On 10/20/05, uninvited(a)nerstrand.net <uninvited(a)nerstrand.net> wrote:
Anthony DiPerro wrote:
I think it's also important to realize that
there isn't really a serious
legal threat to keeping these images around. OCILLA would protect
Wikimedia
in this case, and even moreso as the image is
merely being kept around
temporarily while its fate is decided. It's important that we remember
why
we're removing these images in the first
place - it's because Wikipedia
is a
free encyclopedia - not because there's a
serious legal threat
involved.[...]
I disagree.
OCILLA does not protect a content provider that is aware of the
copyright violation. And we are aware of it, both in the general terms
that we know that we have thousands of unfree images, and in specificity
with regard to this case in particular.
I'm aware of "it", but I'm not Wikimedia. I'm not an employee of
Wikimedia.
I'm not an officer of Wikimedia. Wikimedia can't be sued because you or I am
aware of something.
Furthermore, while I'm aware of the existence of the image, that doesn't
mean I'm aware that it is a copyright infringement. In fact, I highly doubt
that it is a copyright infringement.
To think that Wikimedia is going to get sued because we kept an image which
was probably fair use around for a few weeks while we tried to determine
whether or not we could use the image, without receiving so much as a legal
threat, and deleted the image after those few weeks or whenever we received
a complaint from the copyright holder, whichever came first, is called
*copyright paranoia*. It would make absolutely no sense to sue Wikimedia
over such a thing. You'd almost certainly lose, and even if you won the
damages you'd be awarded would be virtually nonexistent. It's quite simply
*not going to happen*.
We even tag copyvios. How
would we mount an OCILLA defense for content that had
been tagged as a
copyvio by a Wikipedian, put on a list of copyvios, and then served up
for another 30 days?
The argument that some have advanced that it
"might be fair use" doesn't hold any
water WRT to OCILLA because fair
use is an affirmative defense - the onus of proof is on us. Moreover,
this image isn't fair use.
The distribution of this image for the purposes of determining whether or
not we should include it in the encyclopedia most certainly is fair use. But
that's not even necessary. In order to fall under OCILLA, Wikimedia must
"not have actual knowledge that the material or an activity using the
material on the system or network is infringing." It doesn't need to
actually be fair use for us to be protected under OCILLA, it is only
necessary that Wikimedia (which I'd take to include officers, employees, and
the board, but not any mere volunteer editor) has *actual knowledge* that it
isn't fair use (or "be aware of facts or circumstances from which infringing
activity is apparent", which isn't the case either).
The problem I believe we have from a legal standpoint is that we could
be sued and end up with either a settlement or
injunction giving us a
very short amount of time to identify and remove problem content.
An injunction? The image would be deleted long before the judge even hears
the case. Any request for an injunction would be moot. It would be
absolutely ludicrous for a copyright holder to persue a lawsuit at all when
all they have to do is send an email or letter to the DMCA compliance
officer.
Since our processes take time, we might end up having to quit serving
images until we were able to be sure the problem
content was gone.
The process to take down an image when no one is actually complaining about
that image takes time. The process at [[Wikipedia:Request for immediate
removal of copyright violation]] takes much less time, and the process of
contacting Jimbo by telephone or email probably would take even less time
than that.
That would be a real blow to the project. I think it's relatively
unlikely. IMO the greatest risk is not from Eddie
Bauer or a hollywood
publicist, but rather from the Bettman Archive, Britannica, Reuters, or
someone else who sees us as competition. If Reuters found 200 stolen
images, they'd have a hell of a case. Do we have 200 images stolen
from Reuters? I wouldn't care to speculate.
Well look, I agree that anything from Reuters or Britannica and the like
would be our worst problem. And do we have 200 images from Reuters, I don't
know. But we don't have 200 images from Reuters which are currently
undergoing evaluation as a PUI or a copyright violation.
If Reuters did find 200 images of theirs on Wikipedia, I still think start
out by contacting us and giving us information about them. And we should and
almost certainly would work closely with them to resolve the problem. Sure,
they could sue and maybe get a few bucks for the past infringements, but if
instead they worked with us we could provide them with a direct contact that
would immediately delete the images as they find them.
Now maybe you're going to say that they'd try to sue us just so they could
shut us down, but I don't see that happening. Wikimedia is making a good
faith effort to respect copyright law, and a judge or jury is going to see
that and not award a ridiculous judgement against it. Furthermore, the
donations of money and legal support would come pouring in in such a
situation. Again, I think these fears are copyright paranoia.
In general I am more concerned about perception and bad press. The
mainstream press would love to run an article
comparing Wikipedia to
Napster. Taking 30 days to delete copyvio hardcore porn, or images
from Reuters, neither of which can't be speedied if properly
attributed, doesn't do a thing for our reputation.
Well, I think we're talking about two different things here. I think a cut
and dry case of copyright infringement should be deletable immediately. If
we are, to quote OCILLA, "aware of facts or circumstances from which
infringing activity is apparent", we should delete the image immediately (or
more accurately, we should immediately stop distributing the image - there's
no need to actually delete it as mere possession of copyrighted materials is
not illegal).
I don't know that I agree
that the use of this image isn't fair use. It
probably is.
I continue to find it troubling that there remain widely respected
Wikipedians that cannot recognize cases such as this that clearly are
not fair use.
So, since you believe this is *clearly* not fair use, I assume you can point
to a number of court rulings, some at a very high level in the appeals
process, which cover similar uses which were ruled to not be fair use? I for
one would be interested in seeing those cases.
Otherwise, your clarity is actually pure speculation.
Anthony