[WikiEN-l] What constitutes a copyvio?

Thu Sep 11 22:38:13 UTC 2003

--- "Alex R." <alex756 at nyc.rr.com> wrote:
> I agree with all of Jimbo's point. The dichotomy
> commercial v.
> non-commercial
> is not really applicable because of the GFDL. 

Ok.

> 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.

You say "will be found" as if this were a "legal
certainty." Is  there such a thing where
hyper-transmission of materials is concerned? Please
dont point to the current RIAA case-- its likely to
recieve a severe case of public-advocacy backlash.

> 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) 

This is pretty straightforward. It comes down to a
contract between contributor and Wikipedia.  A
deliberate and repeated violation of this contract is
the real issue. Understood. 

>Wikiepedia
> may not have any
> direct absolute liability because "Wikipedia" as
> such,  did not contribute
> the
> text 

This is exactly what I said. 

(a reason that the editors should retain
> authorship attribution and
> copyright IMO) 

Is this going to happen? How does this jive with the
open-wiki model?  Again, the democratizing,
open-source model was never really inline with the
privatized proprietary model in any case-- it's just a
matter of time for these things to come to a head -- I
see no point in changing horses in mid-stream now.  

> 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 

And I take it that "due diligence" does not mean "an
excess of zeal" either right?  We all are *not in
disagreement.  Should we (for clarity's sake) now
better define the term "due diligence" -- or must it
remain as subjective as the law is itself? :-)

> effectively
> making the GFDL license scheme useless except to
> non-income producing downstream licensees 

I see, so the whole notion of open-encyclopedia,
generated by free editor labor, is somehow predicated
on the possibilty that it will someday must be used by
someone "for-profit" -- and not merely maintained as a
perennial world resource ?  Is'nt
this--philosophically in contradiction to your first
paragraph--more subject to laws dealing with
non-profit, for-profit distinctions?

> 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 quite clear.  What at issue now are specific
technicalities --1. Copyviolations in the article
history only--not in the current version.  -- is it
necessary to delete an article --or can it simply be
refactored?  2.  The creation of stubs from copyvio
sources.  3. Proper attribution to article source as a
mitigating factor in a hypothetical claim of
violation.  4. The inefficiency of deferential
preference to the VFD process over refactoring.

> 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).

As long as people are made better aware of this
fact--essentially, that they are personally
responsible for the material they submit specifically
in a civil defamation context.  The issue then is,
since WP itself is shielded, how much can or will or
should WP shield its contributors?

> 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.

Tadaa. ( Meaning: Similar to ViolÃ¡ ). 
Never say never though?

> 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

Thank goodness!  But this new notice will take maybe
an hour for one of the developers to implement. I hope
the Firmament does'nt get sued before then. 

Thank you Alex. I think that all of this actually
cleared something up. My spidey-sense is getting back
to normal.

Ah the sweet swell of indication,
~S~
"I don't believe in nothin nomore--I'm going to law
school." -The dark-cap wearing teenage bully from 'The
Simpsons'

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