Re: Re: [WikiEN-l] Fair use and "Bolivian Gas War"

--- "Alex R." <[email protected]> wrote:

> While we talk of it as a defense, it is true that
> the burden of proving infringment falls on the user
(and why > it is use specific). 

I see. Sorry if I misinterpreted you. But it does
indeed seem like your argument comes down to a degree
of reasonability -- a judgement of the severity of the
infraction -- considering the reality of how easy it
is copying things on the internet.  

> If it does come up
> in a suit, the argument would be that it is not
> infringment because it actually enhances the value
of the
> original work and it would be ridiculous in the
hyperlinked
> information universe that we now inhabit to prevent
> these kinds of references.  

How broad is this? Obviously with each case -- just in
case -- there is need of better documentation -- and
this is what Brion is setting up now.  Would it be a
good idea to enforce a linkback to source policy? 

Let me read your comments further.... ;)

> Maybe the argument can
> be explained by analogy with footnotes. No one would
> claim that the title of a book being used in another
> book is a copyright infringement even though that
title
> is protected by copyright, would they? 

Ah.

> If the image is 
> enough to reference the original work then it is
> really just like a footnote and if someone wants to
go back
> to the original work they can easily do that (I
> think this argument could be used as a counter in
the
> opaque copy issue that might pop up in GFDL). Of
course
> this only works if there is a transparent link back
to
> the original work somewhere on the internet, it does
not
> apply to fair use that comes from off line sources.

Ok.

> It is the same with the border between fair use and
> the public domain. Every work has stuff in it that
> is in the public domain (not in the strict
definition
> that we use such a term when referring to works that
have
> expired copyright but the larger sense of the word).
> The question is what is in the public domain and
> what is not. 

Yes!  Also -- Is FDL "public" enough? 

> If an image is of something in the public
> domain (such as a protest, a public event) and the
image is
> just a mechanical rendering of that event, person or
> object (we use this argument often with old
paintings) the
> claim to copyright is either non-existent or so
minimal
> that fair use covers it broadly. 

Excellent explanation.

> If someone copies an image from a book, yes then
> they cannot link back to the original site (because
it is
> off the net) but if an image is reproduced from an
> internet
> site and there is an active URL back there.

Urls in books are common, and all things considered
should be good enough for print, in terms of
attribution.

> I do not agree with the statement that Wikipedia is
> not a conduit. 

Then we disagree.  Consider the nature of writing
articles with some non-controlled / lightly required
link-back versus the nature of something built
entirely upon links and creating filtered searches --
through Google you are going to a site -- not going to
read Google's written and locally hosted
reinterpretation of that site.

>Everything posted on Wikipedia is owned
> by the people who post it (an argument that one
should
> not be allowed to post anonymously, but only
> pseudonoymously or with their identity revealed). 

And its also an argument for WP to have an obligation
to see that such postings do not constitute a severe
violation.  
If you've talked about the identity part with the
Chairman --no doubt (judging from some of his previous
posts) he does not like the idea of requiring identity
validation.  I dont either, and nor do most of the
anons and quasi-anons here.  We talked a bit about the
keeping of security logs.  (Yahoo now says at the
bottom of each page that it keeps user's information
-- Google has long done this, and someone set up
"googlewatch"
to explain some of these issues -- hirings, personell
with NSA clearance, etc. 

>They give WP a license, which is the GFDL. They can
use >their contribution for any other purpose they
wish. In terms of images the reference to the original
image is there: are they >taking the image refrenced
from WP or are they going back >to the original
source?

Good point. The sites they reference may be infringers
-- and otherwise they often may have legitimate
copyright attached to them --Google gives warning of
this.
 
> The argument is that they are going back to the
> original source if it is on the internet. There is
always a link > to that source, so there is only one
generation of copying 
>  going on (anyway what does generations of copying
mean 
> in the digital realm, often it has no meaning, a
digital copy is > identical to the original).  

This was the rather open reasoning that I put out a
while ago -- Some were rather critical -- but I'll
reserve comment.

> If they did not expect people to copy it
> on the net they should have never put the image
there. So
> in essence this argument (which I have not brought
up
> before) is that the use of the image is encouraged
(which is
> why they have those sophisticated image protection
> schemes when they are trying to assert some right
> not to copy).

This might be a bit far-fetched, even for my taste --
but If WP ever faces a suit, and you are defending --
you can try this one out if you like. ;-)

> Why should someone be penalized for activity that is
> possible and even encouraged as it is part and
parcel of the
> technology? That might also be seen as an undue
burden 
> upon free speech.

Excuse the cliche -- This seems WAY too much like a
Napster defense. 
<info>The issue there was that Napster was a business
trying to profit from the work of others --they
deserved to be shut down, and were.  Now of course
there is no centralized "napster" and the RIAA targets
individuals, via their IP address --to make examples
of them.   Bittorrent technology requires a central
server called a "tracker" to connect users with each
other to exchange file parts.  The RIAA has used DOS
attacks and other non-legal methods to hack tracker
sites, while serving these trackers and their host
providers with cease and decist notices.  I dont know
of any lawsuit made against a tracker -- the
technology itself is perfectly legal --the techs even
considered it for a database download. 
</info>

<thought>
The point is that there are two possible targets.  If
WP does not record and provide access logs --WP itself
becomes by default a target.  I will venture to guess
that for one reason or another, WP will come under DOS
attacks (like Indymedia, and Al-Jazeera)  in the near
future as well. 
</thought> 

The legal question that remains (in line with your
comments) is whether an NPO will be judged by a
different standard than Napster, and will that
standard be favorable to WP... 

Sincerely,
~S~




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