Mailing List Archive

Copyright issues...walking on thin ice
I've been gone for several months, so bare with me if I am bringing up old news...
I recently came across a copyrighted image on wikipedia here: http://en.wikipedia.org/wiki/Image:TrangBang.jpg
Now, last I knew, our terms of use specifically prohibited uploading copyrighted material without the copyright holder’s permission. It appears some users think this should be allowed under fair use: http://en.wikipedia.org/wiki/Image_talk:TrangBang.jpg. I'm not to sure about that. In any case, I've put the image up for deletion here: http://en.wikipedia.org/wiki/Wikipedia:Votes_for_deletion/Image:TrangBang.jpg
Apparently this is not an isolated incident though. As User:172 said "This picture is one of hundreds posted on Wikipedia of similar fair use status." Also, I've found that fair use has crept its way into our copyright page: http://en.wikipedia.org/wiki/Wikipedia:Copyrights#Fair_use_materials_and_special_requirements
This does concern me considerably considering the legal status of such images seems to be unclear. You can also find more information here: http://en.wikipedia.org/wiki/Wikipedia:Fair_use

Again, I've been gone for quite a while. Has there been a consensus by the community that we should start using copyrighted material in wikipedia? Even if this is fair use, what's stopping the copyright holders from suing the wikimedia foundation, and incurring a great deal of legal fees? Also, how do we ensure that it is clear that these images are not reproducible under the GFDL? I think, that we are walking on thin ice when we start including copyrighted material in wikipedia. Does it really add enough to put the whole project at risk? Is the foundation willing to pursue lawsuits against them for violating copyright law? If we decide to indeed allow the upload of copyrighted material under "fair use" who determines that it is fair use? It's only going to get harder to make sure we aren't breaking the law once we open this door.

I think we have to ask ourselves a couple questions here:
1. Are we breaking copyright law?
2. Is it worth making wikipedia less free to include copyrighted material?
3. Is the wikimedia foundation willing to incur legal fees to fight cases against it for copyright violation

I for one don't think that the benefit we get from including copyrighted material balances the risks involved, or what we loose in freedom of use.

I could be way off base here, but this is just my 2 cents.

--
Michael Becker
Re: Copyright issues...walking on thin ice [ In reply to ]
On Sat, 7 Aug 2004 18:44:52 -0400, mbecker wrote:

> I've put the image up for deletion here:
> http://en.wikipedia.org/wiki/Wikipedia:Votes_for_deletion/Image:TrangBang.jpg

Votes for deletion has expanded since you were last here. There is now
[[Wikipedia:Images for deletion]] and [[Wikipedia:Copyright problems]]
(which is where copyright-violating images should go to be deleted).

> Apparently this is not an isolated incident though.

No, there are hundreds of them. See
http://en.wikipedia.org/wiki/Category:Fair_use_images

> Again, I've been gone for quite a while. Has there been a consensus by the community that we should start using copyrighted material in wikipedia?

There is not a complete consensus over whether we should allow fair use images.

> Even if this is fair use, what's stopping the copyright holders from suing the wikimedia foundation, and incurring a great deal of legal fees?

The legal risk lies with the user who uploaded it and claimed it was
fair use, not with the Foundation.

> Also, how do we ensure that it is clear that these images are not reproducible under the GFDL?

It is generally believed that fair use images are compatible with the
GFDL. See http://meta.wikimedia.org/wiki/Do_fair_use_images_violate_the_GFDL%3F

> Is the foundation willing to pursue lawsuits against them for violating copyright law?

If an image really is fair use, it is not violating copyright law.

> If we decide to indeed allow the upload of copyrighted material under "fair use" who determines that it is fair use?

The person who uploads the image should do that before they upload it.

> 1. Are we breaking copyright law?

If the images are fair use, then we are not.

> 2. Is it worth making wikipedia less free to include copyrighted material?

There is a lack of agreement over this. The German Wikipedia have a
policy which disallows fair use completely.

> 3. Is the wikimedia foundation willing to incur legal fees to fight cases against it for copyright violation

We are protected to some extent by the [[Online Copyright Infringement
Liability Limitation Act]]. We would take the images down if someone
sent a valid takedown notice, so presumably we would avoid legal risk
that way.

Angela.
Re: Copyright issues...walking on thin ice [ In reply to ]
Angela_ wrote:

>>Even if this is fair use, what's stopping the copyright holders from suing the wikimedia foundation, and incurring a great deal of legal fees?
>
> The legal risk lies with the user who uploaded it and claimed it was
> fair use, not with the Foundation.

That's interesting. This is the first time I hear this (but I haven't
followed the discussion very much, either). So what are you going to do
if the uploader is an anonymous IP address?

>>Is the foundation willing to pursue lawsuits against them for violating copyright law?
>
> If an image really is fair use, it is not violating copyright law.

At least not in the U.S.

> The German Wikipedia have a policy which disallows fair use completely.

Which is reasonable, seeing as most of the users of the German-language
content are going to be German, Swiss, Austrian or possibly
Luxembourgian, and those countries don't have a "fair use" law.

> We are protected to some extent by the [[Online Copyright Infringement
> Liability Limitation Act]]. We would take the images down if someone
> sent a valid takedown notice, so presumably we would avoid legal risk
> that way.

