Wed 23rd November 2011, 7:47pm
QUOTE(thekohser @ Wed 23rd November 2011, 9:02am)
Also, I found this especially interesting from the interview with Mundol:
Did staff members feel restricted in responding to the issues by the legal/policy imperative (of the Foundation as a service provider rather than publisher) not to directly address content?
Yes. Of course we do. It breaks our hearts to see copyvios in Wikipedia text and all of us – both in India and back at the Foundation office in San Francisco – want desperately to go in and take them out ourselves, and to join in the large-scale cleanup efforts. Unfortunately, the best advice of our legal team is that we shouldn't do that, because it would be interfering in the content creation role, and could compromise our "safe harbor" immunity. These are constraints that we abide by as a result of working with / for WMF.
Isn't that an incorrect interpretation of Section 230? By knowingly harboring copyright violations that are already within their view, isn't that more likely to ring the alarm bells? It could be demonstrated that Wikipedia establishes an environment where copyright violations are not removed when detected.
They are probably correct. That is, if the WMF does intervene to remove what is loosely called "copyvio" -- which may not be actual copyright violation, i.e., not illegal to host in the absence of objection from the copyright owner -- then they might be considered responsible for the content when they fail to intervene. They become the "publisher."
By being hands-off, and only intervening if there is a take-down notice, they are indeed in the "safe harbor."
What gets really nuts is the "free content" restriction, i.e., a policy on limiting "fair use." Material that would be perfectly legal is contrary to policy. In theory, each wiki can set up its own Exemption Doctrine Policy, but wikis have mostly interpreted the Foundation position on this in the most restrictive way. For example, the goal of the Free Content policy is that others can republish without expensive review. That's why they require a specific fair use template for each use of an image. So it can be found by machine and the image yanked. But that leaves a hole, and then a republisher may have to go to some expense.
Now, if the republisher was non-profit, with a similar purpose ("free knowledge"), they could assert the same fair use, so this policy only impacts for-profit republication. In other words,the Foundation policy is serving for-profit republishers, on the backs of the users, who are required to forfeit usage or find "free substitutes."
The case I found at Wikiversity was photos of users on their user page. This is really not part of the "content," it's a community issue, community building. The purpose of the photos is definitely legal for fair use: a user puts up their own photo. They do not want to release the photo for general publication. The specific example that came up was a photo of, how shall I say this, a "babe." Does she want her photo published everywhere, with no further consent needed? So she, apparently instructed by her brick-and-mortar instructor, claimed ownership and "fair use."
The Wikipedibots claimed violation, and the image will be removed, if it hasn't been already. Surely she can fine a "free equivalent." This is mindless policy, serving what?
So all those users mangling content where there is a legitimate claim of fair use and no actual copyright violation is at all likely, are serving what? Not content, that's for sure. Photo of professor in article that mentions the work of the professor. Photo taken from university web site, put up under "fair use." Image not full resolution, really no issue at all, source drives some level of traffic to university web site.
And editors waste time arguing over whether or not this is an "educational purpose." After all, the text is still the text without the photo. As if "educational purpose" did not include the subtle aspects of pleasing and attractive presentation. "Dull and boring" is hardly educational. Unless, of course, you are a Wikipedian at heart, focusing on technical compliance with mindless restrictions, created to ... what?
*Not* to protect the WMF. To protect for-profit re-users. Who might that be?Why does "seeing copyvio" "break their heart?"
If the "copyvio" improves the function of the article, it's serving the educational, non-profit purpose, especially if it's credited. If it's not credited, surely these staffers know what to do. And if it isn't improving the resource, it can be taken out without any fuss about "copyvio," which is often a cover, anyway, for "I don't like this."
The copyvio police often confuse plagiarism and copyvio. And don't look for win-win solutions. And frequently don't consider fair use, if a user hasn't properly set up the templates.