[WikiEN-l] Re: Fair Use suppression getting silly

Tue Sep 27 23:03:00 UTC 2005

Fair use is not a question of whether it is a black and white
"compatible with the law" or "incompatible with the law". Fair use
comes down to a weighing of factors and intent by a judge, and that
only if you end up court. Hence I sometimes find it more useful to
think about "fair use" in terms of "risk factors", for lack of a
better phrase. "High risk" fair use claims are ones which could easily
incite a copyright holder to sue Wikipedia, in part because the
copyright holder would have a good reason to think a judge would be
sympathetic to them. "Low risk" fair use claims are one which are not
likely to ever get in front of a judge, because a copyright holder
would find our fair use claims sufficiently robust as to not guarantee
any easy legal battle. Hence the goal of articulating clearly our fair
use rationale and claims -- the better articulated they are, and the
more legally savvy they are, the more work they will do for us in
reducing our general risk.

I see this as pretty low risk, myself, for reasons already
articulated. We are not using them in a way which generates us any
profit; our use of them is strictly for indexing and sorting purposes;
and the thumbnail images are of such low resolution that they, in and
of themselves, could not possibly compete with any existing market. A
better cause for argumentation (one which I think is still not a
problem) would be image description pages, which can be accessed as
"separately published content" from the article pages themselves,
devoid of content alltogether in many cases. But I feel this is
getting all too academic; none of this takes into account that most
likely any judge would be quick to recognize that such things are
simply technical hurdles necessary for the primary and most important
use of the copyright image, which is part of our self-described
"content". The low resolution of the thumbnail images would also
surely be considered enough of a transformation to render them grossly
less useful than the original copyrighted work in every respect. There
has been at least one case which, though its circumstances were in
some ways different, had this as an important element in the granting
of a "fair use" decision.

If there are reasons to think that this would not be a very "low risk"
fair use claim, I'd be interested in hearing them. So far I've only
seen "used in an article about the subject of the image" invoked which
is less of a legal stricture than a Wikipedia policy used to make sure
that "fair use" images are not applied willy nilly to things they
should not be. It is a nice conservative policy which I on the whole
support, but I think this interpretation of it is a little batty.
Another similar Wikipedia policy which is not directly a legal one is
the "don't use fair use if there are free alternatives." This is not
because there is any law which says "if there were alternatives, you
get no fair use claim," it is because if possible we'd like to avoid
being at any risk at all, avoid even asking the question.

I wanted to also note that most of the fair use image categories are
not oriented around a single copyright holder, as "Pictures of Ford
cars" would likely be. They are things such as "Pictures of political
posters" or "Pictures of DVD covers" and things of that sort. Whether
or not this difference is substantive or not depends on how you reason
it, but I think it makes it clear that their arrangement in the
category pages is simply indexical and is not about any systematic
attempt to make further copyright violations easier.

Again, this is just my reasoning on it. Not a lawyer, etc.

FF

On 9/27/05, Ryan Delaney <ryan.delaney at gmail.com> wrote:
> On 9/27/05, Phil Boswell <phil.boswell at gmail.com> wrote:
> >
> > If you add [[Category:Pictures of Ford cars]] to that page, the picture
> > will
> > then appear on the appropriate page **as a member of that category**. Not
> > illustrating the category...not describing it...simply as a **member** of
> > the category.
> >
> > Some people seem to think that our Fair Use policy should be so draconian
> > that this kind of picture should not be allowed to belong to any category,
> > simply because the automatic display of the image's thumbnail on the
> > associated category page constitutes violation of Fair Use.
>
>
> Again, fair use law has nothing to do with what we, personally, find
> unreasonable or draconian. If it is the case that having images listed in a
> category is incompatible with the law, then we shouldn't do it, period. You
> would have to show why this practice constitutes a fair use and the burden
> of proof would be squarely on you. As it happens, I think that whoever is
> raising this issue is making a pretty good point.
>
> - Ryan
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