Again, this is interesting. I didn't know there was an extra Act for
this. This begs the question would other countries have a similar law.

Timwi
Re: Copyright issues...walking on thin ice [ In reply to ]
Someone will sue somewhere. Someone will win
somewhere. Either Wikimedia will say "we are an
American NPO - we exist under the American
(self-lauditory, self-preserving, self-centered)
protectionist system. Exactly how many nukes do *you
have?" If that somewhere is the USA, and free speech,
public good, and fair use are slapped down in the name
of tyrannical property and human puppetry, then WP
must go underground: Imagine a decentralized
peer-to-peer network that exchanges article edits, run
on light clients on any number of systems around the
world... Anyway, thats for later.

For now, the good that the project provides outweighs
almost any claim of "damages," and like Ray said,
(typed rather) judgements are made on a case by case
basis and are unsually limited to profits. Who poses a
danger? What philosophical grounds are they standing
on? What claim to property do they have that trancends
fair use? What would be the harm in a lost verdict?
Win-win all around, IMHO.

ReLaX.

S

--- mbecker <mbecker@jumpingjackweb.com> wrote:

> Again, I've been gone for quite a while. Has there
> been a consensus by the community that we should
> start using copyrighted material in wikipedia? Even
> if this is fair use, what's stopping the copyright
> holders from suing the wikimedia foundation, and
> incurring a great deal of legal fees?






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Re: Re: Copyright issues...walking on thin ice [ In reply to ]
Angela:
> > The legal risk lies with the user who uploaded it
> and claimed it was
> > fair use, not with the Foundation.

That may be the letter of the law interpretation, but
for "the foundation" to make a policy of deflecting
all such responsibility to its contributors, would
only bode well for any competing project that chose to
show a little more philosophical and legal backbone.
Pioneering projects need to be pioneering, not
capitulating or betraying to their own supporters,
especially if the mistakes are honest ones in the
realm of intel property. In any case, the inclusion of
material is a community decision, and so the
foundation as a facilitator for the violation, (by an
implied community decision) is legally responsible.
Does going apenuts with compliance paranoia to a
particular legal system comply with the larger goals
of being globally accessible and philosophically
equitable? I.D.T.S...

What exactly constitutes a "community 'decision'" when
anything can be changed anytime, is wobbly.

S

--- Timwi <timwi@gmx.net> wrote:
> Angela_ wrote:
>
> >>Even if this is fair use, what's stopping the
> copyright holders from suing the wikimedia
> foundation, and incurring a great deal of legal
> fees?
> >
> > The legal risk lies with the user who uploaded it
> and claimed it was
> > fair use, not with the Foundation.
>
> That's interesting. This is the first time I hear
> this (but I haven't
> followed the discussion very much, either). So what
> are you going to do
> if the uploader is an anonymous IP address?
>
> >>Is the foundation willing to pursue lawsuits
> against them for violating copyright law?
> >
> > If an image really is fair use, it is not
> violating copyright law.
>
> At least not in the U.S.
>
> > The German Wikipedia have a policy which disallows
> fair use completely.
>
> Which is reasonable, seeing as most of the users of
> the German-language
> content are going to be German, Swiss, Austrian or
> possibly
> Luxembourgian, and those countries don't have a
> "fair use" law.
>
> > We are protected to some extent by the [[Online
> Copyright Infringement
> > Liability Limitation Act]]. We would take the
> images down if someone
> > sent a valid takedown notice, so presumably we
> would avoid legal risk
> > that way.
>
> Again, this is interesting. I didn't know there was
> an extra Act for
> this. This begs the question would other countries
> have a similar law.
>
> Timwi
>
> _______________________________________________
> foundation-l mailing list
> foundation-l@wikimedia.org
>
http://mail.wikipedia.org/mailman/listinfo/foundation-l
>




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Re: Copyright issues...walking on thin ice [ In reply to ]
Angela_ wrote:

>On Sat, 7 Aug 2004 18:44:52 -0400, mbecker wrote:
>
>
>>Even if this is fair use, what's stopping the copyright holders from suing the wikimedia foundation, and incurring a great deal of legal fees?
>>
>>
>The legal risk lies with the user who uploaded it and claimed it was
>fair use, not with the Foundation.
>
Even if the Foundation would ultimately prevail on the merits, it's
still correct that the copyright holders can sue, and can force us to
incur serious legal fees. Also, the publisher can be liable for
copyright infringements, so I think it's inaccurate to suggest that
there's no legal risk to the Foundation. More correct is Angela's later
statement that OCILLA protects us to some extent.

And even then, the statement can only possibly be correct for online
publication. Print or DVD versions are an entirely different matter. For
those, we have no such protection, and the fact that some other party
(the original uploader) is also guilty of infringement helps the
Foundation not at all.

>>Also, how do we ensure that it is clear that these images are not reproducible under the GFDL?
>>
>>
>It is generally believed that fair use images are compatible with the
>GFDL. See http://meta.wikimedia.org/wiki/Do_fair_use_images_violate_the_GFDL%3F
>
This depends on how you look at the question. If you ask whether fair
use material can be mixed with GFDL material, that's one question. If
you ask whether fair use content can be licensed directly under the
GFDL, that's rather different. Apparently our official position is that
images are the former, but it's not one I'm very comfortable with.

