[Foundation-l] Litigation costs

Wed Jan 9 00:27:07 UTC 2008

Thomas Dalton writes:

> Would defending one case reduce costs of future cases by virtue of
> establishing a precedent, or will it still cost enormous amounts even
> if with a precedent?

It depends on far too many factors to list here.

> However, your question makes me wonder.  Is your concern about fair  
> use
> rooted primarily in concern about our telling reusers what is fair  
> use?

No. It's concern about our reusers getting sued.

Delirium writes:

>  Unless I'm missing some recent change, historically copyright holders
> have been very wary of pressing lawsuits against educational and
> non-profit entities in cases where fair use might be a plausible
> defense, for fear of losing the case and establishing a strong
> pro-fair-use precedent.

Historically, there's only been one non-profit entity with a top-ten  
website. In recent years, copyright holders have been more aggressive  
at initiating litigation in response to the perceived threat of  
digital reproduction and redistribution.  (Aside:  between 1999 and  
2005 I worked on digital copyright policy in Washington.)

Anthony writes:

>  As the only one who mentioned the DMCA in this thread I'll pretend
> that question was for me.

It wasn't, though I'm happy to respond anyway.

> Besides the obvious argument that a free
> encyclopedia should contain free content, I think such mixing of free
> and non-free content goes against the spirit if not the letter of the
> GFDL.  But I'm also for being honest about the reasons that content is
> removed.

I think this is an important consideration. We want the content we  
make available to be maximally unencumbered (with that lack of  
encumbrance enforced by the GFDL or similar license).  "Fair use"  
content doesn't meet that criterion.

Please understand that I am resolutely in favor of fair use, of fair  
use/fair dealing doctrines, and even of occasional use of such content  
on our projects.  But we can't pretend that the issues regarding  
protecting the Foundation and its projects and the communities we  
serve are the same as straight-up issues about copyright and fair  
use.  There's some overlap, sure, but the issues raised are different,  
depending on context.

As any copyright lawyer will tell you, context is pretty much  
everything in copyright law.

--Mike