Re: fair use through dual licensing?

Daniel Mayer wrote:

>Anthony DiPierro wrote:
>  
>
>>I've been thinking of the "fair use" issue, and I've come up with 
>>an idea which I'd like to run past everyone.  Why not have users 
>>dual license their text under the GFDL and Creative Commons 
>>by-nc (attribution required and no-commercial use, with derivitives 
>>allowed).   
>>...
>>    
>>
>
>We discussed the idea of GFDL/CC by-sa dual licensing scheme to exhaustive  
>length on Textbook-l (Wikibook's mailing list) and decided that it would 
>serve no useful purpose.  Why? Because compulsory dual-licensing like that 
>would prevent Wikibooks from accepting either GFDL-only licensed text or CC 
>by-sa-only licensed text.
>
OK, first of all, my suggestion was by-nc, not by-sa.  Big difference.  
As for being able to accept GFDL-only licensed text, is there that much 
out there to begin with (that's not already in wikipedia)?  Besides, if 
you're going to be technical, wikipedia is not allowed to accept 
GFDL-only (or CC by-sa-only) text currently, because of the fair use 
images.  If you're suggesting that Wikipedia stop allowing images other 
than those which are GFDL-compatible (mainly GFDL and public domain, but 
maybe BSD-licensed or CC by also), then fine, but that isn't being done.

>It is also would not possible to transfer the dual licensing scheme to third parties; they would have to choose to use either the GFDL or the CC by-sa. So we would be in the absurd situation where we could not by default re-incorporate improvements to Wikibooks' content by third parties! 
>  
>
There need be no transfer in the first place.  The text is licensed 
under the GFDL and the CC by-nc to all third parties.  If a third party 
was completely non-commercial, then yes, they could refuse to release 
their changes under the GFDL, but this seems like something very 
unlikely for someone to do.  On the other hand, a commercial site 
couldn't make changes without releasing those changes under the GFDL, 
because by-nc doesn't allow that for commercial use.

>The situation for already established projects like Wikipedia is even worse: 
>It would be impossible to get every person who ever contributed to Wikipedia 
>to agree to dual license their work under both the GFDL and the CC by-sa. So 
>any article with previous versions under just the GFDL could not be edited 
>ever again. Why? Because editing the article would create a derivative work 
>and since the previous version was under just the GFDL that derivative work 
>would also have to be under just the GFDL. 
>  
>
Right.  The derivitive work would still be under only the GFDL until all 
text was replaced with dual-licensed text.  I still don't see the 
problem, though it probably is because you're still using the example of 
by-sa, which is completely different than by-nc which was the suggestion 
I made.  Eventually, most of the wikipedia would be able to be dual 
licensed.  Those few parts which weren't could probably be rewritten.  
Maybe a few tiny sections would stay in the GFDL-only state.  It still 
seems like a much easier job than removing all the non-public-domain 
images (especially since many of them *can't* be recreated).

>This has already been suggested for file uploads. The idea is to require every 
>uploader to choose some radio buttons to select the terms of the file's use 
>(public domain, GFDL, other free license, fair use for educational purpose, 
>fair use for any use, non-commercial use only, etc). Then, downstream users 
>of our database could extract just those files that suit their situtation (a 
>commercial downstream user would not choose to include 'non-commercial use 
>only' or 'fair use for educational purpose' images, for example). 
>
>Antother idea would be to have a policy to /only/ allow files to be used under 
>the 'fair use' doctrine if, and only if all downstream users of the article 
>in whole could make a valid claim of fair use. Such a policy would also 
>exclude the use of any files covered by 'non-commercial use' licenses since 
>many downstream users will be commercial. 
>
>I personally like the first option. But that needs to be coded. 
>  
>
Doesn't seem very hard.  It's just a radio button and a column in the 
table.  Is anyone working on it?

As for the section option, it's simply not possible.  The GFDL, without 
invariant sections, allows you to remove all the text and just leave the 
image.  There's no way a court would find a bare copyrighted image to be 
"fair use" for a commercial entity.  So by including that image, you 
violate the GFDL requirement that *all* downstream users can modify 
their text under the GFDL.