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CZ:Proposals/Non-comprehensive fair use policy

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This proposal is presently driverless. Why not become its driver?
You can sign up on its proposal record, which may be found on the driverless proposals page.


Driver: None

Complete explanation

VERY IMPORTANT DISCLAIMER

This policy is a citizen-generated attempt to allow certain contributors the freedom to upload certain classes of media under an understanding of U.S. laws governing fair use. Please note carefully that the laws of some countries regarding the equivalent of fair use may be inconsistent with U.S. laws, and may even be non-existent. All contributors are responsible to follow the laws in their own countries over and above this policy, are legally responsible for their own uploads to the Citizendium regardless of their country, and should carefully study all pertinent matters and/or seek legal advise before proceeding.

From 17 U.S.C. § 107. Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

This is a proposal to allow six categories of media to be used under U.S. fair use on Citizendium. The six categories of materials encompass the most commonly used materials under fair use and are widely considered fair use without controversy. Allowing these now will free contributors in a needed way related to both current and future articles. This is not a comprehensive fair use policy, which can be accomplished later, by adding categories to this proposal, for example.

Stephen Ewen is driver of this proposal, which has been carefully thought through for over a year. Please do not change the proposal text without the driver's agreement. The proposal will undergo some refinement before reaching the Executive and Editorial Committees, and all along the way people will have opportunities to discuss things, make criticisms, counter-proposals, etc.

Category One: Coats of Arms, flags, emblems, seals, etc., of administrative entities, political authorities and institutions

With the following caveat:

  1. The image as uploaded should be the minimum size needed to display the needed information. Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless.

Category Two: Currency, stamps, vehicle license tags, and closely similar

With the following caveat:

  1. The image as uploaded should be the minimum size needed to display the needed information. Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless.

Category Three: Company logos, trademarks, copyrighted packaging, and closely similar

With the following two caveats:

  1. For logos and trademarks and closely similar, the image should be of very good quality yet as uploaded should be the minimum size needed to display the needed information. Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless.
  2. Copyrighted packaging and closely similar images as uploaded should be the minimum size needed to display the needed information. Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless

Category Four: Software, website, and video game screencaptures of the software, website, or game itself

With the following caveat:

  1. The image as uploaded should be the minimum size needed to display the needed information. Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless.

Category Five: Book, periodical, and disc covers, and promotional posters, comics/cartoons, and closely similar

With the following caveat:

  1. The image as uploaded should be the minimum size needed to display the needed information. Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless.

Category Six: Audio and video clips and video screen captures

With the following three caveats:

  1. Audio clips should be as small as possible in both length and resolution to convey information. As rules of thumb, use "the 10% and not the heart rule", and don't use song clips over 100 kbbs. For example, in an article about a musical band, you could include approximately 10 second low resolution clips of songs, but if there is a certain section that is the main draw toward people purchasing a certain CD, its "heart", you should be extremely careful about including that clip
  2. Video screen captures should be used instead of clips, whenever possible, and the image as uploaded should be the minimum size needed to display the needed information. Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless
  3. No encryption mechanism may have been subverted to make audio and video clips (which is illegal in the U.S.)

Caveats

  1. Items may appear in articles only for uses consistent with U.S. fair use doctrine
  2. Items should be obtained from official sources (the originating entity), but may be obtained elsewhere if otherwise unavailable and faithful to the official items
  3. Contributors are responsible to become familiar with U.S. fair use doctrine before uploading materials to use under fair use, and will be personally legally responsible for their own uses of fair use materials.
  4. The laws of some countries regarding the equivalent of fair use are not consistent with U.S. laws. Contributors should first follow the laws in their own countries. Other contributors where this may not be an issue are probably willing to upload fair use materials for others, in that case
  5. If an article is requested to be under dispute resolution, fair use materials should be commented out with <!-- [[Image:Fair use item.jpg]] --> tags until the issue(s) are resolved.
  6. All materials must have been prior published.
  7. The resulting policy should in no way be construed as legal advice

Reasoning

We have current articles that are going to continue to be handicapped without this. Led Zeppelin is the most recent. As well, some contributors have expressed that they are off-put about writing because we lack a policy that permits them the uses stipulated in this proposal.

Q & A

Feel free to add questions directly to this section, or just ask them in the discussion area below. As issues are raised and addressed there, they will be summarized here in this format and the material incorporated in some way into the final policy page.

1. Why are there "very good quality" stipulations in some places but not others?
For instance: It's very important to befittingly depict entities, but publishers get bootleg-worry at high-resolution book cover images. That's the principle.

2. Why didn't you include "promotional photos"?
These are made available under an implied license. That's the point of them. Fair use is not needed. For commercial reusers of CZ content - that's a matter we need not consider, but they will.

3. What's this "and upload and use only materials they will be personally responsible for using" "and will be personally legally responsible for their own uses of fair use materials" all about?
The basic idea is that contributors are legally responsible for their own uses of materials uploaded under fair use, whether uploaded by themselves or another. The principle is no different with any other type of media, or the writing of text for that matter, it just bears stating here explicitly.

4. What's the point of removing fair use images from articles requested to be under dispute resolution?
In the legal world, offense at use is always the precursor to challenged fair use. This helps avoid both.

