Re: FDL attribution by reference was Re: [Wikipedia-l] FDLused to stifle distribution of articles

----- Original Message ----- 
From: "Daniel Mayer" <maveric149-/[email protected]>
To: <[email protected]>
Sent: Saturday, November 29, 2003 8:28 PM
Subject: [Wikilegal-l] FDL attribution by reference was Re: [Wikipedia-l]
FDLused to stifle distribution of articles


> Alex wrote:
> >Who is the "they" that Ulrich Fuchs is talking about.
> >Certainly he can only take legal action against anyone
> >who uses his articles, but he is not authorized by
> >Wikipedians to sue for them, is he?
>
> Germany has some odd trademark laws in this regard and may also have
similarly
> odd laws for copyright. A while ago a German firm sued the German makers
of
> the open source vector illustration program KIllustrator for trademark
> infringement on behalf of Adobe (the makers of Adobe Illustrator). But
Adobe
> had no idea that this was going on and in fact didn't want the bad
publicity.
> IIRC nothing really happened except that KIllustrator was renamed to
Kontour
> and the lives of the German KIllustrator coders were disrupted.

The problem with trademark law is that you can have derivative claims for
dilution
and things like that (in the US that is the Latham Act in federal law) such
as
passing off. These are not merely claims against the trademark owner, but
claims
that also can acrue through competition problems, i.e. a distributor cannot
distribute
a product because someone else is confusing the potential buyers with a
similar
name. Copyright does not generally follow this kind of logic.

> So if a similar law applies for copyrights in Germany, then anybody can
sue
> anybody else in Germany for copyright infringement on the unknowing behalf
or
> consent of the copyright holder.

I am no expert on German law but the statute makes it clear that the author
has
a claim for copyright, not third parties:
http://www.iuscomp.org/gla/statutes/UrhG.htm#97

Articles 113/114 only allows for an exception in three cases:
http://www.iuscomp.org/gla/statutes/UrhG.htm#113
and this is defined in relation to "exploitation rights"
http://www.iuscomp.org/gla/statutes/UrhG.htm#31

What I can glean out of this (without reading any case law interpreting
these provisions)
is that someone could bring a suit if there was an a monetary claim. The
problem I see
with Wikipedia is that the authors have basically waived the money claims.
it would seem
that the only thing that could be enforceable is some moral rights
provision, that the author
be acknowledged. In that case it would require just a link back to
Wikipedia, as Wikipedia
does acknowledge the authorship rights.

> If true, that seems rather dangerous to me.

But since WP allows for the work to be distributed free does not article 24
apply?
http://www.iuscomp.org/gla/statutes/UrhG.htm#24

It would be useful to hear from someone who at least has some direct
experience with
German copyright litigation here (if not I will try and find some treatise
in a law library
here) or who could point us to some useful online resources interpreting the
Urheberrechtsgesetz, UrhG.

Alex756