James wrote:
It's interesting for many reasons, not least
because it is explicit in
rejecting many of the misunderstandings people have used to object to
various fair use cases. Hopefully the explicit statements will resolve
those misunderstandings. Nothing actually new in the decision but it
makes some things really obvious (I hope! :))
Dream on! For me it does add a little more clarity to findings of fair
use, but for people who demand absolute certainty on the matter no
amount of fact will ever be convincing. Ultimately each and every claim
of fair use must be judged on its own merits, and that makes certainty
impossible.
First the case itself: a history of the Grateful Dead
group, used many
pictures of posters and tickets where a copyright holder had refused
permission under fair use and won in a relatively inexpensive summary
judgment.
Seven pictures, not "many".
"(noting that a work that comments about "pop
culture" is not removed
from the scope of Section 107 [fair use]simply because it is not
erudite)."
Sadly for those who dislike articles about popular culture, merely
being about popular culture doesn't remove fair use. :) You get to use
Beanie Baby pictures as well as the most admired modern art under fair
use.
It's an interesting comment in the way it broadens the view of
"cultured".
"nearly all of the illustrative uses listed in the
preamble paragraph
of § 107 . . . are generally conducted for profit ... Here,
Illustrated Trip does not exploit the use of BGA's images as such for
commercial gain. Significantly, DK has not used any of BGA's images in
its commercial advertising or in any other way to promote the sale of
the book. Illustrated Trip merely uses pictures and text to describe
the life of the Grateful Dead. By design, the use of BGA's images is
incidental to the commercial biographical value of the book."
For those who wonder about fair use and commercial reusers of content
placed in Wikipedia by its authors. Those commercial users also get
fair use and that was part of the original intent of fair use law.
While it is conceivable that what the downstream user does with the
Wikipedia's fair-use material may no longer be fair use, it would take
considerable effort on his part to do that. Changing the transformative
nature of the Wikipedia material would likely require the stripping out
of the Wikipedia context. Taking a photo reduced image and blowing it
back up to poster size will not restore the lost resolution in that
image. The nature of the copyrighted work is constant without regard to
who is using it. As long as the transformative nature of our fair use is
maintained the effect on the copyright owner's markets is unchanged. It
is also difficult to imagine how the downstream user could or would use
Wikipedia's fair use material for a purpose other than one of those listed.
I would be interested to see an example of a use of fair-use material
from Wikipedia become non-fair-use when applied by a downstream user
without the example being impossibly contrived.
"We conclude that such use by DK is tailored to
further its
transformative purpose because DK's reduced size reproductions of BGA'
s images in their entirety displayed the minimal image size and
quality necessary to ensure the reader's recognition of the images as
historical artifacts of Grateful Dead concert events. Accordingly, the
third fair use factor does not weigh against fair use."
Reduced resolution is helpful but do remember that you can use
whatever size is required. You do need to use sufficient resolution of
portion so the viewer can clearly see what you're trying to show!
We're already using suitable sizes, I think, so no change necessary,
except reassurance for those who wondered whether small images were a
problem if it was showing a small version of it all.
One argument that does not appear to have been raised about resolution
is that if the software must choose one representative pixel in a block
of 25 for a 4% sample that process is irreversible.
"the parties agree that DK's use of the images
did not impact BGA's
primary market for the sale of the poster images."
This should also be the case for almost all uses in Wikipedia, since
Wikipedia use isn't the same as the originals
The footnote on page 20 of the decision is also interesting: "To the
contrary, had the book been commercially successful – it was not – it
might have garnered interest in the original images in full size because
the reduced images have such minimal expressive impact. An afficionado
might seek more than a “peek.”" Our uses will often enhance the
marketability of the illustrated material. Maybe they should be paying
us to include it. ;-)
On to a bit that often causes confusion... loss of
revenue for the
copyright holder. Best summarized with the simple sentences
"[C]opyright owners may not preempt exploitation of transformative
markets. ... Since DK's use of BGA's images falls within a
transformative market, BGA does not suffer market harm due to the loss
of license fees." (because it's not entitled to them anyway). Since
use in Wikipedia will always be transformative, this is very unlikely
to be a negative factor for a use in Wikipedia.
Entitlement to license fees may very well be a product of negotaitions,
even if that legal entitlement did not previously exist. The point is
that a negotiated agreement cannot be used to reverse engineer a
preexisting condition. Such a rationale is no more valid than a proof
for the existence of God.
"Appellant argues that DK interfered with the
market for licensing its
images for use in books. Appellant contends that there is an
established market for licensing its images and it suffered both the
loss of royalty revenue directly from DK and the opportunity to obtain
royalties from others. ...
We have noted, however, that 'were a court automatically to conclude
in every case that potential licensing revenues were impermissibly
impaired simply because the secondary user did not pay a fee for the
right to engage in the use, the fourth fair use factor would always
favor the copyright holder.'
In Canadian law where the four factors are not a part of the fair
dealing provisions in the Copyright Act the Supreme Court has looked
favorably upon them. Moreover, in dealing with the fourth factor it has
determined that the burden of proving that a market hurt must lie with
the owner of the copyright since the user would not normally have access
to the owner's business records. There is more to market interference
than simply making an unfounded claim.
And that's the reasoning that's going to apply
to uses in Wikipedia as
well, for pretty much the same fundamental reasons: transformative use
and not primarily of value just because of the images, which are
accompanied by the articles that provide the main part of the content.
There does remain the problem of other countries' laws. For the most
part there appears to be a lot of wind and little fact for interpreting
the fair dealing provisions of these places. It would be interesting to
read court precedents on these matters rather than the simple parotting
of skeletal statutory provisions.
But once this legal aspect is taken care of, do
remember that it's
nice to seek to replace fair use images with more freely licensed
images as those become available. Recruit friends, take pictures on
vacations and around your town and encourage others to do so, so we
can gradually replace all those that can be replaced. It'll take a
while to get everyone on the planet working with us so we have done
this for everything but it'll happen eventually... meanwhile, remember
we're a wiki and successive improvement over time is one of the
fundamental principles of wiki use. We don't insist on perfect first
versions of an article and nor should we do so for images. But we
should encourage perfection in both over time.
Absolutely, but there will always remain topics that can only be
illustrated by fair use image.
Ec