Mailing List Archive

On Sunday 01 June 2003 23:32, Hr. Daniel Mikkelsen wrote:
> On Sun, 1 Jun 2003, Marco Krohn wrote:
> >> I think they are compatible if they are separately licensed.
> >
> > O.k. but then we have to make this very clear that the GFDL applies _not_
> > to all the content we provide.
>
> Isn't this already too late? You can only dual license copyleft material if
> all copyright holders agree to it. The people who have posted stuff so far
> on Wikipedia have posted it under GFDL exclusively.
>
> If we want to combine different licenses, we have to track down all
> contributers for each relevant article, and get their permisson. Otherwise,
> we're breaking GFDL.

These are good questions.

I see it the same way as you do, but Erik claims (at least for images) that
these are different pages with a different license that are added together by
the server and by that we don't violate the GFDL. So he basically says that
he found a loophole in the GFDL which allows mixing free / non-free content.

best regards,
Marco

--
Marco Krohn
Theoretical Physics
University of Hannover

On Sun, 1 Jun 2003, Ray Saintonge wrote:

>> Isn't this already too late? You can only dual license copyleft material if all
>> copyright holders agree to it. The people who have posted stuff so far on
>> Wikipedia have posted it under GFDL exclusively.

> I'm sure that most of them have never given any serious attention to the
> licence details.

I can't believe I'm hearing this. I don't know what to say.

I remember reading about how we're going to one day plug all history back into
all articles, from the earlier software phases, because if we didn't we would
be violating the license terms set by our contributers (GFDL).

And now we're just going to brush it all aside? I'm outraged.

>> If we want to combine different licenses, we have to track down all
>> contributers for each relevant article, and get their permisson. Otherwise,
>> we're breaking GFDL.

> Wouldn't that be just a little unrealistic? A more common sense
> solution would be better.

Yes, this is unrealistic. This is why I said that it is probably too late to
begin dual licensing Wikipedia content (except in the case of new articles).

The more common sense solution (in that it is a realistic endeavour) is of
course to remove all quotes. Frankly, there aren't that many there to begin
with.

-- Daniel

On Monday 02 June 2003 00:48, Ray Saintonge wrote:
> Hr. Daniel Mikkelsen wrote:
> >Isn't this already too late? You can only dual license copyleft material
> > if all copyright holders agree to it. The people who have posted stuff so
> > far on Wikipedia have posted it under GFDL exclusively.
>
> I'm sure that most of them have never given any serious attention to the
> licence details.

Which doesn't make it better. If you want to relicense content you have to
have permission of all copyright holders, this is what the license says.
Sorry, but there is no way around it.

> >If we want to combine different licenses, we have to track down all
> >contributers for each relevant article, and get their permisson.
> > Otherwise, we're breaking GFDL.
>
> Wouldn't that be just a little unrealistic?

Yes indeed, this is far from being possible. There are only very few projects
which went through all struggle in order to achieve a relicense, the biggest
I am aware of was (related to?) the Mozilla project. For a project of the
size of Wikipedia this simply won't work.

> A more common sense solution would be better.

The "common sense" solution is to remove all content which makes license
problems and this is all "fair use" stuff. If we don't remove this stuff we
will again and again have license problems. Believe me, I have watched the
[[KDE]] project for a long time and I am very well aware of years of license
problems & battles and I really don't want to see the same mess here again.

If we have a license we have to take this seriously. We can't simply say "mmh,
I don'l like the consequences, let's forget about the license". Sorry.

best regards,
Marco


--
Marco Krohn
Theoretical Physics
University of Hannover

Marco-
> Sorry, but I trust a lawyer opinion more than non-lawyer statements and if
> you don't seem to trust the FSF then I ask myself why the GFDL was choosen?

I didn't choose the FDL, and I wouldn't. If it wasn't so hard to change
licenses, we might have already switched to Creative Commons style
copyleft or something similar. I am increasingly coming to the conclusion
that the FDL is unsuitable for online publications. Even the Debian
project rejects it. For my own textual projects, I use the public domain.
The GNU project should stick to software licenses.