>We are protected to some extent by the [[Online Copyright Infringement
>Liability Limitation Act]]. We would take the images down if someone
>sent a valid takedown notice, so presumably we would avoid legal risk
>that way.
>
I would say reduce rather than avoid, but maybe I'm being too technical.

--Michael Snow
Re: Re: Copyright issues...walking on thin ice [ In reply to ]
S.Vertigo wrote:

>Angela:
>
>
>>>The legal risk lies with the user who uploaded it and claimed it was
>>>
>>>
>>>fair use, not with the Foundation.
>>>
>>>
>
>That may be the letter of the law interpretation, but
>for "the foundation" to make a policy of deflecting
>all such responsibility to its contributors, would
>only bode well for any competing project that chose to
>show a little more philosophical and legal backbone.
>Pioneering projects need to be pioneering, not
>capitulating or betraying to their own supporters,
>especially if the mistakes are honest ones in the
>realm of intel property. In any case, the inclusion of
>material is a community decision, and so the
>foundation as a facilitator for the violation, (by an
>implied community decision) is legally responsible.
>Does going apenuts with compliance paranoia to a
>particular legal system comply with the larger goals
>of being globally accessible and philosophically
>equitable? I.D.T.S...
>
>What exactly constitutes a "community 'decision'" when
>anything can be changed anytime, is wobbly.
>
I too thought that the response was peculiar. Passing the buck onto
some naïve individual who may not understand copyright law at all evades
responsibility. The argument is even less tenable when we don't even
know the legal identity of the contributor.

Collective responsibility and collective courage are the head and tail
of the same coin. If you flip that coin and it consistently lands the
same way you have a biased coin. Collective responsibility means that
we stop people from uploading blatant copyright violations. With
collective courage we are able to give the contributor the benefit of
the doubt. We give him an opportunity to argue his case in the context
of copyright law, and if he makes a convincing case we accept his
material with eyes wide open. This does not mean that we won't review
our decision if it is seriously challenged by a duly interested party,
nor does it mean that we will goo to the wall with the decision
Sometimes we need to say, "This material may still be copyright, but
it's 30 years old, the publisher went bankrupt 25 years ago, and the
writer or photographer died 20 years ago without a family and without
mentioning copyrights in his will. Maybe we should take a chance."

Ec
Re: Re: Copyright issues...walking on thin ice [ In reply to ]
>> The legal risk lies with the user who uploaded it

I was basing this on the statement made in the Submission standards,
previously linked to from our terms of use.
http://en.wikipedia.org/w/wiki.phtml?title=Wikipedia:Submission_Standards&oldid=2470321#Your_indemnification_of_Wikipedia.


"Your indemnification of Wikipedia

In all cases if you submit anything you are responsible for the
submission, not Wikipedia. Should there be any legal consequences you
specifically agree that you indemnify and hold harmless Wikipedia,
Wikimedia Foundation Inc., Bomis Inc. their officers, directors or
agents, and the other volunteers of Wikipedia. Such indemnification
includes costs and reasonable attorneys fees; you indemnify these
entities and individuals from any claims, suits, causes of action in
law or equity, judgments, levies, fines, whatsoever from the time of
your first contribution to Wikipedia or any other Wikimedia project.
Any individual making a submission to Wikipedia will not benefit from
this indemnification vis-à-vis other contributors if their submissions
are in violation of these standards."


Angela.
Re: Re: Copyright issues...walking on thin ice [ In reply to ]
Michael Snow wrote:

> Angela_ wrote:
>
>>On Sat, 7 Aug 2004 18:44:52 -0400, mbecker wrote:
>>
>>
>>>Even if this is fair use, what's stopping the copyright holders from suing the wikimedia foundation, and incurring a great deal of legal fees?
>>>
>>>
>>The legal risk lies with the user who uploaded it and claimed it was
>>fair use, not with the Foundation.
>>
> Even if the Foundation would ultimately prevail on the merits, it's
> still correct that the copyright holders can sue, and can force us to
> incur serious legal fees. Also, the publisher can be liable for
> copyright infringements, so I think it's inaccurate to suggest that
> there's no legal risk to the Foundation. More correct is Angela's
> later statement that OCILLA protects us to some extent.

May I add that - as English is spoken also in many other countries where
there are no fair use regulations in copyright law - the copyright
holder can - in principle - sue the individual publisher there as the
online edition of wikipedia is offered and used internationally. Also
the foundation could be sued in other countries as the foundation
already knows about fair use images being published worldwide including
countries where the fair use principles are not supported by law or
jurisdiction. There might however be some protection for the foundation
being located in the US, but not in principle, it only makes it more
difficult for the copyright holder. In case the foundation did not know
about possible copyright violations of an image put online by an
individual publisher it cannot be sued for the mistake by others. But
since the foundation knows that there many pictures are neither public
domain nor published under open content license such jurisdiction would
not apply in the case of pictures under fair use US regulations on
courts of countries without fair use legislation.

