[Wikipedia-l] Re: What would Richard Stallman say?

Sat Feb 21 16:39:56 UTC 2004

Daniel Mayer wrote:

> Michael Snow wrote:
>
>>Sorry, but if we start conceding that in effect, we are 
>>combining an article with an image into a single document 
>>under GFDL, downstream users have to be able to use the 
>>image alone. We are licensing them to modify the document, 
>>and potential modification includes stripping out all the text 
>>and just leaving the image. We cannot restrict downstream  
>>modification--that's essential to copyleft.
>>    
>>
>
>Sorry but fair use exists outside the concept of copyright and thus a fair use
>but otherwise non-FDL image in an article can no more become copyrighted under
>the GNU FDL than a quote in the same article can (fair use is essentially a
>grant into a type of public domain for limited uses).
>
Totally wrong. The entire basis for fair use is Section 107 of the 
Copyright Act. Fair use has no existence outside the concept of 
copyright. It is a defense that may be claimed if the user is accused of 
copyright infringement. It is not in any sense a grant into the public 
domain, it's merely a limitation on the copyright owner's ability to 
prevent certain uses. The work used remains copyrighted, only the 
particular use is allowed. Any material we use under fair use is 
copyrighted, but because we don't own the copyright, we don't really 
have the ability to properly grant GFDL on it, because we can't restrict 
downstream users to the particular use that was *fair*.

> In short, no license can
>affect whether or not something is fair to use since it is the *use*, not the
>license terms, that determine fairness. 
>
This statement is much closer to the truth.

>We just need to tag images used under the various types of fair use. Stuff that
>would be fair use for non-commercial and commercial downstream users should
>have one tag and stuff that would be fair use for non-commercial use  but not
>downstream commercial users should have a different tag. 
>
Every case that claims fair use has to be considered separately. The 
question of whether the use is commercial is a factor, but you can't 
simply classify everything into commercial and non-commercial to decide 
whether it is okay. Tagging images would be of very little help to 
someone deciding whether their use of our images would be fair or not.

--Michael Snow
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