[WikiEN-l] Non-free images, there has to be a better way

Wed Jul 6 04:49:57 UTC 2005

Fastfission wrote:

>I'm coming into this a bit late, but the silliest thing about this
>policy is that the two types images currently allowed under Wikipedia
>policy are one with a free license, and ones without any free license
>at all except our somewhat dubious pro-active claim of fair use (fair
>use in the U.S. can only be used in defense, it cannot be used
>offensively).
>
I agree that fair use is essentially defensive in nature, but a fair use 
is that from the time that the image is put up.  By definition if 
something is used in fair use it is not a copyright infringement.  If 
something is determined to be fair use it will be so irrespective of the 
licensing situation.

>Now I understand the importance of having free licenses, but I think
>it is very silly that images licensed for non-commercial use are
>singled out as "non-free" while slapping "fair use" on anything seems
>to get by without so much as the raising of an eyebrow most of the
>time.
>
And so it should, as long as the person slapping on the tag is aware of 
what that means, and is prepared, if asked, to evaluate the situation in 
terms of the fair use criteria in the law.

>Let us say this is about content providing -- i.e., we don't provide
>things that others can't use. I don't see why "fair use" images would
>be any different in this respect -- the individual user is going to
>have to evaluate whether their particular use of the image is still
>covered by fair use, whether they want to take that gamble, etc. If
>non-profit Wikipedia feels comfortable using copyrighted images of
>Mickey Mouse and claiming fair use, great, but any future for-profit
>encyclopedia is going to have to answer for themselves. "Fair use" is
>just as conditional on context and use as any "permission for anything
>non-commercial" -- perhaps even worse, since pre-emptively claiming
>fair use is playing with legal fire as it is.
>
All downstream users should exercise their own diligence.  Although we 
try to use images that can be used safely by them they still know their 
own circumstances best.

>If we are only going to provide "totally free" content, we should
>eliminate all fair use images as well. If we are not going to do that,
>we should not worry so much about images which are licensed under
>relatively free licenses -- i.e., free for use with acknowledgement,
>free for use in non-commercial settings, free for use just on
>Wikipedia, etc.
>
An illustration under a relatively free licence may still be fair use.

>Claiming "fair use" in general seems legally problematic to me in
>general but I'm not a lawyer. I could imagine a very clever Disney
>lawyer saying, "Well, Wikipedia gives the impression that its content
>is 'free', and puts our images right next to the rest of their 'free'
>content. If Wikipedia was just trying to make their own non-profit
>encyclopedia, that would be one thing, but since they are also trying
>to provide an open-source, re-distributable content, they are actually
>in the business of telling people our copyrighted work is of
>questionable legal status, which we must affirm to the contrary."
>Whether such an argument would hold or not is not something I know,
>but it would be a messy thing nonetheless. And rest assured Disney
>Corp. would be no more worried about the "legions" of nasty e-mails
>they might get from Wikipedians than Microsoft Corp. does from the
>Open-Source movement members.
>  
>
This is an extreme example.  Even a litigiously protective organization 
will see a single still of Mickey Mouse as fair use.  It's effectively 
free advertising for them.  You're speculating about the thinking of a 
potential legal opponent who is speculating about what we are doing..  
At least give them credit for a minimal ability to be realistic.

Ec