On 7/24/06, Ray Saintonge <saintonge(a)telus.net> wrote:
1) It is
ethically questionable. When we distribute someone's
commercial work tagged as free content, we risk seriously letting the
genie out of the bottle. It would do us no good to gain a napster-like
reputation.
What makes it unethical? Is it any more ethical to deprive people of
due process if they can make a reasonable legal case. This is not a
matter of agreeing to every stupid argument that comes along. This has
nothing to do with genies or Napster.
There is nothing unethical about removing content from our site which
is in clear violation. Submitters of content are not entitled to due
process. Wikipedia is not a courtroom.
It is, however, clearly unethical to distribute the copyrighted
content of others without their authorization.
If the copyright paranoiacs want to put themselves
into a panic, why
should the rest of us fall into line with them. Each case needs to be
judged on its own merits.
We can not afford, in terms of liability or available resources, to
make a legally sound deep analysis for every image on a case by case
basis. A simplified approach is required. Fortunately our project
isn't centered around distributing legally questionable content, so
rules which are more conservative then they need to be legally are
generally acceptable.
Each incident is separate, and other instances would
be inadmissible as
evidence to prove that a specific incident is an infringement. This
position is pure speculation.
Do you honestly believe that a judge would ignore evidence supporting
a continued and willful violation of the law in making a
determination?
Ultimately, only a judge can decide whether a
contribution is in fact a
coyright violation. We may suspect copyright violations; we may demand
that a contributor accept responsibility (and define what that means),
but we can rarely make a definitive statement that a particular writing
or image is in fact a violation.
It's a dangerous game you propose here.
A majority of items taken down for copyright infringement are fairly
clear cut: the submitter uploaded content for which he is not the
copyright holder, no license grant has been provided by the copyright
holder, and the material is clearly new enough to be covered by
copyright.
It would seem that you are proposing in these cases that we ignore the
obviousness of the violation and wait for a properly formed DMCA
takedown notice before taking action. Since you're so sure that this
is an acceptable solution are you able to provide the Wikimedia
Foundation with indemnity from losses resulting from taking your legal
advice?
In short, while
being a nice legal fall-back, the safe harbor terms
are not anything we want to rely on in terms of our copyright policy.
It's not merely a fall back, but a first step in arriving at a formal
decision. When a properly composed notice is issued we must remove the
offending material.
It seems to me that you've forgotten that one of the two primary goals
of Wikipedia is to provide Free Content. We have failed at that goal
when our site contains a huge number of copyright violations waiting
for their DMCA notice to come in...
So while it is necessary that we remove content once properly noticed,
it is not sufficient for us to wait for that to happen.