QUOTE(lilburne @ Tue 31st January 2012, 6:06pm)
QUOTE(Abd @ Tue 31st January 2012, 10:21pm)
Anyway, what the WMF policy does is to make the wiki content relatively safe for *commercial re-users,* not for people engaged in providing free content to readers. Minimizing fair use content would, then, save cost for these commercial re-users. As applied to that student photo, though, this was user space. Fair use in user space is generally considered prohibited by the WMF policy. Why?
You've swallowed a whole bunch of crap there.
Really? It was pretty tasty. Must be some deficiency in my diet.
The CC-BY-SA license is not safe for *commercial re-users*. Just because something is labelled as such doesn't make it so. I've seen a large number of news agency photos uploaded to flickr with CC licenses on them. Vast amounts of content scraped from the web uploaded as CC. No company that relies on copyright content will simply take something from WP at face value, they'll all want to apply due diligence and have some traceability on the license.
A large re-user of content could easily claim that requiring a re-user of massive Wikipedia content to research each and every claim could be an onerous burden, one which a court might be likely to discount. Essentially, if it's on-line content, a re-user could claim that it was an innocent victim of a Wikipedia error, and its liabillity would likely be limited to take-down on notice. Even if for-profit.
You may have seen this and that and it proves nothing. Essentially, false claims exist. So? If you are going to invest in, say, reproductions of images from Commons, spending thousands of dollars on each image, you'd better check the licenses. But if they are print-on-demand, your investment is minimal, and if it turns out that the license claimed by the WMF was defective, so you stop offering it. Big deal.
The point has been missed. As it stands, a re-user still has some work to do, if copying Wikipedia content. You are aware, of course, that there are companies which do this, for on-demand publication of books? They don't maintain stocks of the books, so they are quite safe by relying on take-down, which could be a serious problem with a publisher who has invested in real print, normally inventoried. They could claim injury by Wikipedia, but I think that would be laughed out of court. The issue, though, is can they *rely* on the Wikipedia claim of license? I'd say, probably, but at their own risk. I.e., if they invest in something based on that claim, they could lose their investment. They would lack the intention to infringe that would create serious copyright problems, they'd probably have sufficient protection against gross neglect of duty, as long as they didn't neglect obvious problems.
The work that still must be done is to find the required "machine-readable" fair use tags, and remove those items. Hence the goal of minimizing the number of fair use claims, of requiring editors to put effort into finding free use images, for example, even though fair use would be fine, legally, for Wikipedia. It's harnessing editorial labor for a goal that only benefits commercial re-users. Non-commercial users could make the same fair use claim, generally. And I fail to see why user space doesn't allow any fair use, it's claimed there are no exceptions, though obviously there can be educational purpose in user space material. On Wikiversity, user space is sometimes similar to student work in Universities, and fair use, for educational purpose, can be quite broad, sometimes.
Things get get out of hand very quickly like when some one lifted and sold Rebekka Guðleifsdóttir photos. The company that was at the centre of that storm was inundated with death threats and within a few days was out of business. https://www.google.com/search?q="Only+Dreemin"
Now whether they took them from flickr themselves or were genuinely sold a pup the end result was that they were blamed and they are no more. Then there was the Lara Jade photos that were used for an adult film cover art, and where the company said they got them from some free content upload site. Within in hours of that hitting the street there was no website in the NA or Europe that was prepared to sell or advertise the film:
These are not relevant to the issue, at all. They are isolated uses, instead we are talking about massive content with at most a few odd misrepresentations. Anyone who is selling individual photos or investing in such materials had better do due diligence. We are talking, instead, about massive content usage, where the labor of checking each and every license would essentially blow the project out of the water.
And if not for protecting that kind of use, why is fair use being restricted far more than legally required? We are not just talking about a small hedge around the law, we are talking about much more restriction
Despite the intention of CC no business is going to use CC content without verifying the license with the content creator.
That would apply to particular pieces of content where a business is making a substantial investment in the publication of that particular material. It would not apply to massive use of thousands of images, en block, where there is explicit licensing stated and supported, published by an ... ahem ... reputable organization. I remember, years ago, books of images for use by publications. We published all kinds of things using those images, and we never checked the individual licenses. Yeah, we'd have been seriously pissed if we had to dump an issue of a magazine, because the book publishers had screwed up. But nobody ever checked those licenses, because the risk was very low. More likely, if there were a license defect, there would have been a negotiation with an owner over a fair price. Cheaper than dumping a print run!
I'm thinking about how a court would be likely to look at it. Note that we are, by the conditions of the problem, not talking about massive and blatant copyvio. We are talking about material that is either claimed as free use, or that is explicitly fair use, i.e., *not* free use. The WMF policy requires machine-readable tags for fair use content. There is a reason for that, to allow semi-automated removal of the images. Which then may create some level of work for the re-user, every such removed image would have some significant cost, unless it's just replaced with, say, a link to Wikipedia.... that would raise some issues of its own, and I'm not addressing them.
I'm just pointing out that the WMF policy is not designed to improve the project for readers, nor for providers of free content, who can presumably make the same fair use claims. It's designed to improve it for commercial re-users. Under the very attractive and "good" name of "free use." Hey, aren't we all for "free use"? Legal free use, I mean.