As cameras are around today nearly everywhere and it is easy for
everybody to make photos and there is also much open content or public
domain material around - I personally think that it would not harm the
success of Wikipedia in any way when fair use images are no more
included. The growth rate of the number of images published on Wikipedia
is about 25% a month - much larger then the growth rate of articles.

Dietrich
Re: Re: Copyright issues...walking on thin ice [ In reply to ]
--- Ray Saintonge <saintonge@telus.net> wrote:
> I too thought that the response was peculiar.
> Passing the buck onto
> some naïve individual who may not understand
> copyright law at all evades
> responsibility.

Its understandable. Official positions not only must
remain uncolored, but also moderately defensive of the
institution. Any offical doctrine is going to draw a
sharp and non-intuitive line, unless dealing with
specific cases. Language is just codewords, and
paradoxically enough, private discussion can be more
open.

> Sometimes we need to say, "This material may still
> be copyright, but
> it's 30 years old, the publisher went bankrupt 25
> years ago, and the
> writer or photographer died 20 years ago without a
> family and without
> mentioning copyrights in his will. Maybe we should
> take a chance."

I dont think that its remotely this conditional. Alex
made it clear that it's all pretty unclear as to how a
case could come down. The most touchy aspects are all
very general and current issues for law, not at all
particular to WP. To stick-neck-out or
not-stick-neck-out; that is the question. And this is
in degrees: the *degree of caution expressed (in
direct proportion to the number of nuts invested)
versus the degree to which such caution is
{{{understood}}} to stifle the goal of development.
The balanced and cautious community decision led to
the well understood and vigilant requirement for
attribution. This is good enough IMNSHO.

S






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Re: Re: Copyright issues...walking on thin ice [ In reply to ]
--- Dietrich von Hase <hase@akademie.de> wrote:
> ....
> As cameras are around today nearly everywhere and it is easy for
> everybody to make photos and there is also much open content or public
> domain material around - I personally think that it would not harm the
> success of Wikipedia in any way when fair use images are no more
> included. The growth rate of the number of images published on Wikipedia
> is about 25% a month - much larger then the growth rate of articles.

Until time machines are created so that the cameras you talk about could be
used to snap photos of people now dead, events now past, and places now gone,
we will continue to need to use low resolution versions of these images.

However, you do correctly note that we should not depend on the fair use
doctrine in the U.S. We should instead work with more international doctrines
such as fair dealing (which covers much of the English Speaking world and is a
bit more restrictive than fair use and thus will be fine in the U.S. as well).
But this would be much less useful for non-English wikis (each language wiki
should develop its own policy on this).

-- mav



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Re: Re: Copyright issues...walking on thin ice [ In reply to ]
Daniel Mayer wrote:

>However, you do correctly note that we should not depend on the fair use
>doctrine in the U.S. We should instead work with more international doctrines
>such as fair dealing (which covers much of the English Speaking world and is a
>bit more restrictive than fair use and thus will be fine in the U.S. as well).
>But this would be much less useful for non-English wikis (each language wiki
>should develop its own policy on this).
>
>
There is also something like fair dealing in the Berne Convention. The
exact term escapes me for now. The general rule is that this would be
brought into a country's law when it ratifies the Treaty.

Ec
Re: Re: Copyright issues...walking on thin ice [ In reply to ]
Daniel Mayer wrote:

>--- Dietrich von Hase <hase@akademie.de> wrote:
>
>
>>....
>>As cameras are around today nearly everywhere and it is easy for
>>everybody to make photos and there is also much open content or public
>>domain material around - I personally think that it would not harm the
>>success of Wikipedia in any way when fair use images are no more
>>included. The growth rate of the number of images published on Wikipedia
>>is about 25% a month - much larger then the growth rate of articles.
>>
>>
>
>Until time machines are created so that the cameras you talk about could be
>used to snap photos of people now dead, events now past, and places now gone,
>we will continue to need to use low resolution versions of these images.
>
>
You are completely right, sorry, I forgot this aspect of possible topics
and it will still take some time until time machines get public
utilities for all Wikipedians ;-).

Nevertheless there is a vast number of images in public domain for these
times either because copyright has already run out or because it is
public domain material anyhow for time periods where at present the
usual copyright period exists for copyrighted material.

It would be interesting to know whether Wikimedia ever really had to
deal with a copyright violation legal case regarding pictures published
or individuals publishing images in Wikipedia under fair use. If it is
really more a theoretical then a practical question to deal with today -
then it may be better to wait until a real case happens.The potential
financial damage could not be overwhelming if its only one picture which
is under discussion.

Dietrich


>
>
Re: Re: Copyright issues...walking on thin ice [ In reply to ]
Dietrich von Hase wrote:
> It would be interesting to know whether Wikimedia ever really had to
> deal with a copyright violation legal case regarding pictures published
> or individuals publishing images in Wikipedia under fair use. If it is
> really more a theoretical then a practical question to deal with today -
> then it may be better to wait until a real case happens.The potential
> financial damage could not be overwhelming if its only one picture which
> is under discussion.

No, we have never had to deal with any sort of legal case, copyright
or otherwise.

