[WikiEN-l] What constitutes a copyvio?

Thu Sep 11 19:48:09 UTC 2003

From: "Jimmy Wales" <jwales at bomis.com>
>
> This need not be a matter of technical legal copyright problems!  Our
> standards go far beyond that of mere obediance to the law.  Even if
> there were some legal gray area here (and there is not, IMHO), it's
> still plagiarism.

I agree with all of Jimbo's point. The dichotomy commercial v.
non-commercial
is not really applicable because of the GFDL. As well, even if one were to
use the fair use defense under US law, this fair use may not be fair use for
downstream licensees. The problem is that fair use does not primarily depend
on the third sector (what some people call non-profits as being the "third
Force
in democractic societies); fair use is a specific use defense. Thus it might
be
allowed in Wikipedia, copying a whole text might not be considered a
copyright
infringement, but someone downstream that does not have notice of that fact
is going to infringe and may not have the same fair use defense as Wikipedia
will be found an infringer.

While anyone who releases a text has the burden to prove that they did not
engage in an infrnging act (thus the burden IMHO should be on the editor
contributor and the downstream licensee) Wikiepedia may not have any
direct absolute liability because "Wikipedia" as such,  did not contribute
the
text (a reason that the editors should retain authorship attribution and
copyright IMO) the goal is to create a base of knowledge that can be used,
not sidelined because the due dillegence could not be done to show who
actually owns the co-author copyright on any Wikipedia article thus
effectively
making the GFDL license scheme useless except to non-income producing
downstream licensees ( not-for-profit publishers will probably be considered
no different than commercial publishers, the only difference is that the
money
in a not-for-profit does not go to the shareholders (there are none) it goes
to'
salaries and the assets of the corporation, there is still plenty of income
from
the exploited intellectual property.

Thus, copyright violation vigilance will do at least two things, first make
it easier for third parties to do their due dillegence, second make it
harder
for Wikipedia (be that the volunteers or the not-for-profit structure in
Wikimedia) to be held liable for failure to take reasonable steps to prevent
any infringement (or defamation/personality rights issues from cropping up).
This is important when dealing with non-US nationals that browse Wikipedia,
Wikipedia's problem will not be copyright so much as it will be the problems
that might arise with defamation and privacy/publicity rights; in those
cases
the person that posts the tortious material is not shielded by US law. the
law
in the place of the defamation applies (and that can be any country in the
world).

We should also remember that copyright law itself provides the best "out"
for
this kind of problem. sec. 102(b) of Title 17 USC states:

"(b) In no case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation,
concept,
principle, or discovery, regardless of the form in which it is described,
explained,
illustrated, or embodied in such work."

Thus any material that is rewritten to the point where the only resemblance
with
the original material are ideas, concepts, facts, that will never be a
copyright
infringement.

As far as history pages are concerned my current thinking on copyright
infringements
appearing on these pages is to invoke sec. 108 of the Copyright Act. Thus
while
a current page version is released under the GFDL, prior versions of an
article
should have the famous 108 notice so that if some one has downloaded
copyright
infringing material at least Wikimedia will not be responsible as it is
acting as a
non-commercial archive (this cannot apply to the current version of any page
as
it would be in violation of the GFDL).

Alex756