Sadly, because of Wikipedia, the FDL will continue to enjoy popularity
because people will choose it for their projects in order to be compatible
with us.

> [...]
>> I say I am
>> disappointed if the last little freedom that copyright law grants us is
>> taken away not by the content industry, but by overzealous, paranoid
>> Wikipedians. What's next? DRM to protect our content against FDL
>> violations?

> Erik, I have the highest respect for you and your work, but this is below
> your standard. Please, I try to understand your point of view and I expect
> the same from you. Even if you might not believe it - we all here want the
> best for the Wikipedia project and we all want to keep "evil" away from
> Wikipedia. Thanks.

I stand by my words. *Limiting* or *modifying* fair use is debatable.
Eliminating it entirely is not. It would be completely paranoid. I think
Mr. Wegrzanowski's recent comments illustrate the connection quite well.
And from that paranoia, it is only a small step to wanting the security of
additional "enforcement". The GNU project with its cult-like ideology and
its constant threats against supposed GPL violators reminds me a lot of
those who *defend* "intellectual property". I'm not opposed to copyleft
per se, but the danger of using copyright against copyright is the same as
when playing with fire -- you might start to like it.

>> This is impossible without quoting.

> Sorry, wrong conclusion. You can always rephrase sentences.

Sure, you can always rephrase sentences. But information and emotion tends
to get lost on the way. You are no longer saying what a person said, you
are saying how you understood that person.

"I have a dream."
Martin Luther King said that he "had a dream".
King emphasized that he had a dream.
In the middle of his speech, King remarked that he had a dream.
King spoke of a dream he had.
It was a dream, King said, that motivated him ..
It must have been at some point in his sleep that the idea came to
him ..
King claimed, without presenting evidence, to have a "dream".
With tears in his voice and his hands shaking, King spoke
valiantly of the dream he had ..

Citations become interpretations. That is acceptable in some contexts,
especially where purely factual information is concerned. But as a
standard for the whole project, it is unprofessional and non-encyclopedic.

> It is not
> neccessary to use quotes if you want to document human knowledge.

It is necessary if you want to create an encyclopedia.

>> It is impossible without fair use. An encyclopedia that cannot cite
>> directly what others say is not an encyclopedia.

> Well, based on a wrong conclusion the statement does not get more true. You
> either define that an encyclopedia by saying that it includes citations
> (than your statement is trivial) or you say that an encyclopedia documents
> human knowledge, then your statement is wrong.

An encyclopedia documents human knowledge as precisely and accurately as
possible. By having a requirement to paraphrase all quotes you lose the
ability to do this. I can't believe we're even discussing this. This must
be some joke that I fail to understand.

> I am very well aware of the fact that "free" depends on the definiton of the
> term "free". The Wikipedia FAQ claims that Wikipedia is free in this very
> definition:

<snip>

My point is this: If you think that Wikipedia is no longer a "free"
encyclopedia because there's some fair use content in there, then you're
using an "ideologically pure" definition of free that is not identical to
mine, and not identical to the current policy on the English Wikipedia.

I have already explained to you in detail why fair use is compatible with
the FDL when properly separated. All that remains to be done is to modify
the software in accordance with our discussion, and to clarify some policy
pages. We may have to build the transclusion feature I mentioned, although
I personally don't care enough to do so. "Intellectual property" does not
exist, after all.

Regards,

Erik

Am Mon, 2003-06-02 um 01.09 schrieb Marco Krohn:
> I see it the same way as you do, but Erik claims (at least for images) that
> these are different pages with a different license that are added together by
> the server and by that we don't violate the GFDL. So he basically says that
> he found a loophole in the GFDL which allows mixing free / non-free content.

Like 99% of the people here, I am not lawyer, but here is my
opinion - how I interpret GFDL, how I think the spirit of GFDL is:

IMHO articles should be seen as one work, and therefore it is
100% GFDL, or it violates the GFDL.

Personally, I would not like to see "my" work being combined with
non-free content.

Another thing:
Until now, I did not notice that the English Wikipedia says "This text
is available ...", while the German Wikipedia says "Diese Seite..."
("This page ...") "... is available under the terms of the GNU FDL".

