Fastfission wrote:
On 7/7/05, Ray Saintonge <saintonge(a)telus.net>
wrote:
There are two important perspectives on this, the
per item perspective
and the overall perspective.
Periodically, each and every item needs to be reviewed, and the fact
that one meets today's criteria for inclusion does not imply that it
will meet those same criteria next year.
Of course, with 14,449 images tagged as fair use (I figured out a way
to get a rough estimate using "What Links Here" and playing with the
numbers in the URL*), this seems extraordinarily impractical. (To our
credit, we have a whopping 46,520 pages tagged as GDFL).
(Which to me says, if we are not going to purge all of them, then we
should try and subcategorize them into smaller fair use categories,
similar to those used for book covers and so forth, but expand to
other relatively "safe" things such as "historical images" and
"headshots" and "large scientific instruments" or something like
that.)
That seems sensible. Can't we just adapt the existing category system
for this purpose?
Beyond that
there is no precise rule that can be
established, but we do know that there is some imprecise point out there
which will be over the top.
The straw that breaks the camel's back does not function in isolation.
This is somewhat true, but it should be remembered that we are dealing
here purely with hypotheticals, that in "real life" it would come down
to the discretion likely of one person (a circuit court judge, unless
these are jury trials, but for some reason I don't think there are,
but I might be remembering wrong).
IIRC this may be within the exclusive jurisdiction of federal courts,
and may fly below the level of jury trials.
One also has to distinguish between civil and criminal infringement.
Criminal infringement is a highly unlikely scenario because of the need
to prove wilfulness and outright refusal to comply when there is no
doubt about the person's copyrights. There would also need to be
"commercial advantage or private financial gain". That would require a
level of stupidity beyond what our most ardent copyright crusaders would
exhibit.
For civil infringements, which can only be based on specific items, the
claimant needs to jump through a few hoops before he gets his big payoff.
He needs to have issued a takedown notice.
He needs to have registered his copyright. This is not needed for
simply owning the copyright, but is needed to start an infringement action.
He needs to sort out which court has jurisdiction and where the
possible trial would take place
He needs to counter any reasonable fair use defense that we may
raise at trial.
He needs to elect to have statutory penalties apply. This one's a
no-brainer since a claim on profits would get him laughed out of court,
and actual damages to him will likely be negligible.
All this is for statutory damages in the range of $500 to $20,000. The
courts could even reduce the damages to $200. How risk tolerant will
the person be when there is a strong possibility that the legal expenses
may far outweigh a $200 recovery.
This is not an argument for a you-can't-catch-us attitude. It is a
strong argument against copyright paranoia.
Ec