5. What about contributors writing a "fair use rationale" for each upload, as they do at Wikipedia?
It's superfluous and the rationales are redundant. The Upload Wizard will automate a brief, standardized fair use rationale with each upload.
6. What's with the "closely similar" part?
It's not reasonable to try to list every possible item that would closely fit into each of the categories where that appears. This doesn't mean there will be very many "closely similar" items, just that we cannot come up with a comprehensive list ahead of time.

7. What if there is a dispute about whether something is "closely similar"?
Something closely similar will appear so on its face. For example, it is immediately evident that a VHS video cover fits into "Category Five: Book, periodical, and disc covers, and promotional posters, comics/cartoons, and closely similar". If something is not closely similar, it will be clear common sense to other contributors. In this case, you should place the {{speedydelete}} on your own upload. Any editor or the Media Assets lead may request a fair image be deleted, Constables may delete them on their own recognizance if it would be uncontroversial to nearly all constables that the image is not of the category it is said to represent, and the benefit of the doubt should generally defer to the uploader. All deletions may be appealed.
8. Add question here.
9. Add question here.

Implementation

Implementation will be done via a new fair use section of the CZ:Upload-Wizard, and simple, accompanying templates corresponding to the above six categories.

Illustrations and examples will be added to the final policy page.

Discussion

A discussion section, to which anyone may contribute.


The "personal responsibility" line has to go, for all material on CZ is the responsibility of CZ, and not any one individual. (In other words, CZ is the legal person, not some author. -- CZ is not a service provider unde copyright law, it is the legal person responsible for all content here.. Richard Jensen 14:10, 18 February 2008 (CST)

This is just a personal statement: I for one will have nothing to do with images if I've got to agree to taking on personal responsibility. I'm not a solicitor and won't put myself in a position of being legally responsible for complicated issues the ramifications of which I can't possibly fully understand. Aleta Curry 15:44, 18 February 2008 (CST)
no fear, Aleta. CZ is a US federal-government-approved not-for-profit educational corporation and it is the "legal person" responsible for all the images and text. Steve misread the copyright law and believes CZ is a common carrier, like the cable company, that transmits private messages without altering them. Richard Jensen 16:04, 18 February 2008 (CST)
the rules say Please bear in mind that, merely because you are the driver of proposal or issue, you do not therefore have the exclusive right to determine the shape of the proposal/issue. That should be determined first by negotiation with other interested Citizens. Negotiation is required--this of course is how CZ does business, by collaboration not fiat. Richard Jensen 16:25, 18 February 2008 (CST)

Moving along to that negotiating, let me clarify the personal responsibility issue in the form of a simplified question. Does everyone want Citizendium to be a publisher and bear legal responsibility for images uploaded by contributors, or should Citizendium be providing contributors with a publishing service whereby they bear legal responsibility for their own contributions. If the former, I am against allowing fair use on CZ and withdraw the proposal. As to the contents of the DMCA, people can read it and research it and make up their own minds about what it says just fine, without any of us telling them what to think about it. A helpful way to view "personal responsibility" may be this: If Person X publishes a book with Publisher Y, responsibility for what is published does not transfer from Person X to Publisher Y. Person X is still responsible for what he or she published. That's really all this caveat is saying! Stephen Ewen 16:29, 18 February 2008 (CST)

the author of a book takes full credit and responsibility for it and no one can change the book without his permission. This in not how CZ operates at all. Anyone can change anything, and CZ as a legal person is the responsible party. (All encyclopedias work this way, and all authors sign legal contracts to that effect.)Richard Jensen 16:43, 18 February 2008 (CST)
I think the propsal is a good one (except for the two words) and if Steve does not want to be the driver of it I will volunteer to be the driver. Richard Jensen 16:33, 18 February 2008 (CST)
Let me again clarify. Let's say you upload the logo of the Coca-Cola company, and place it in Coca-Cola Company, which has developed into a nice and neutral article. Then you go on a two month vacation. The next day someone comes along and inserts libelous material into the article, including that the logo itself was stolen by the company. A Coca-Cola rep sees it and naturally reacts. You are not responsible for that other person. They are responsible for themselves, their use of it. You are responsible for YOUR use of it. I tweaked the wording of the section to avoid the interpretation that the uploader will be responsible for others' uses of the items. Does that clear up the intent here? Stephen Ewen 20:06, 18 February 2008 (CST)

Steve, the reasoning section does not provide any reasoning for the details of the various rules. That's all right, I suppose--although I like everything to be spelled out and defended, myself, as I do myself perhaps to a fault--but at the very least it would be good if you would offer to defend, in that reasoning section, any particular point that anyone has a question about. Another good item to put in the reasoning section would be any general principles or rules or patterns you had when producing the details of the policy (and why those principles are correct). Go on into this in the section titled, "Let me head-off some possible questions"--why isn't that stated in the reasoning section? --Larry Sanger 21:43, 18 February 2008 (CST)