I also do think that this discussion belongs to another mailing list,
wikipedia-l, and therefore cross-posted this message (sorry if I offend
someone by this, but I think it is not fair to the Wikipedia users
that general, important issues are discussed in a place where the
subject is normally just software development ...)

Best regards,
Zeno Gantner

[.Note: This is posted to both <wikitech-l> and <wikipedia-l>
to preserve continuity; replies should go to <wikipedia-l>.]

Eclecticology wrote in part:

>I don't see where we have had problems
>with the copyright holders themselves. It would be easy to agree to
>remove this material if the request came from the copyright holder
>himself. The pressure so far seems to be coming from people who imagine
>that something is copyright.

>My inclination would be to use borderline material, with an appropriate
>warning that we will happily remove on request from a properly
>identified owner.

This is a big difference between images and text.
Our text is not only distributed -- it's modified in many ways.
A copyright problem there can infect many articles later on.
With images, we don't have nearly this sort of practical problem.

But we still need to clearly separate out the non-free images
to aid later distributors, try not to rely on them for content,
and replace them with free images when possible.


-- Toby

[.Note: This is posted to both <wikitech-l> and <wikipedia-l>
to preserve continuity; replies should go to <wikipedia-l>.]

Tomasz Wegrzanowski wrote:

>Eclecticology wrote:

>>How others use the material is their problem, and their risk. We
>>shouldn't have to baby-sit them. Whatever license or copyrights are
>>applied to Wikipedia reflects a collective comfort level. The user is
>>still responsible for his own due-dilligence, no matter how conservative
>>we are on the matter.

>They're not "others", lot of "them" are Wikipedians.
>If everyone had to consult a lawyer before distributing free software,
>it wouldn't be half as successful as it is now.

This isn't entirely true; the more paranoid must still check the less paranoid.
But Wikipedia needs to make it easy by separating out the "fair use" pics
and not claiming any longer that they are being distributed under the GFDL.

As for brief quotations, well, I knew that the GNU licences
would come back to bite us someday, but I expected 50 years from now
(hopefully *after* current copyright law became impossible to maintain).
I never thought they would prove to be inadequate so soon!
Surely RMS thought of brief quotations, one hopes?


-- Toby

On Monday 02 June 2003 01:19, Erik Moeller wrote:

> I didn't choose the FDL, and I wouldn't. If it wasn't so hard to change
> licenses, we might have already switched to Creative Commons style
> copyleft or something similar. I am increasingly coming to the conclusion
> that the FDL is unsuitable for online publications. Even the Debian
> project rejects it. For my own textual projects, I use the public domain.
> The GNU project should stick to software licenses.

Just to avoid a misunderstanding: the Debian project rejects the GFDL mainly
because of the "invariant section" (as far as I understood it). So GFDL is,
according to them, "not free enough". FWIW,

Marco

On Mon, Jun 02, 2003 at 09:07:32AM +0200, Marco Krohn wrote:
> On Monday 02 June 2003 01:19, Erik Moeller wrote:
>
> > I didn't choose the FDL, and I wouldn't. If it wasn't so hard to change
> > licenses, we might have already switched to Creative Commons style
> > copyleft or something similar. I am increasingly coming to the conclusion
> > that the FDL is unsuitable for online publications. Even the Debian
> > project rejects it. For my own textual projects, I use the public domain.
> > The GNU project should stick to software licenses.
>
> Just to avoid a misunderstanding: the Debian project rejects the GFDL mainly
> because of the "invariant section" (as far as I understood it). So GFDL is,
> according to them, "not free enough". FWIW,

GFDL contains basic licensing scheme which Debian fully accepts
and some "extensions" that are obiously non-free - invariant sections,
front cover texts and back cover texts. GFDL document without those
is perfectly ok for Debian.

Tomasz Wegrzanowski wrote:
> I don't know who put the last 2 categories there, but it has been obviously
> done without general consensus and IT BREAKS THE F***ING LAW -
> if you're putting such image on GFDL-ed article you're breaking copyright
> of authors of the article - they didn't give you permisions to distribute
> non-GFDL derivates of their work.