We have also never gotten a proper DMCA takedown notice, but of course
our strict anti-plagiarism policy means that we act promptly on any
sort of complaint, whether it complies with DMCA or not.

My own view on fair use/fair dealing is as follows:

1. Fair use/fair dealing is a morally proper doctrine under any sane
system of copyright. We should not hesitate to make proper use of it,
in all media.

2. At the same time, we need not "push the boundaries of law" on this
-- we can and should be conservative about our own legal exposure.

3. We also need to be sensitive to the needs of reusers in multiple
jurisdictions. This also suggests that we should be conservative for
their benefit. At a bare minimum, this means we need to have good
tagging and source documentation -- something that we do very poorly
at the moment.

4. We should be careful that laziness does not lead us to rely on "fair
use" when a freely licensed (self-produce, for example) alternative is
readily available. This applies to many ordinary photographs of many
famous objects, and even some famous people.

5. There are some pictures which are absolutely of historical and
scientific value which there is simply no practical alternative to
fair use/fair dealing, *and* for which fair use/fair dealing are
perfectly appropriate. We should be glad to use such materials.

--Jimbo
Re: Re: Copyright issues...walking on thin ice [ In reply to ]
On Tue, 10 Aug 2004 06:10:38 -0700 "Jimmy (Jimbo) Wales" <jwales@wikia.com>
wrote:

>1. Fair use/fair dealing is a morally proper doctrine under any sane
>system of copyright. We should not hesitate to make proper use of it,
>in all media.

The real problem is not with putting them into Wikipedia, but with putting
them under the GNU/FDL license. Putting pictures into Wikipedia under fair
use will be okay if not done too extensively, provided we use relatively
low-resolution and specify the maker. But Wikipedia is not just a webpage,
it is a document under the GNU/FDL. Which means people may make derived
works and publish those. What if someone takes a Wikipedia page, and makes a
derived work from it by removing all but the copyrighted picture, then
publishes that under the GNU/FDL. We are currently permitting them to do so.
But we can't.

Andre Engels
Re: Re: Copyright issues...walking on thin ice [ In reply to ]
Andre Engels wrote:
> The real problem is not with putting them into Wikipedia, but with putting
> them under the GNU/FDL license. Putting pictures into Wikipedia under fair
> use will be okay if not done too extensively, provided we use relatively
> low-resolution and specify the maker. But Wikipedia is not just a webpage,
> it is a document under the GNU/FDL. Which means people may make derived
> works and publish those. What if someone takes a Wikipedia page, and makes
> a derived work from it by removing all but the copyrighted picture, then
> publishes that under the GNU/FDL. We are currently permitting them to do
> so. But we can't.

This is a common misperception, and one that I want to combat every
chance that I get. It is perfectly fine to aggregate independent
works under clause 7 of the GNU FDL. The sort of aggregation that is
contemplated by the license is *precisely* of the sort that we do.

I have a very high comfort level on this point. There are certain
ways in which some fair use images will be problematic. But the idea
that if a page is GNU FDL, it may not be aggregated with independent
works that aren't also under the GNU FDL is simply wrong.

It would be perfectly fine *under the terms of the license* for us to
put any sort of image in an article, for example, images that are
licensed solely to us, or images that the Foundation itself owns
(works for hire, say) and simply publishes under default copyright.

I have asked this question of prominent and knowledgeable people, and
they have assured me that there is no conflict between GNU FDL and
fair use. (They actually treated my question with some amusement.)

--Jimbo
Re: Copyright issues...walking on thin ice [ In reply to ]
Ray Saintonge wrote:

> There is also something like fair dealing in the Berne Convention.
> The exact term escapes me for now.

Fair practice.

--Michael Snow
Re: Copyright issues...walking on thin ice [ In reply to ]
Jimmy (Jimbo) Wales wrote:

>Andre Engels wrote:
>
>
>>The real problem is not with putting them into Wikipedia, but with putting
>>them under the GNU/FDL license. Putting pictures into Wikipedia under fair
>>use will be okay if not done too extensively, provided we use relatively
>>low-resolution and specify the maker. But Wikipedia is not just a webpage,
>>it is a document under the GNU/FDL. Which means people may make derived
>>works and publish those. What if someone takes a Wikipedia page, and makes
>>a derived work from it by removing all but the copyrighted picture, then
>>publishes that under the GNU/FDL. We are currently permitting them to do
>>so. But we can't.
>>
>>
>
>This is a common misperception, and one that I want to combat every
>chance that I get. It is perfectly fine to aggregate independent
>works under clause 7 of the GNU FDL. The sort of aggregation that is
>contemplated by the license is *precisely* of the sort that we do.
>
>I have a very high comfort level on this point. There are certain
>ways in which some fair use images will be problematic. But the idea
>that if a page is GNU FDL, it may not be aggregated with independent
>works that aren't also under the GNU FDL is simply wrong.
>
>It would be perfectly fine *under the terms of the license* for us to
>put any sort of image in an article, for example, images that are
>licensed solely to us, or images that the Foundation itself owns
>(works for hire, say) and simply publishes under default copyright.
>
>I have asked this question of prominent and knowledgeable people, and
>they have assured me that there is no conflict between GNU FDL and
>fair use. (They actually treated my question with some amusement.)
>
>--Jimbo
>
Clause 7 of the GFDL is predicated on aggregating the GFDL content with
"separate and independent documents or works". Are images actually
separate and independent?