the new revision and will be personally responsible for their own uses of fair use materials satisfies me and I am now ok with the whole proposal. Richard Jensen 23:07, 18 February 2008 (CST)
Under "General Caveat 1". replace "Contributors are responsible to become familiar with U.S. fair use doctrine before uploading materials to use under fair use, for example, by reading http://www.copyright.gov/fls/fl102.html" with "Contributors are responsible to become familiar with U.S. fair use doctrine before uploading materials to use under fair use, for example, by reading Fair use" CZ has a clear summary. The government document mentioned is not useful for individuals or CZ authors. Richard Jensen 15:53, 19 February 2008 (CST)
We really should give four or five links there. We need not set them in stone. The point is to facilitate people to self-educate some. Stephen Ewen 16:08, 19 February 2008 (CST)
Resizing of images is a separate question from fair use. It depends more on the format and content of an article. For example the same image of Obama may be reduced smaller in the overview 2008 election article and be larger in his bio article.Richard Jensen 23:33, 19 February 2008 (CST)
Well, it is not at all a separate issue, but for the reason you stated we don't want images as uploaded to be resized too small. I'll adjust the wording to account for this issue - tomorrow, though. Stephen Ewen 23:54, 19 February 2008 (CST)

It is not reasonable to ask individual contributors to know the copyright law of possibly three countries -- the one they live in, the one from which they are accessing the internet at the point of contributing, and the USA. Therefore General Caveat 2 has either to become BASIC PRINCIPLE 1, or go completely. This is not a US publication, and many Citizens are from many difficult countries with ghastly copyright laws. I suggest that it is better for CZ to assure compliance with US law. In a way, the real-names policy is a hazard here, because people can be traced. CZ has to protect its contributors, not ask them to accept liability for their free labour! Martin Baldwin-Edwards 03:33, 20 February 2008 (CST)

Sounds like semantics, to me; thus, they are all just "caveats" now. and its entirely reasonable to expect people to know the laws of their country, obviously, and it is entirely reasonable to expect them become familiar with U.S. fair use doctrine. Welcome to the Internet, although it is not different than if I travel to, say, Canada, where I am expected to know and obey the laws there. And since CZ's servers are in the U.S. and a certain state, CZ is under jurisdiction of the laws both. And whatever we do in life (alright, there are a few exceptions, like doing things under force and obeying an order of a superior officer in good faith) we are legally responsible for it, so how is CZ different? Its not and cannot be. There is no diplomatic immunity for contributors to an Internet site. Stephen Ewen 04:17, 20 February 2008 (CST)
Stephen: this is not semantics. I repeat: it is not reasonable to expect people to know complex copyright laws in two or more countries. IT has nothing to do with diplomatic immunity: here you show your own lack of knowledge. It is a matter of applicable law, and since this is not resolved on the internet [after all, nobody even bothered to try] there are possible serious vulnerablities for CZ contibutors with real names. It is not like WP, where everything is anonymous: the realnames policy of CZ requires CZ itself to accept some responsibility for protecting its unpaid contributors. At the very least, we should put the General Caveat 2 as a Basic Warning for those people who do not live in the USA. I realise that those of you residing in the USA do not care, but the rest of us do. Martin Baldwin-Edwards 04:33, 20 February 2008 (CST)
Well, if I lacked of knowledge on this matter and didn't care, then why is this caveat already in the proposal? You are arguing about placement of the material. Sure, we can preface the entire final policy page with a small warning notice up top. Stephen Ewen 10:13, 20 February 2008 (CST)
Only US law applies to CZ, whose servers are in the USA. The law of Canada or France etc does not apply here. All the legal responsibility is born by CZ, and not by any individual, and there are no legal opinions or court cases otherwise. Let's not scare people, please, with false legal arguments. Richard Jensen 11:10, 20 February 2008 (CST)
When someone does an activity in their country, they are under the jurisdiction of that country's laws, and no where does legal responsibility for one's online activities transfer to the website of those activities--very, very obviously. Caveats #3 and #4 are accurate and needed. Stephen Ewen 11:28, 20 February 2008 (CST)

I wish it were so, Richard. As things stand, there are multiple applicable laws for all internet activities. These are not "false legal arguments" at all, and Richard's comment highlights the need to explain this VERY carefully to everyone. So, to explain it to Richard: a citizen of country A, who is normally resident in country B, but is on holiday in country C and wishes to add something to CZ, is conceivably bound by at least two legal jurisdictions [ie country C and the USA], but might also be held to account in countries A or B. Very messy.

Taking a simple case: I have absolutely no idea what [if any] fair use provision applies in Greek law. It is possible that there is no fair use provision. Existing copyright law here is an arcane mess, and at this moment rarely enforced in Greece. This does not mean that I cannot be sued for breach of copyright: it just means that I have no idea what my obligations and rights are. Under such terms, I will not contemplate claiming "fair use" rights in uploads to CZ.Martin Baldwin-Edwards 11:49, 20 February 2008 (CST)

CLARIFICATION: Laws made in other countries do in fact have an impact in the US for a simple reason, fair use of any material originating in a country with treaties with US are treated according to those treaty agreements. It is a huge issue. So, it would be prudent to ascertain just what the US laws are with regard to material protected by copyright laws not legislated in the US.--Thomas Simmons 18:52, 21 February 2008 (CST)

the clarification deals with a remote possibility that has never come up on CZ and never on Wikipedia-US to my knowledge. In general, the fair use rules in EU/UK/Canada/Australia/India are very similar to those in US. The allow fair use of images without asking permission if the fair use criteria have been met. Richard Jensen 18:58, 21 February 2008 (CST)