I don't think it's at all clear that including "fair use" content in a
GFDL article has any material impact on GFDL compliance.

I have yet to see anyone who wants to take that argument to the
logical conclusion, i.e. that no GFDL article can quote even one
sentence from any copyrighted source. May an article on Tom Clancy
quote a line from one of his books? May an article on Star Wars
discuss the line "Use the force, Luke?"

Such quoting is normally done under the "fair use" convention.

> We also have to make it legal to distribute Wikipedia in Europe,
> which have different copyright laws, especially when it comes to
> what in USA is called "fair use", and what is usually described
> explicitely by copyright laws.

I do support making it easy for people in most countries to be able to
redistribute Wikipedia, but of course it is not possible nor desirable
to attempt to comply with *every* law of *every* country.

--Jimbo

Hr. Daniel Mikkelsen wrote:
> > Our primary concern, however, especially regarding the English Wikipedia,
> > is for US law.
>
> Is this policy? I think it's a problematic policy. I've heared Jimbo extol
> visions about having Wikipedia printed and sent out to the poor and the
> wretched, once we have enough articles and enough funding.

It's not really policy, it's just a fact. If someone in a foreign
country gets mad at me and wants to use the laws of that country
against me, well, that's just tough for them, because I live in the
United States, and the U.S. will not generally enforce that kind of
claim against me here.

But, yes, it is also true that we want to make sure that what we are
doing is distributable widely, and if we can comply with European
copyright laws too, without too much trouble, we should.

--Jimbo

Marco Krohn wrote:
> We will see what FSF answers to that. I have sent an email to the GNU
> organization and asked them for help on this. As soon as I have their reply
> I'll post it here.

I support you in this. Richard Stallman knows who I am, and so if he
or his people need to ask more specific questions, please let them
know that I'm available and eager to get this resolved.

--Jimbo

--- Erik Moeller <erik_moeller@gmx.de> wrote:

> > No, the precise thing we need is that the copyright holder releases
> > the picture under GFDL.
>
> Also fine, but again, expensive, because it deviates from usual
> licensing policies.

I'm not sure we should assume this before having tried. One could argue
that this should actually be pretty cheap:
* GFDL materials are useless for most commercial enterprises
* if they refuse to release under GFDL, we can always threaten to take
it under fair use, which means that they neither get author recognition
nor money.

> I don't see the slippery slope, sorry.

I don't either. It's either freely distributable/modifiable or it
isn't.

> A "fair use is not allowed" stance is neither
> balanced nor logical. I have not seen your response to my
> analysis that conluded that quotations are more problematic
> than images.

If I understood correctly, you argue that quotes are embedded in the
text while images are kept in separate files, thus GFDL is not
inherited by the photo but is inherited by the quotes. This is
incorrect. Derivative work are required to be under GFDL; what
constitutes a derivative work is defined by copyright law. The
technical detail that text and images are typically kept in separate
files is irrelevant; illustrating an article by adding a picture is a
classical case of a derivative work. Moving quotes out of the main text
and then "including" them somehow is a technical gimmick that doesn't
change anything: adding a quote also creates a derivative work.

So yes, fair use quotes are technically violations of GFDL, but
completely harmless. Nobody wants to change quotes anyway, and fair use
quotes are typically minute parts the work they originate from. Even
commercial redistributors can use those quotes under fair use. All
three of the above are false for images.

Axel

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Axel-
> I'm not sure we should assume this before having tried. One could argue
> that this should actually be pretty cheap:
> * GFDL materials are useless for most commercial enterprises

Which includes the people who sell them ;-). The problem is that by
licensing under the GFDL, the company loses the ability to license to
people like us in the future, i.e. those who want to produce freely
copiable materials. So they will want to get as much money from the first
GFDL licensee as they can, because they won't get another one.
Furthermore, copyright holders are notiously suspicious about anything
new -- they usually have ready made packages and will not alter their
licensing policies just because we tell them to, simply because
understanding the implications of the FDL requires legal consultation
which costs money.

