[WikiEN-l] A very interesting recent "fair use" case ruling

Fri Jun 23 02:21:57 UTC 2006

On 6/21/06, James <user_jamesday at myrealbox.com> wrote:
> This aspect applies to almost all uses in articles in the work called
> Wikipedia by its authors. Whether it's a baseball card, poster, album
> cover, book cover, mural, painting or postcard, it's not an
> encyclopedia article and the use is in one is transformative and
> strongly favors fair use.

Exactly. Of course I think taking it *too* far would be dangerous but
it does mean we can be more confident in instances where we are
clearly being transformative by putting something into an encyclopedic
context.

The one problem I have with this is that I don't know where the line
between "moving contexts is transformative" starts and where one gets
away from things like the Seinfeld case, where the context is
definitely different (TV show to trivia book) but it was found to be
infringement because it cut into the copyright holder's ability to
make a trivia book in the future. Obvious one case does not simply
trump another case, but in any event this is a nice assurement that
"encyclopedic use" has plausibility as transformative.

> You don't need to have specific justification for each image use -
> readers know from the context that you're illustrating your point (but
> we should still say so in the fair use explanation, because it's
> prudent to do so and remove doubt about our intentions).

Additionally having a fair use justification is also meant to scare
off cheap trouble by making our case look strong from the beginning
and demonstrating an awareness of the legal issues involved.

> 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.

We've had a policy for some time that fair use images should be as
small as necessary to do the work they need to do for the article,
which is pretty much what this decision seems to indicate is a good
idea. It's nice to see it in writing since until now there's been
nothing to point to specifically in this respect (that image size had
some relation to proportion of the work used) except for the _Kelly_
ruling, which is so specific to automatic search engines as to be
plausible irrelevant.

As for the issue on fees: the fourth factor is always an "after the
ruling" factor anyway (if the first three point towards it being
"fair", then it doesn't matter). I have always thought it an important
consideration despite the law since edging into someone else's profit
is a good way to call unwanted attention to yourself.

> 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.

Well, in this case. Which we shouldn't over-exaggerate the importance
of -- there are plenty of other cases which have contradictory rulings
to this very liberal one. But in any case it could definitely be
something to use towards shoring up wording and specifics of certain
policies. And hopefully ward off paranoia.

> 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.

Agreed of course. And "fair use" should be minimized where possible on
the account of re-users in other countries of course. But in terms of
Wikipedia's current fair use situation, this is a very heartening
ruling.

FF