There is no country called the EU, Richard. There is no copyright law of the EU, so it is 27 countries' very different legal systems and laws. Your simplifications are just completely wrong. Martin Baldwin-Edwards 19:06, 21 February 2008 (CST)

It seems to me that a primary reason why WP comparisons are weak or irelevant here, in this context at least, is that WP is based on anonymity. Here, we know who everyone is and can show that identification has been verified. I can imagine that it would be difficult to sue someone, say for libel, for slanderous graffiti. Might be important to know who is the offending party. Anonymity would seem to be a barrier to any legal action. Might the same be true of WP if anyone chose legal recourse for perceived copyright violations? CZ is not an anonymous group of people. We have names, careers, mortgages, lots of things that could possibly make us vulnerable to various types of legal actions. Best err on the side of caution and simply ask permission to use other people's property.--Thomas Simmons 14:31, 22 February 2008 (CST)
You can do that, but that does err far beyond safety...for the usage cases here. Browse amazon.com sometime. You don't think they ask permission to use all those book and disc covers, do you? We already have permission - from the limitation on copyright, fair use, in the law. Stephen Ewen 23:50, 22 February 2008 (CST)
These things move in cycles. After lengthy periods the owners may chose to question our interpretation. I saw what happened with some of the problems that Japan went through with some groups (commercial mostly) getting sued for vast sums of money after years of assuring themselves of fair use. Whilst we are not commercial and Amazon is--it sells this stuff and thereby adds to the financial viability of the people who own the copyright so the comparison is not all that helpful--it is always the case that someone in the back office can decide that they do not like the way we neglect their interpretation of their property rights. It is still a good idea to be safe and err on the side of caution. We quote and cite a lot of sources as is customary for this sort of work. But we are still guessing as to what interpretation we are using when we slap some artwork or photo up on the site. Courts exist for this very reason. Best to steer clear of them entirely and ask what people intend for their property rather than guess. For example, even though NASA places its work in fair use, I was careful to make sure of our mutual understanding.--Thomas Simmons 00:12, 23 February 2008 (CST)


The thing is, Tom, is that for certain types of images, these here, people find it annoying when you ask for permission for these types of use. Stephen Ewen 14:47, 22 February 2008 (CST)
If that is the case here, I would think that we would prefer to annoy them once or twice to get a clear interpretation of their view of ownership and make it clear that we respect their claims of ownership than to tick them off. Respect might be tedious at times, sure, but they can not fault us for being cavalier with their property. --Thomas Simmons 22:25, 22 February 2008 (CST)
Martin clearly understands this issue. Fair use doctrine is supposed to cause one to pause and consider. In the resulting policy page, I will add clear, cautionary verbige atop the page. Stephen Ewen 14:35, 20 February 2008 (CST)
Fair use is a right given in US law to CZ, which is a US corporation. The Greek government has never sued an American over copyright law--whether or not it decides to imprison Martin is another matter, but we will all send him care packages to his cell address in case he is arrested for jay-walking. That does not mean we approve of his jay-walking (I'm actually semi-serous here--at a US history convention in Atlanta in 2006 a famous professor was arrested for jay-walking between hotels and held in jail; Americans do that, but we never penalize people who exercise their fair use rights.Richard Jensen 03:37, 21 February 2008 (CST)
ROFL!!! C'mon, Martin, don't you want care packages from your 'ol CZ pals? Alright, its too late, I'm getting to silly now... Stephen Ewen 04:03, 21 February 2008 (CST)
Only CZ is legally responsible for the content of CZ's website. This bugaboo about "lawsuits" is silly....there are no lawsuits against 501-c3 corporations like CZ -- or like Wikipedia which has had no lawsuits re copyright at all and is vastly bigger than CZ. Richard Jensen 11:56, 20 February 2008 (CST)

Richard: all of my comments were about the legal duties of individual contributors. The legal position of CZ is an entirely different matter. As I mentioned above, it would be rather difficult to take legal action against uknown persons placing material on WP: this patently is not the case on CZ, and is potentially a problem. Please do not pooh pooh this whole issue just because you live in the USA, which makes it much simpler. Martin Baldwin-Edwards 12:11, 20 February 2008 (CST)

please give one real example of the "legal action" you are talking about. That we we can talk about something real. Richard Jensen 12:12, 20 February 2008 (CST)

The way I see it is that we are all volunteer employees to Citizendium. If I choose to write an article on Coca-Cola, and upload the company logo in good faith, believing that it is a fair use, the ultimate responsibility should fall to CZ, the legal entity, if it feels confident that the usage is fair use and it wants to maintain the image on it's website. Perhaps set up some sort of legal team to make decisions on this sort of thing. Personally, even if I am confident that something is acceptable under fair use, it is absolutely not worth it to me to run any sort of risk of litigation - and I believe your average citizen will feel the same way.