I obviously agree that it's worth trying. But I am not very optimistic.

>> I don't see the slippery slope, sorry.

> I don't either. It's either freely distributable/modifiable or it
> isn't.

In its entirety, yes. But just because we allow fair use, Wikipedia will
not automatically and gradually turn into a proprietary encyclopedia
(slippery slope argument).

> If I understood correctly, you argue that quotes are embedded in the
> text while images are kept in separate files, thus GFDL is not
> inherited by the photo but is inherited by the quotes. This is
> incorrect. Derivative work are required to be under GFDL;

So is the text

Bla

in combination with the text

[[Image:Bla.jpg]]

> The
> technical detail that text and images are typically kept in separate
> files is irrelevant; illustrating an article by adding a picture is a
> classical case of a derivative work.

The wiki-author doesn't add a picture, he adds a reference to a picture.
The web browser will automatically retrieve that image if so instructed
(visit the page with lynx and there is no image). The result is an
aggregated, not a combined work under the FDL. The author cannot even
change the image in any way by editing the article. Now, if article and
image were always compiled together (as they would be on paper), that
would be a different matter. But they aren't.

> Moving quotes out of the main text
> and then "including" them somehow is a technical gimmick that doesn't
> change anything: adding a quote also creates a derivative work.

You would no longer add a quote, but a reference to one, and the same
logic as above would apply.

> So yes, fair use quotes are technically violations of GFDL, but
> completely harmless.

Many copyright holders see things differently. Author Dan van der Vat, for
example, was asked to pay 25 British pounds for quoting two sentences from
Churchill's History of the Second World War in his book "The Atlantic
Campaign". Sure: The legality is questionable. But don't kid yourself
into believing that nobody would ever consider quotes infringing.
Treating fair use of quotes and images entirely differently is
hypocritical and wrong.

Regards,

Erik

[.Note: This is crossposted to <wikitech-l> and <wikipedia-l> for continuity.
Replies should go to <wikipedia-l>, since it's a policy discussion.]

Axel Boldt wrote on <wikitech-l>:

>Erik Moeller wrote:

>>I have not seen your response to my
>>analysis that conluded that quotations are more problematic
>>than images.

>If I understood correctly, you argue that quotes are embedded in the
>text while images are kept in separate files, thus GFDL is not
>inherited by the photo but is inherited by the quotes. This is
>incorrect. Derivative work are required to be under GFDL; what
>constitutes a derivative work is defined by copyright law. The
>technical detail that text and images are typically kept in separate
>files is irrelevant; illustrating an article by adding a picture is a
>classical case of a derivative work. Moving quotes out of the main text
>and then "including" them somehow is a technical gimmick that doesn't
>change anything: adding a quote also creates a derivative work.

Including quotations would indeed be a technical gimmick,
and our server would provide a single HTML file, a derivative work.
That images are separate, however, is more than a technical detail;
it's an important feature of HTTP that's used in other ways.
Our copyright notice at the bottom of the page even refers only to "text";
a result of this feature is that the text is easily separated.


-- Toby

Hello all,
a new static HTML dump can be found in:

http://www/~puglisi/wiki/wikipedia/ma/main_page.html


The script used for this is not downloadable yet, but it will be soon.
Many errors with wikipedia markup, redirects, etc. are fixed. Search sorta
works with IE and Mozilla.

What to do now:

- images are not included, but linked to the online site (each image is
represented as a link). This is a stopgap solution, but I don't have many
ideas about this :-)

- search is done with word indexes (only for page titles), and is
acceptably fast on IE and a bit slower on Mozilla. Still does not work on
Opera, and still limited to only one word to search for, but already
usable :-)

- according to Nero, this dump fits into a 660 CD-Rom, so it's quite
burnable :-)

So now that the technicalities are being resolved, it's time for politics
to enter the issue: namely, what we'll do with this version? CD
distribution? HTML mirrors? what else?