As files in the Image namespace, it's easy enough to say images are
separate and independent works from articles. But once the image is used
in an article, it gets fuzzier. When I view an article with an image,
the image shows up there with the rest of the article, and looks to the
reader like it is part of the article. It does not look very "separate
and independent", nor does the image give any indication that it may be
under a different license than the GFDL. You may point out that in wiki
syntax, the image is actually linked to rather than being incorporated
directly into the article, but that argument does not instill much
confidence in me. The law has been known to disregard such attempts at
technical distinctions and look at things from the simpler practical
perspective.

But online content is not that big of an issue really, because anyone
who says we're infringing on their copyright has to give us a takedown
notice first, and we can remove the offending image. The real problem is
print. And once you get to print, I have a _very_ hard time buying any
argument that the image which illustrates an article is somehow a
separate and independent work from the article text. The one kind of
print version for which I might entertain this argument is if the images
are segregated as is done in many books, on separate glossier facing
pages or in a batch of illustrations in the middle of the book. But in
the routine print version, where the image is printed out on the same
page as the article, they look like part of one document and I don't see
how you can make much of a case that they're not. As a result, I think
the article as a whole, _including_ associated images, is the smallest
Document to which we can legitimately atomize the GFDL.

--Michael Snow
Re: Re: Copyright issues...walking on thin ice [ In reply to ]
On Tue, 10 Aug 2004 11:36:53 -0700 "Jimmy (Jimbo) Wales" <jwales@wikia.com>
wrote:

>This is a common misperception, and one that I want to combat every
>chance that I get. It is perfectly fine to aggregate independent
>works under clause 7 of the GNU FDL. The sort of aggregation that is
>contemplated by the license is *precisely* of the sort that we do.

I disagree. The pictures and the text are not 'separate and independent
documents', but have been combined into a single document by placing them on
a single page in a single lay-out. Clause 7 in my opinion is meant for
*separate* documents put into a single binding, on a single page, etcetera,
not for *combining* documents into a single one. Distributing the pictures
with the text would be clause 7. But we're not. We're embedding the pictures
*in* the document, which makes it a modified document as per clause 4 (or a
combined document if the picture itself is GNU FDL).

>It would be perfectly fine *under the terms of the license* for us to
>put any sort of image in an article, for example, images that are
>licensed solely to us, or images that the Foundation itself owns
>(works for hire, say) and simply publishes under default copyright.

I think this is a self-destructive interpretation of the license. Because if
I can include a picture in this way, then why not text? That would make the
by some lauded 'viral' aspect of the license just a dead letter - I can just
use parts of a Wikipedia article, specify which they are and keep those
under GNU/FDL, then incorporate them into my own copyright work.

Andre Engels
Re: Re: Copyright issues...walking on thin ice [ In reply to ]
Michael Snow wrote in part:

>Jimmy (Jimbo) Wales wrote:

>>It is perfectly fine to aggregate independent
>>works under clause 7 of the GNU FDL.

>Clause 7 of the GFDL is predicated on aggregating the GFDL content with
>"separate and independent documents or works". Are images actually
>separate and independent?

Yes they are, as I will show.

>As files in the Image namespace, it's easy enough to say images are
>separate and independent works from articles. But once the image is used
>in an article, it gets fuzzier. When I view an article with an image,
>the image shows up there with the rest of the article, and looks to the
>reader like it is part of the article. It does not look very "separate
>and independent", nor does the image give any indication that it may be
>under a different license than the GFDL. You may point out that in wiki
>syntax, the image is actually linked to rather than being incorporated
>directly into the article, but that argument does not instill much
>confidence in me. The law has been known to disregard such attempts at
>technical distinctions and look at things from the simpler practical
>perspective.

The law shouldn't pay attention to wiki syntax' that's quite irrelevant.
You don't download wiki syntax (unless you click on "Edit this page");
rather, you download the entire web page that the server presents to you.

So am I agreeing with you? No! Because the Wikimedia server does *not*
present to you a web page that combines text material with an image!
Look at the HTML (*that* is relevant, because *that* is what you download);
you'll see that the HTML source (arguably a single document in the FDL)
contains the text, but not the image. The image is only referenced,
with something like "<IMG src = "foo" alt = "bar" title = "baz" />".
The file <foo> contains the image, which is downloaded separately.

It's not Wikimedia's fault if your silly web browser confuses the issue,
making you think that the text and the image comprise a single document.
If you used a sensible web browser, like lynx ^_^, then it would be clear.

To be sure, since we have a reasonable expectation that most browsers
present content in a way that is liable to cause this very confusion,
we ought to take steps to avoid this sort of confusion. And we do!
We say "All text is available under the terms of the GNU Free
Documentation License" -- note the phrase "all text", not "all content" --
and then we give a link to [[Wikipedia:Copyrights]], which explains things
in more detail (especially in section 1.2, at least on [[w:en:]]).
Even you, although not convinced about the aggregate nature of the page,
knew that something was up -- because you followed that link.