Also, perhaps this is showing my ignorance, but if say, Coke is upset about the usage of it's logo and contacts CZ about it - it just gets taken down and we don't worry about any kind of legal ramifications, correct? --Todd Coles 12:32, 20 February 2008 (CST)

Richard: you fail to understand law, if you think the only "real" things have already happened. This is particularly true with the internet. If you want an example, there are several cases of people imprisoned for posting to the internet in contravention of national laws. Will that do?
Todd: I agree with you completely, but there is no way at this time to transfer your legal obligations under national laws to become those of CZ. I think it could only be done with CZ as a publisher, therefore operating completely differently from WP. As things stand, those outside of well-understood legal juridictions (such as the USA or Canada) need to be very careful.Martin Baldwin-Edwards 12:39, 20 February 2008 (CST)
Martin suggests there are "people imprisoned" for various crimes. no doubt there are people in jail for many reasons. Can anyone name one involved in a fair use case? Answer: there are none. it's a myth. The less myth the better in serious discussions.Richard Jensen 13:16, 20 February 2008 (CST)
Gentlemen, "you fail to understand law" and "it's a myth" are indications that this discussion is verging on impolite exchanges of epithets...please keep it polite. Also, for my benefit if no one else's, can you please identify the exact line of the proposal that you are disagreeing about, and clarify how you would like your version to read? --Larry Sanger 13:21, 20 February 2008 (CST)
the proposal is OK with me as it now stands, (I do recommend we drop the needless statement Except for very minor formatting reductions of around 25 pixels, resizing of images with pixel perimeters within articles should be needless.) As for legal arguments, I think CZ-quality discussions require people to cite specific examples, with citations, rather than rumors or folk legends when dealing with serious isues.Richard Jensen 13:38, 20 February 2008 (CST)
The issue, Larry, is Caveats #3 and #4.
Richard, I've already said I will adjust that wording - will do so later today.
Stephen Ewen 13:57, 20 February 2008 (CST)
re caveat: Contributors should first follow the laws in their own countries. I can't see how it's controversial to recommend that people obey the laws of their country.

Whereas accusing someone of not understanding law is a polite expression, accusing me and others of expressing folk legends is insulting. There are serious issues here, and a dismissive attitude is not appropriate. The point, Larry, is that it must be expressed very clearly to people with limited comprehension of law that CZ does not carry the sole burden of legal compliance. Furthermore, in many countries it is not really clear what the law is on "fair use", therefore it is risky to guess what the law might turn out to be. The fact that some of the commentators on this page do not understand this is a problem. The solution is to warn, very starkly, everybody outside of the jurisdiction of the USA that there may be a problem with legal issues and "fair use".. Stephen has agreed this in principle. Martin Baldwin-Edwards 14:39, 20 February 2008 (CST)

I'm sorry if I insulted anyone, but Martin did repeat the false folk legend that people are in jail on the fair use issue. There are no such people and there are no lawsuits that Martin has cited, no law articles, no court cases. I have searched and not found them. If he has searched and found some, please tell us. So I challenge him on where he gets his ideas. All this warning/"risky"/"very starkly" is a gross exaggeration, I suggest, and wholly based on folk legend. what exactly is the risk, and has it every come into being anywhere? Examples please--names, dates, cases.Richard Jensen 16:14, 20 February 2008 (CST)
Let me suggest this issue just die right here. Richard, you have agreed to caveats #3 and #4, and it is reasonable to incorporate them more prominently atop the article to accommodate Martin's concern. Any other issues now? Stephen Ewen 16:27, 20 February 2008 (CST)

It was actually still-born, Stephen, but I agree. Martin Baldwin-Edwards 16:31, 20 February 2008 (CST)

New section

Personal legal responsibility

Well, maybe the grey matter is not ticking over properly here, because I'm still waking up, but I cannot believe that some of you fellows are treating serious and complicated legal matters as though they are a non-issue.
This is complex intellectual property law, Stephen, it is NOT the same thing as saying that it is my responsibility to find out that it's illegal to steal in Pittsburgh, should I choose to travel there.
Todd said:
The way I see it is that we are all volunteer employees to Citizendium. If I choose to write an article on Coca-Cola, and upload the company logo in good faith, believing that it is a fair use, the ultimate responsibility should fall to CZ, the legal entity, if it feels confident that the usage is fair use and it wants to maintain the image on it's website. Perhaps set up some sort of legal team to make decisions on this sort of thing. Personally, even if I am confident that something is acceptable under fair use, it is absolutely not worth it to me to run any sort of risk of litigation - and I believe your average citizen will feel the same way.[emphasis added]
D* straight, mate!
Look, the proposal says
  1. Contributors are responsible to become familiar with U.S. fair use doctrine before uploading materials to use under fair use, and will be personally legally responsible for their own uses of fair use materials.
  2. The laws of some countries regarding the equivalent of fair use are not consistent with U.S. laws. Contributors should first follow the laws in their own countries. Other contributors where this may not be an issue are probably willing to upload fair use materials for others, in that case
"will become personally legally responsible" blah blah. Are you kidding? Richard says, if I understand you correctly, that this is fine because it's based on US law, which, the caveat says, we should all know. Really? How many pages of arguable legal mumbo jumbo at umpteen hundred dollars per hour is that?
Martin is quite right when he points out that we are not working in the anonymous environment of Wikipedia. Our responsibilities and personal accountability come clearly into focus.
"other contributors where this may (note "may", you're not even willing to take a stand on whether it is or it isn't, but the individual contributors are supposed to) not be an issue are probably willing to upload fair use materials for others," blah blah
Not unless they're b* idiots, they won't be.
Look, what this in essence says to me, is that I can be sued by ACME Inc. and risk losing the farm (literally, in my case) over uploading what appears to be a perfectly innocent and legitmate use of fair use material, it's my lookout, not CZ's. Risk my entire life savings over a volunteer contribution to a hobby project? Not in this lifetime, I won't. I've got animals to feed and a child to put through university.
Well if you all agree that this is worth the risk, there is little I can say: you can all outvote me and proceed accordingly, but I won't be uploading anything. Ever.
Now, I'm sure someone will tell me if I've completely misinterpreted what they've said. Go slowly. Use small words. I'm putting the kettle on.
Aleta Curry 17:06, 20 February 2008 (CST)

