[WikiEN-l] Questionable fair use claims: a case study

Thu Oct 20 19:26:57 UTC 2005

Anthony DiPerro wrote:

> I think it's also important to realize that there isn't really a serious
> legal threat to keeping these images around. OCILLA would protect Wikimedia
> in this case, and even moreso as the image is merely being kept around
> temporarily while its fate is decided. It's important that we remember why
> we're removing these images in the first place - it's because Wikipedia is a
> free encyclopedia - not because there's a serious legal threat involved.[...]

I disagree.

OCILLA does not protect a content provider that is aware of the
copyright violation.  And we are aware of it, both in the general terms
that we know that we have thousands of unfree images, and in specificity
with regard to this case in particular.  We even tag copyvios.  How
would we mount an OCILLA defense for content that had been tagged as a
copyvio by a Wikipedian, put on a list of copyvios, and then served up
for another 30 days?  The argument that some have advanced that it
"might be fair use" doesn't hold any water WRT to OCILLA because fair
use is an affirmative defense - the onus of proof is on us. Moreover,
this image isn't fair use.

The problem I believe we have from a legal standpoint is that we could
be sued and end up with either a settlement or injunction giving us a
very short amount of time to identify and remove problem content. 
Since our processes take time, we might end up having to quit serving
images until we were able to be sure the problem content was gone. 
That would be a real blow to the project.  I think it's relatively
unlikely.  IMO the greatest risk is not from Eddie Bauer or a hollywood
publicist, but rather from the Bettman Archive, Britannica, Reuters, or
someone else who sees us as competition.  If Reuters found 200 stolen
images, they'd have a hell of a case.  Do we have 200 images stolen
from Reuters?  I wouldn't care to speculate.

In general I am more concerned about perception and bad press.  The
mainstream press would love to run an article comparing Wikipedia to
Napster.  Taking 30 days to delete copyvio hardcore porn, or images
from Reuters, neither of which can't be speedied if properly
attributed, doesn't do a thing for our reputation.

> I don't know that I agree
> that the use of this image isn't fair use. It probably is.

I continue to find it troubling that there remain widely respected
Wikipedians that cannot recognize cases such as this that clearly are
not fair use.