>But online content is not that big of an issue really, because anyone
>who says we're infringing on their copyright has to give us a takedown
>notice first, and we can remove the offending image. The real problem is
>print. And once you get to print, I have a _very_ hard time buying any
>argument that the image which illustrates an article is somehow a
>separate and independent work from the article text. The one kind of
>print version for which I might entertain this argument is if the images
>are segregated as is done in many books, on separate glossier facing
>pages or in a batch of illustrations in the middle of the book. But in
>the routine print version, where the image is printed out on the same
>page as the article, they look like part of one document and I don't see
>how you can make much of a case that they're not. As a result, I think
>the article as a whole, _including_ associated images, is the smallest
>Document to which we can legitimately atomize the GFDL.

I think that you have a good point about the paper version.
When a paper version is printed, we will have to take more care.
Even so, we'll probably want to treat images as separate documents;
but we'll need to take additional steps to make this clear to the reader.
That's because printed paper intermingles text with images
in a way that HTML (our only current publishing method) does not.

Offhand, I would suggest printing a notice of copyright information
along the side of each image that appears in the paper version,
similar to (but more detailed than) the photo credits in magazines.
The FDL notice for the article would again have to specify text only.
But we can (and should!) think about this matter more carefully
when we start producing printed versions.


-- Toby
Re: Re: Copyright issues...walking on thin ice [ In reply to ]
Andre Engels wrote in part:

>Jimmy (Jimbo) Wales wrote:

>>It would be perfectly fine *under the terms of the license* for us to
>>put any sort of image in an article, for example, images that are
>>licensed solely to us, or images that the Foundation itself owns
>>(works for hire, say) and simply publishes under default copyright.

>I think this is a self-destructive interpretation of the license. Because
>if I can include a picture in this way, then why not text? That would make
>the by some lauded 'viral' aspect of the license just a dead letter - I can
>just use parts of a Wikipedia article, specify which they are and keep
>those under GNU/FDL, then incorporate them into my own copyright work.

This is fine (both legally IMO but IANAL, and ethically IMO but IANRMS),
as long as you keep the Wikipedia parts clearly separate from your material
(and also include the FDL notice for the Wikipedia excerpts, of course).
What you can't do under this scheme is to intermingle the article excerpts
with your own words -- without placing your own words under the licence.

For example, you can say something like this:

I like carrots. Carrots are yummy. I saw a carrot on TV once.
This rabbit ate a carrot and called this bald man a doctor,
even though he wasn't a doctor but really a hunter instead.
That rabbit is so funny!!!

Here are more interesting facts about carrots:

Carrots are often eaten raw, whole or shaved into salads for
color, and are often cooked in soups and stews. One can also
make carrot cake. The greens are not generally eaten in most
cultures, but are edible.

Together with onion and celery, carrots are one of the primary
vegetables used in a mirepoix to make various broths. Beta
carotene or Vitamin A, which gives this vegetable its
characteristic orange colour, is thought to enhance the performance of
receptors on the retina and thus improve eyesight. Carrots are also
rich in dietary fibre, antioxidants, and minerals and are an
alkaline food.

Retrieved from "http://en.wikipedia.org/wiki/Carrot",
available under version 1.2 of the GNU FDL.

I got these facts from this weird site on the Internet which is free.
Those guys must be crazy; I'm sure not going to make MY stuff free!
My text is copyright 2004 by Toby Bartels, all rights reserved.
Take that suckaz!!!

Now, this example doesn't really comply with the FDL,
because just saying "available under version 1.2 of the GNU FDL"
is not enough; you need to quote the entire licence somewhere
(and I'm not even going to touch the list-five-authors business).
But even with this (rather gross legally) deficiency,
the example is still harmless to the licence's viral nature.

Or try it the other way:

Carrots are often eaten raw, whole or shaved into salads for
color, and are often cooked in soups and stews. One can also
make carrot cake. The greens are not generally eaten in most
cultures, but are edible.

I like carrots. Carrots are yummy. I saw a carrot on TV once.
This rabbit ate a carrot and called this bald man a doctor,
even though he wasn't a doctor but really a hunter instead.
That rabbit is so funny!!!

This indented text is copyright 2004 by Toby Bartels,
all rights reserved. Take that suckaz!!!

Together with onion and celery, carrots are one of the primary
vegetables used in a mirepoix to make various broths. Beta
carotene or Vitamin A, which gives this vegetable its
characteristic orange colour, is thought to enhance the performance of
receptors on the retina and thus improve eyesight. Carrots are also
rich in dietary fibre, antioxidants, and minerals and are an
alkaline food.

Retrieved from "http://en.wikipedia.org/wiki/Carrot",
available under version 1.2 of the GNU FDL.

Again far short of the requirements of the FDL (as interpreted by Jimbo)
but still harmless.

On the other hand, suppose you intermingle the text:

Carrots are often eaten raw, especially by funny rabbits on TV,
and are often cooked in soups and stews, the method preferred
by bald hunters.

Copyright 2004 by Toby Bartels, available under version 1.2 of the GNU FDL.

In this example (which also falls short of the full requirements),
I have no choice but to put the whole thing under the GNU FDL.
Any failure in this respect will incur a serious violation of the licence --
even as Jimbo interprets it.