The solution is never to claim "fair use" unless you know full well that you are legally safe doing so. I will not be claiming it. (Those who are not concerned about it seem to be residents of the USA, where it is not a big deal) Probably Oz law is close to UK law, but you would have to check it out thoroughly. And maybe your time would be better spent doing other things:-) Martin Baldwin-Edwards 17:39, 20 February 2008 (CST)

Exactly, Martin.
Aleta, Oz law and U.S. law on this are more similar than anywhere in the world.
Look, this policy has some legal ramifications, so it needs disclaimers. But let me give my opinion as one who is conservative on this issue: It is extremely unlikely that anyone will run into problems when acting according to this policy. Stephen Ewen 17:51, 20 February 2008 (CST)
No one has ever been sued or lost money on a fair use case so the fears are nonsense. If someone thinks otherwise they can cite a case. It's rumor--fear--urban legend--like the false example of people in prison. Never happened anywhere in the world. I have been an invited speaker to numerous legal conferences on the issues and have sat through many hours of talks and discussions, and I have read the main literature and done my own searching. Risk is zero for a project like CZ. Zero. Richard Jensen 17:50, 20 February 2008 (CST)

Richard: it is ridiculous that a non-lawyer should advise others that a very complex legal situation is risk-free. Absolutely ridiculous. And unfair to anyone who might suffer from heeding your advice. Regarding the imprisonment of persons for putting material on the internet: are you denying this fact, Richard? There are many cases, believe it or not, where other countries' laws bear no resemblance to those of the USA. That the cases concern political control rather than copyright is true, but the point is that accessing the internet is under the jurisdiction of national laws. Are you familiar with 190 legal systems across the world? Nobody else in the whole world is, so it is difficult to understand how a non-lawyer knows more law than lawyers. Martin Baldwin-Edwards 17:58, 20 February 2008 (CST)

I'm a non-lawyer but I do know that many people have gone to prison all over the world for posting child-porn onto the Net in various ways and from various sites around the world. I don't think the ones who said, "well, geez, there aren't any laws against it in Russia, where it's originating, or that in Holland models 16 are not considered children, etc." got them very far at their trials. I think I would prefer the word from a lawyer who specializes in this domain. If CZ ever accumulates a little spare cash from whatever source, I would suggest that its first and most important use would be to PAY an expert and get some REAL information, information that we can count on. In the meantime, sigh, I will be keeping all of my Time magazine covers waiting on my computer before uploading them here.... Hayford Peirce 18:17, 20 February 2008 (CST)
I agree, Hayford. But bear in mind that even with money we can take only specific legal advice -- e.g. on the USA -- and not for all countries. The "fair use" claim is now quite developed in the USA, so probably you will get clear guidance on most issues. Martin Baldwin-Edwards 18:30, 20 February 2008 (CST)
The bottom line for us as individuals is: is it worth the risk. If I were single, living in the US and renting an apartment, I might feel quite comfortable enough, having read Richard's and Stephen's opinions, to go ahead.
Steve, I agree with you, US and Oz law is somewhat similar-not the same--but similar, but let me ask you this--and I am not baiting you--have you ever ever contacted the Australian copyright office info dept looking for advice? I have. I needed specific answers to specific uses of images for a book (the organisation I was writing it for could afford big legal bucks even less than CZ can) and I had read the law till my eyes were sore, read every opinion I could on it, formed my own opinion and wanted clarification and help from the Department. Long story short, the bottom line was that they basically quoted the law back to me. I have absolutely no doubt that some of these professionals knew for sure, but they were scared of saying so. That's not slinging against these people; I'd be scared to and I've no doubt that XYZ directive ties their hands: they do not want Mrs Curry, if sued over the use of a copyrighted painting/photo/whatever to be able to say (read 'prove') that the Australian Copyright Office said she could. Same exact thing with the UK and a certain painting held by a certain gallery. Complicated by the fact that I'd be downloading in one country from servers in another country images from a third country. Yeah, I'm gonna plough through all that legalese.
Here's the crux, quoting from Steve: "Look, this policy has some legal ramifications, so it needs disclaimers. But let me give my opinion... It is extremely unlikely that anyone will run into problems when acting according to this policy." Yeah, it's unlikely. Mebbe. But that's just not good enough.
Aleta Curry 21:31, 20 February 2008 (CST)
That was a commercial publication, right? In the U.S., every challenged fair use case has been commercial in nature, with lots of money involved. Stephen Ewen 22:29, 20 February 2008 (CST)

