brazil ahead.
Consider this extract from "Wired" Magazine:
http://www.wired.com/wired/archive/12.11/linux.html

> For Gil, "the fundamentalists of absolute property control" -
> corporations and governments alike - stand in the way of the digital
> world's promises of cultural democracy and even economic growth. They
> promise instead a society where every piece of information can be
> locked up tight, every use of information (fair or not) must be
> authorized, and every consumer of information is a pay-per-use tenant
> farmer, begging the master's leave to so much as access his own hard
> drive. But Gil has no doubt that the fundamentalists will fail. "A
> world opened up by communications cannot remain closed up in a feudal
> vision of property," he says. "No country, not the US, not Europe, can
> stand in the way of it. It's a global trend. It's part of the very
> process of civilization. It's the semantic abundance of the modern
> world, of the postmodern world - and there's no use resisting it."
>
> Gil laughs, as he often does when even he finds himself a little over
> the top. But these days it's not exactly unusual to hear this sort of
> thing from high-level members of the Brazilian government. The
> preservation and expansion of the information commons has long been a
> cause of hackers, academics, and the odd technoliterate librarian, but
> in the world's fifth-largest country it is fast becoming national
> doctrine. And the implications hardly end with free samba: Brazil, in
> its approach to drug patents, in its support for the free software
> movement, and in its resistance to Big Content's attempts to shape
> global information policy, is transforming itself into an open source
> nation - a proving ground for the proposition that the future of ideas
> doesn't have to be the program of tightly controlled digital rights
> now headed our way via Redmond, Hollywood, and Washington, DC.
>
Is this characteristic of a situation where someone's anal fears require
every bit to be questioned?

>* 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/Commons:Deletion_requests/Archives10#Various_Star_Wars_pictures
>) but I doubt even he would think this has been satisfactorily
>resolved.
>
Most of these are probably fair use. How else are you going to
illustrate these things. It's interesting to read to read the
attorney's fee decision in Mattel v. Forsythe
http://illegal-art.org/print/forsythe.pdf Forsythe had used a
representation of Barbie in a parody, and was awarded over $1.8 million
to compensate him for the costs of standing up to the toy giiant.
Mattel's action was judged unreasonable. We aren't even doing parodies
but simple neutral representations of the logos and other images.

Fair use did not come into U.S. law out of a vacuum. It was not a part
of the Copyright Act before 1909. Instead the concept developed through
a series of court decisions which were effectively codified in 1909.
Canada's Copyright Act does not go into a lot of great detail about
defining fair dealing, but the Supreme Court of Canada has used the
United States experience with approval. When dealing with similar
matters in the law of other countries it would be more helpful if people
referred to real precedents rather than simply guessing about what the
law means.

>* US presidential portraits (
>http://commons.wikimedia.org/wiki/Commons_talk:Licensing#Portraits_with_unclear_copyright_status_from_the_U.S._Federal_Government
> kind of got split up and was carried over from a debate on en.wp
>anyway).
>
Many of these guys died before 1923. Is there a suggestion that some of
these are posthumous pictures? :-)

>* 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)
>
How old is the frame? If the frame has its own copyright, can it be
cropped out? This would not be a problem in the US, but the UK
situation remains unresolved.

>* 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#Image:Kind_in_Nord.C3.A4thiopien.jpg
>is a current one, also some of the "visible thong" pictures on
>http://commons.wikimedia.org/wiki/G-string have been nominated before)
>
The only thing that I would feel confident in saying is that copyrights
and privacy rights are distinct legal concepts, and this has nothing to
do with copyrights.

If the child in the picture is Ethiopian, and the picture was taken in
Ethiopia what is the Ethiopian law on this? Is this a news picture?

Is someone alleging that the people are recognizable? Is it because of
the tatoos? Has the subject complained? The G-string pictures seem
posed to me with at least one instance describing the person as a
model. That seems to imply consent. Looks like the do-gooders are
running rampant on this.

>* Flag copyright - originality - again which laws to apply? (eg.
>http://mail.wikipedia.org/pipermail/commons-l/2006-June/000385.html ,
>is it true?)
>
There is nothing original about an exact copy of a flag.

Ec

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Gregory Maxwell wrote:

> As much of a problem as the above may be for us, it's not the worst of
> it: Simmlar cases to Bridgeman v. Corel have come up in the UK and
> the decision has been exactly the opposite.

They have? If so, could you point one out? So far, I know that people
have pointed to a statutory definition of photographs as artistic works
in their own right under UK law. But beyond that argument, which doesn't
seem to clearly settle the matter, I'm not aware of anything that
addresses the precise issue in Bridgeman v. Corel under UK law. Indeed,
the famous Bridgeman opinion was only issued after the court originally
decided the case based on its understanding of UK law (with the same
result), and was persuaded to reconsider and concluded that US law
applied, thus more clearly stating how this principle operates for US
law. Now a US court is certainly not the final word on UK law, but I'd
like to know more if there really is a conflicting decision out there.

--Michael Snow
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Oldak Quill wrote:

>On 21/07/06, Ray Saintonge <saintonge@telus.net> wrote:
>
>
>>If you're not a lawyer why are you pushing these legal interpretations?
>>
>>
>Because that's what we're all doing. I don't think my conservative
>interpretation of the law is dangerous in any way.
>
>
Nobody is saying that it's dangerous.

The frequency of these "IANAL" statements make me wonder about whether
people are too busy idolizing lawyers to believe in what they say.

Ec

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