New version planned to fix some of the problems listed above. Stay tuned
:-)

Ciao,
Alfio

Alfio Puglisi <puglisi@arcetri.astro.it> wrote in
news:Pine.SOL.4.31.0306091421490.4480-100000@hercules:

>
> Hello all,
> a new static HTML dump can be found in:
>
> http://www/~puglisi/wiki/wikipedia/ma/main_page.html

Strange URL.

[knip]

> So now that the technicalities are being resolved, it's time for
> politics to enter the issue: namely, what we'll do with this version?
> CD distribution? HTML mirrors? what else?

What would be usefull is a read-only wikipedia version for
* WAP users
* I-mode
* Blind people - I have recieved feedback from blind users that the curent
real wikipedia is not very easy to use for blind people.

* Put Wikipedia on FreeNet
http://www.wikipedia.org/wiki/Freenet

Not many users would use the FreeNet Wikipedia edition, but it can give
some publicity. It would be a nice support for the FreeNet community.
Wikipedia would be the most famous website the has been ported to FreeNet.

* Setting up a central page for the organisation of the Wikipedia mirrors
and create a pollicy to get and keep the label "Official Wikipedia Stattic
Mirror"


Walter(*)



(*) formaly known as Giskart
--
Contact: walter AT wikipedia.be
Ook een artikeltje schrijven? WikipediaNL, de vrije GNU/FDL encyclopedie
http://www.wikipedia.be

On Mon, 9 Jun 2003, Walter wrote:

>Strange URL.

Ooops, here is the correct one for the world outside the LAN:

http://www.arcetri.astro.it/~puglisi/wiki/wikipedia/ma/main_page.html


Ciao,
Alfio

--- Erik Moeller <erik_moeller@gmx.de> wrote:

> The wiki-author doesn't add a picture, he adds a reference to a
> picture.

...with the intent and expectation that the image and the text be
combined into a whole by the user's browser. It's a technical detail
that this combining is done by the browser rather than by the server -
had we used PDF rather than HTML as our distribution medium, then the
combining would take place on the server.

> > So yes, fair use quotes are technically violations of GFDL, but
> > completely harmless.
>
> Many copyright holders see things differently. Author Dan van der
> Vat, for example, was asked to pay 25 British pounds for quoting two
> sentences from
> Churchill's History of the Second World War in his book "The Atlantic
> Campaign". Sure: The legality is questionable.

In other words: this would be laughed out of court.

> But don't kid yourself
> into believing that nobody would ever consider quotes infringing.
> Treating fair use of quotes and images entirely differently is
> hypocritical and wrong.

It is neither, since short textual quotes are quite different from
images in at least two respects relevant to fair use.

1) Quotes are typically a tiny fraction of the whole work, while images
are typically 100% of the whole work.

2) There is no functioning market for the rights in short quotes, but
there is a functioning market for the rights in images.

Now, I don't think Wikipedia is at any risk whatsoever: if somebody
complains about an image, we simply take it down. We don't have money,
so we won't get sued. The downstream users of our materials however may
not share these luxuries, and in addition may have commercial interests
which weakens their fair use defense considerably. In effect our fair
use images shut out large classes of potential users of the
encyclopedia.

Axel

__________________________________
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Yahoo! Calendar - Free online calendar with sync to Outlook(TM).
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Axel-
>> The wiki-author doesn't add a picture, he adds a reference to a
>> picture.

> ....with the intent and expectation that the image and the text be
> combined into a whole by the user's browser.

What matters in law is the text of the FDL, because that's what we're
dealing with. The FDL states that aggregation with "separate and
independent" works is acceptable. The wiki-author creates a combined work
of the previous work and the image reference -- with the expectation that
they will be *aggregated* on *some* users' systems. Texts and images are
separate works, stored separately, sometimes transferred together,
sometimes not. They do not constitute a single, individual work only
because some browsers display them together. This case is explicitly
treated in the FDL. Do you accept that there is a distinction between
aggregation and combination? Then where does combination end and
aggregation begin?

The classical example for aggregation is a CD-ROM of several works. But
just like a Wikipedia text with an image, the individual works are almost
certainly tied together via references and identifiers. Would a CD-ROM
that displays dynamically copyrighted, keyword-associated pictures when an
article is shown infringe the FDL? Hardly.