An example of fair use

It might help to give folks a solid example of fair use. The Wikipedia article Deep focus is (mostly) written by Jeremy Butler, a professor of communications at the University of Alabama (see his faculty page here). Note the images he uploaded there, which would fit into Category Six: Audio and video clips and video screen captures here. Folks, for all intents and purposes, this use is, in fact, risk free for Mr. Butler. Start adding libelous info to the article, however, and you can bet the lawyers would feel free to work any angle they can to get you. Stephen Ewen 18:32, 20 February 2008 (CST)

One thing (ok, several things) I'm not clear on here - who would get targeted by lawyers? The person who uploaded the fair use material? Does the person who inserts libelous statements get charged with a copyright violation even though they have nothing to do with uploading it? Does the person who uploaded it get charged even though they aren't responsible for the libelous statements? How is the website who agrees to host the material not get targeted? And furthermore, are there any examples of court cases related to what we are doing here - working on a collaborative online project that is subject to frequent change, or is this all the best guess of laymen? --Todd Coles 21:46, 20 February 2008 (CST)
In the U.S., every challenged fair use case has been commercial in nature, with the exchanging of money involved, and the precursor to the challenge was always offense taken at the use (that's not fair!) (here's a summary of the cases: http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html). That just is not going to be an issue here, folks, unless we start getting into the libel business or selling the photos and taking away someone's market. Stephen Ewen 22:34, 20 February 2008 (CST)

AS you mention, Steve, "in the US". For much of the rest of the world, it is uncertain and therefore unmanageable. Martin Baldwin-Edwards 23:07, 20 February 2008 (CST)

Yes, I deny that anyone has ever been imprisoned anywhere in a fair use/copyright case. No one has been fined ever in a fair use case. There have been no lawsuits against 501 c3 corporations (like CZ). And yes I have been an invited expert at law school conferences on copyright and the internet )in Illinois and Ohio). And yes I have done the research. The idea that people who have not done the research--not even simple google searches-- would claim on the basis of urban myths there is a risk in CZ's activities are out of bounds. It frightens our authors and demeans the dialog. Also, there are no alligators in the New York city sewers. Richard Jensen 00:48, 21 February 2008 (CST)
Richard is certainly meaning only that fair uses can never lead to criminal jail or fine penalties. Most nations have criminal laws against very serious forms of copyright infringement, like piracy. That's just not relevant here, and he is otherwise correct. Stephen Ewen 02:57, 21 February 2008 (CST)

Richard: would you please explain to me the situation with copyright and particularly "fair use" in Greek law? Can you name the landmark cases in Greek copyright law? Do you know how the law incorporates internet use in respect of copyright?

I am certain that you can answer none of these things, and can answer none of them for every country of the world. Your claims are insulting to the good sense and intelligence of people: in other words, we do not state the meaning of law unless we actually know such. Searching on Google does not make anyone into a lawyer, nor does pontificating in academic meetings. Please stop this illogical debate and accept that there are internationally potential problems of which CZers must be apprised. Martin Baldwin-Edwards 02:51, 21 February 2008 (CST)

Martin, I have read Greek copyright law. There are, surprisingly, no fair use/fair dealing provisions that I can see. However, this does not mean there are no provisions for its equivalent. Like with Germany, it is probably contained in tort law. If this were not the case, it would be illegal for you to quote the work of any other scholar for educational and critical purposes, which is very obviously not at all the case. And realize: the provisions of this policy, delimited by the categories here, is really not different than quoting text from a work without explicit permission!
Still, cautious as I am, if Greece were the country of my citizenship or residence, and not being more educated about the situation in Greece at this time, I would probably avoid adding media to articles under this policy. But this does not, I repeat, DOES NOT, mean that others cannot - even to articles you wrote in total - and without any issue for anyone. An most certainly it does not at all mean that all contributors should be denied this ability just because it may be inadvisable for some!
Stephen Ewen 03:07, 21 February 2008 (CST)

It would explain [ha!] why Greek academics only ever quote their personal friends in publications:-)) At the same time, some of the leading texts in Greek are [I am told by students] plagiarised from USA textbooks. It would not surprise me at all, if the law made a complete distinction between copyright protection of Greek things, and the non-protection of non-Greek things. This is generally what happens here, but I am of course guessing in this specific case.

I think the main point is that "fair use" is a developing concept and uncertain or even missing in some legal systems. Also, I have in the past cited European Commission reports with statements of Greek law provided by leading law firms, only to find out later that what they wrote was inaccurate or wrong. So, don't be sure that the UNESCO source is correct...Martin Baldwin-Edwards 03:39, 21 February 2008 (CST)

The UNESCO document is supposed to be just a translation of the law.
Greece sounds like a mirror image of Turkey...which is why I never believed certain things a certain contributor from there told me about certain images I was asked to upload.... But try Haiti. "Copyright: the Meaningless Concept".
Stephen Ewen 03:51, 21 February 2008 (CST)

Another idea

Another idea is to change Caveat #5: If an article is requested to be under dispute resolution, fair use materials should be commented out with tags until the issue(s) are resolved.