-- Toby


PS: Despite what I may have written above for illustrative purposes,
I /actually/ reserve no legal rights whatsoever to any of this post,
just as I reserve no legal rights whatsoever to any of my creative work.
Re: Re: Copyright issues...walking on thin ice [ In reply to ]
Hi,

Le Wednesday 11 August 2004 08:49, Michael Snow a écrit :

(...)
> But online content is not that big of an issue really, because anyone
> who says we're infringing on their copyright has to give us a takedown
> notice first, and we can remove the offending image. The real problem is
> print. And once you get to print, I have a _very_ hard time buying any
> argument that the image which illustrates an article is somehow a
> separate and independent work from the article text. The one kind of
> print version for which I might entertain this argument is if the images
> are segregated as is done in many books, on separate glossier facing
> pages or in a batch of illustrations in the middle of the book. But in
> the routine print version, where the image is printed out on the same
> page as the article, they look like part of one document and I don't see
> how you can make much of a case that they're not. As a result, I think
> the article as a whole, _including_ associated images, is the smallest
> Document to which we can legitimately atomize the GFDL.

I would agree with you on the interpretation of the GFDL, but I think that the
online and paper projects have to be treated differently.
Some people even say that the WMF should never publish a paper edition on its
own, and they may have some good points, but IANAL.

Anyway, I think it's the responsibility of the publisher of the paper edition
to remove fair use images. So it is important that images are clearly tagged,
so they can be easily removed with a simple SQL query.

And I can imagine another scenario where an organisation could buy the rights
of copyrighted images to include them in a paper edition. But I can't say if
this would be valid under the GFDL.

> --Michael Snow

Yann

--
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Re: Re: Copyright issues...walking on thin ice [ In reply to ]
Michael Snow wrote:
> Clause 7 of the GFDL is predicated on aggregating the GFDL content with
> "separate and independent documents or works". Are images actually
> separate and independent?

Except in some hypothetical cases which are hard to even dream up, I
would say yes, absolutely. The authorship of the image is different,
the process by which the image is authored is completely different, it
is stored in a separate file "in or on a volume of a storage or
distribution medium", etc. It is hard to see how the image is somehow
a "derivative work" of the article or vice-versa. They are simply a
compilation.

> It does not look very "separate and independent", nor does the image
> give any indication that it may be under a different license than
> the GFDL.

In order to make things more clear, it seems likely to me that some
indication of licensing status of images could be displayed as part of
the caption.

> And once you get to print, I have a _very_ hard time buying any
> argument that the image which illustrates an article is somehow a
> separate and independent work from the article text.

Can you point me to any case law on this point? Law review articles?

Consider the implications of your argument for traditional licensing
of images for book publications.

Imagine the following scenario. I write a book, under traditional
copyright. For my book, I license some images from you, under a
traditional licensing scheme for such, i.e. you tell me that I can use
the images for my book, only for my book, and for no other purposes.

After the book has been published, I decide that I want to license a
portion of the text to a magazine. Can you then object, saying that
the text is now a "derived work" of the photograph? That the two are
no longer separate and independent?

I don't see how that could be so.

Now, clearly, I can't exceed the bounds of my license from you by
telling the magazine that they can use the photos. But this is one of
the key reasons why the license includes Clause 7, to make it
abundantly clear that compilations of this sort *are* permitted.

--Jimbo
Re: Re: Copyright issues...walking on thin ice [ In reply to ]
Andre Engels wrote:
> I think this is a self-destructive interpretation of the license. Because
> if I can include a picture in this way, then why not text?

If you put some text in a sidebar box, and the text were loaded from a
different file on disk, then it would be the same thing, and it would
be completely approved by the license.

With images, the separate authorship and the independence of the work
is transparently obvious. The text is not derived from the image, nor
is the image derived from the text. No one modifies GNU FDL text and
turns it into an image, or vice-versa. (Barring hypothetical edge
cases that are beyond the scope of this discussion.)

With text, there could be borderline cases. But it seems clear to me
that so long as the two documents are kept separate in some fashion,
and are not derived from each other, there would be no problem.

Suppose someone takes a GNU FDL article and includes it as a chapter
in an otherwise proprietary book? The license says this is fine, and
I think we all agree about that. Suppose the GNU FDL text and the
proprietary text are placed side-by-side on a page, with clear
delineation via a "sidebar box". Would you say that *this* is a
license violation? That it's o.k. to put the text on two separate
poages, but not o.k. to put it on the same page?

That seems a very strained interpretation of the license.

--Jimbo
Re: Re: Copyright issues...walking on thin ice [ In reply to ]
Toby Bartels wrote:
> This is fine (both legally IMO but IANAL, and ethically IMO but IANRMS),
> as long as you keep the Wikipedia parts clearly separate from your material
> (and also include the FDL notice for the Wikipedia excerpts, of course).
> What you can't do under this scheme is to intermingle the article excerpts
> with your own words -- without placing your own words under the licence.

I think this is exactly right. With text, what constitutes keeping
things "clearly separate" may have a large grey area. With images, it
is much simpler.

--Jimbo

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