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