>> Many copyright holders see things differently. Author Dan van der
>> Vat, for example, was asked to pay 25 British pounds for quoting two
>> sentences from
>> Churchill's History of the Second World War in his book "The Atlantic
>> Campaign". Sure: The legality is questionable.

> In other words: this would be laughed out of court.

Maybe so, but would Wikipedia go to court?

> It is neither, since short textual quotes are quite different from
> images in at least two respects relevant to fair use.

> 1) Quotes are typically a tiny fraction of the whole work, while images
> are typically 100% of the whole work.

Even when they are "combined" with Wikipedia articles? ;-) At least now
you are interpreting the term "work" reasonably. The next step is to do so
not only when it suits your argument ..

> 2) There is no functioning market for the rights in short quotes, but
> there is a functioning market for the rights in images.

Mostly true, and we should be very careful in dealing with images that are
part of this market. This is the essence of a reasonable fair use doctrine
for Wikipedia: Try to figure out if someone may be interested in stopping
distribution of picture X, and if so, do not include it (possibly with
some rare exceptions of high political/historical significance).

> Now, I don't think Wikipedia is at any risk whatsoever: if somebody
> complains about an image, we simply take it down. We don't have money,
> so we won't get sued. The downstream users of our materials however may
> not share these luxuries,

That's why we will provide the flags in the image table.

> and in addition may have commercial interests
> which weakens their fair use defense considerably.

People who want to make money with Wikipedia can be expected to do some
manual work.

> In effect our fair
> use images shut out large classes of potential users of the
> encyclopedia.

So does the FDL. But we can make fair use optional.

Regards,

Erik

[Replies should go only to <wikipedia-l>.]

Axel Boldt wrote in part:

>Erik Moeller wrote:

>>The wiki-author doesn't add a picture, he adds a reference to a
>>picture.

>...with the intent and expectation that the image and the text be
>combined into a whole by the user's browser. It's a technical detail
>that this combining is done by the browser rather than by the server -
>had we used PDF rather than HTML as our distribution medium, then the
>combining would take place on the server.

I've decided that this is not at all a technical detail.
It's part of the point of both our design and HTML's design
that the same image can be dynamically combined
with several different pieces of text.
Indeed, if we used PDF and had to combine things on our server,
*then* we might have an argument that this was merely a technical detail,
in an attempt to wriggle out of the GFDL's restrictions.
But with HTML, the technology is following the authors' intent precisely.

>>Author Dan van der Vat, for example, was asked to pay
>>25 British pounds for quoting two sentences from
>>Churchill's History of the Second World War in his book
>>"The Atlantic Campaign". Sure: The legality is questionable.

>In other words: this would be laughed out of court.

Was it?

>>But don't kid yourself
>>into believing that nobody would ever consider quotes infringing.
>>Treating fair use of quotes and images entirely differently is
>>hypocritical and wrong.

>It is neither, since short textual quotes are quite different from
>images in at least two respects relevant to fair use.

>1) Quotes are typically a tiny fraction of the whole work, while images
>are typically 100% of the whole work.

This, I think, is an important point.
It came up long before in discussion of album covers.
It seems doubtful that our usage of these images
is truly "fair use" in the first place
(a separate issue from whether it violates the GFDL).
After all, the portion of *our* work that it constitutes is irrelevant
(and that's still 100%, since the image is the entire work for us too);
it's the portion of *their* work, and that's obviously 100%.

>2) There is no functioning market for the rights in short quotes, but
>there is a functioning market for the rights in images.

Yes, this also affects "fair use" law in the US.

>Now, I don't think Wikipedia is at any risk whatsoever: if somebody
>complains about an image, we simply take it down. We don't have money,
>so we won't get sued. The downstream users of our materials however may
>not share these luxuries, and in addition may have commercial interests
>which weakens their fair use defense considerably. In effect our fair
>use images shut out large classes of potential users of the
>encyclopedia.

