On 5/19/06, Bryan Derksen [email protected] wrote:
Erik Moeller wrote:
While I respect Brad's opinion very much, we need to be very careful that "because I've spoken to Wikimedia's lawyer about it" does not become equivalent to "end of discussion". The only question is where, and with whom, such discussion should take place. I think wikien-l or DRV are good places to start in most cases.
This is the situation I'm getting concerned about here. I don't really care about the specific image or its subject myself, I stumbled into this completely by chance, but I am a little disturbed by how much careful and detailed work went into justifying its inclusion only to be trumped with completely unsupported "the artist doesn't like it" and "the Foundation lawyer doesn't like it" assertions. How am I supposed to know what's valid fair use under these circumstances?
I think the lack of transparency -- which is likely for legal reasons -- is an unpleasant aspect of the legal end of these sorts of decisions. In the end, the question is not "is it fair use under US law" but "is it worth our invoking the fair use clause in the face of an unhappy owner." I think most lawyers are going to go with "no" in almost every case, because 99% of a lawyer's job is to keep you out of court in the first place.
I'm not necessarily opposed to this. I think though that we should fully articulate that our "fair use policy" is *not* just about being within the law, but about avoiding court in the first place. It does this *by means of the law* (if we comply with the law, then the copyright holder will probably NOT risk sueing us), but at the same time this approach makes it clear that there are non-legal aspects (i.e. an angry copyright holder) which would dictate policy actions. It also would dictate a very conservative approach to "fair use" -- one which would guarantee all of our "fair uses" are so far within the law that even thinking of a lawsuit would be pointless. But I understand that a lot of people feel differently on this.
(Though, you have to admit, O RLY? v. Wikimedia Foundation would be a really funny case citation.)
FF