It shuts out hardly any users, relatively speaking,
since it doesn't shut out any readers or writers.
What it shuts out is forkers, and others that would reproduce Wikipedia.
This is why it's important that we not claim that all image files
are covered under the GFDL, since many are no such thing.
IOW, it's the separation of the free images from the proprietary ones
that we need to be working on.


-- Toby

Axel Boldt wrote:
> Now, I don't think Wikipedia is at any risk whatsoever: if somebody
> complains about an image, we simply take it down. We don't have money,
> so we won't get sued. The downstream users of our materials however may
> not share these luxuries, and in addition may have commercial interests
> which weakens their fair use defense considerably. In effect our fair
> use images shut out large classes of potential users of the
> encyclopedia.

I agree with this assessment. I would add to this a general concern
that our use of images under "fair use" prevents the rise of a
stronger demand for really free sources of images.

Jimmy-
> I agree with this assessment. I would add to this a general concern
> that our use of images under "fair use" prevents the rise of a
> stronger demand for really free sources of images.

I believe this argument is fallacious, since most of our instances of fair
use are in cases where it isn't realistically possible to get a "really
free" source. We're not going to put up an image of a famous building as
fair use, because we can get a Wikipedian to make a photograph. But we
can't make free photographs of deceased celebrities in any appealing
state.

Of course, we can try to get permissions (and we can, and should, try to
do so with all of our fair use images), but our main problem with doing so
is that we effectively require the copyright holders to relicense their
works under the FDL or to put them in the public domain. Most people
aren't going to do either.

Regards,

Erik

--- Erik Moeller <erik_moeller@gmx.de> wrote:
> Axel-
> >> The wiki-author doesn't add a picture, he adds a reference to a
> >> picture.
>
> > ....with the intent and expectation that the image and the text be
> > combined into a whole by the user's browser.
>
> What matters in law is the text of the FDL, because that's what we're
> dealing with.

Actually, what matters is the meaning of "derivative work", which is
defined in copyright law. If illustrating an article with a picture
creates a derivative work, GFDL applies automatically to the whole.

> This is the essence of a reasonable fair use
> doctrine for Wikipedia: Try to figure out if someone may be
> interested in stopping distribution of picture X, and if so, do not
> include it (possibly with some rare exceptions of high
> political/historical significance).

That does not make good policy: Wikipedia contributors have zero
incentive to do this research. They want to illustrate an article, and
quick. Finding the copyright holder and sending an email to ask whether
there is a functioning market for digital reproduction of this picture
would be way to much hassle. Should all fair-use pictures without this
proof be deleted?

> > and in addition may have commercial interests
> > which weakens their fair use defense considerably.
>
> People who want to make money with Wikipedia can be expected to do
> some manual work.

"The free encyclopedia", as in "freely modifiable and redistributable",
not "free for non-commercial use".

Axel

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(This policy stuff should really be over on wikipedia-l, not here,
so I am cc:'ing).

Toby Bartels wrote:
> It came up long before in discussion of album covers.
> It seems doubtful that our usage of these images
> is truly "fair use" in the first place
> (a separate issue from whether it violates the GFDL).

It doesn't seem doubtful to me. See Kelley v. ArribaSoft on
thumbnails:
http://biotech.law.lsu.edu/cases/IP/copyright/kelly_v_arriba_soft.htm

And also: "On the other hand, in Nunez v. Caribbean International News
Corp.,*fn22 the First Circuit found that copying a photograph that was
intended to be used in a modeling portfolio and using it instead in a
news article was a transformative use."

It's a very complicated issue, and although I've spent many hours
reading court cases, I still can't say with any certainty on lots of
questions.

But the album cover example seems pretty squarely fair use.

> It shuts out hardly any users, relatively speaking,
> since it doesn't shut out any readers or writers.
> What it shuts out is forkers, and others that would reproduce Wikipedia.
> This is why it's important that we not claim that all image files
> are covered under the GFDL, since many are no such thing.
> IOW, it's the separation of the free images from the proprietary ones
> that we need to be working on.

This I agree with completely.

Also, *where possible*, and I think this is more cases than people
commonly realize, we should be replacing fair use images with pure GNU
FDL images.

--Jimbo