Change it to: Fair use images may only be placed into articles after they have been nominated for approval.

This was, in fact, part of my original draft. Surely this should alleviate worries. If I place the photos as at Deep focus, then that is my own use. I would not blink even once at placing those images into that article if it were about to be locked as expert approved.

Stephen Ewen 01:29, 21 February 2008 (CST)

the purpose of this proposal is a guideline for fair use, and so items that meet the citeria meet CZ's approval. We should have a mnechanism so that if the owner of the copyright complains, that compaint is immediately acted upon (accepted or rejected) by CZ. But no one else besides the owner has any legal right whatever in the image or its use by CZ. Richard Jensen 10:28, 21 February 2008 (CST)
When people - ahem! - use the Upload Wizard, that mechanism is already there. And no way, liberty ain't license. Stephen Ewen 11:16, 21 February 2008 (CST)

A small request

I have a small request. Can all of you non-lawyers please, to spare everyone's nerves, stop speaking as if you had the definitive answers to questions that others are actually disputing? Rather than saying, "I know X," or "it is proven that Y," or "Such-and-such a case/statute establishes that Z," why not say, "In my opinion (IANAL), X," or "I thought it was proven that Y, although I could be mistaken," and "I brought my pitiful nonlawyerly skills to bear on such-and-such a case/statute, and in my opinion, it means Z." Thank you. --Larry Sanger 13:49, 21 February 2008 (CST)

IP lawyer here

Hi. I'm an intellectual property attorney. I'd be happy to answer any specific questions. My personal inclination is to think that Wikipedia (as an example) is far stricter than necessary in recognizing use of images as constituting fair use. Bear in mind that the test is the same for text as it is for images. If you quote a passage from a book, your fair use justification is no different than if you reproduce an image from that book. Regards. Brian Dean Abramson 08:19, 21 February 2008 (CST)

Hi Brian. If you could weigh in on the questions at issue above (maybe in one long post, rather than interspersed above--that would be most useful to me, anyway), I'm sure we'd all find that very useful. As the single person most likely to be sued (in the future) for work on CZ, I personally would like to have a "safe" approach, as I'm sure you can imagine. TIA! --Larry Sanger 13:44, 21 February 2008 (CST)

Brian: thanks for coming along! Could you also comment on the situation for contributors outside the USA? My worry, as stated above, is that the legal situation is much less clear (and in some cases opaque) with regard to "fair use". Many thanks, Martin Baldwin-Edwards 15:12, 21 February 2008 (CST)

There is no need to assume that lawyers are malevolent people looking for expensive lawsuits. On the contrary. They are constrained by the fair use laws, and the first cirteria they look at is whether fair use by CZ costs them sales. If they do NOT lose money from our use, they will not likely win any lawsuit, and will not be able to claim any damages. If you look at the Stanford listing of fair use lawsuits, they all involve commercial defendants and they involve a potential loss of revenue. So CZ starts with the question, will CZ use cost a company money? if the answer is no, then we have fair use.Richard Jensen 17:10, 23 February 2008 (CST)
As I have understood it, "fair use" is a partial derogation from normal copyright rules. It is not a constraint. If I am correct, then you are stating a personal opinion about how it looks, and how you think people will behave, rather than giving a correct statement of law. Martin Baldwin-Edwards 22:28, 23 February 2008 (CST)
The first rule of lawyering is never to assume what the other party will do, irrespective of the law. That said, Citizendium is a website, and is protected by the safe harbor provisions of the DMCA. If something is posted here that breaches copyright, it is the indivual poster, not Citizendium as a project, that would be liable. However, I will also say that although fair use is an affirmative defense to copyright infringement rather than an inherent limitation, it would indeed be very, very difficult for any owner of a work to defeat this defense for material used on this non-profit educational website, in support of an educational article to which the copied work is relevant. Brian Dean Abramson 22:50, 23 February 2008 (CST)
There's a few simple steps CZ would need to take to qualify for the DMCA provision, described here. Stephen Ewen 23:50, 23 February 2008 (CST)
Particularly easy in the case of an endeavor like this. Of course someone who repeatedly violates copyrights after warning would be banned! Brian Dean Abramson 01:40, 24 February 2008 (CST)
Without attempting to engage any of the legal issues here, let me state what I'm worried about: it isn't that we will knowingly fail to ban people for repeatedly violating copyright. It is that we will have a policy that permits or even encourage people to do what courts would regard as violating copyright. That's the particular danger we must have in mind when we adopt this particular policy. There is a related danger, namely, that due to lack of confidence in what our rights really are under the law, we will forbid uses that we need not forbid, thereby weakening both our own content offerings as well as the institution of fair use. --Larry Sanger 21:39, 2 March 2008 (CST)
So long as we fall under the DMCA, complainants must contact us and give us an opportunity to remove infringing (or offending) content before they sue. If we comply with such a "takedown request", we're immunized from a lawsuit; so it won't get to the question of what courts think unless we stand on our rights to keep something that we've been asked to remove. That's a later bridge to cross, however. Brian Dean Abramson 01:09, 3 March 2008 (CST)

I've had professional jobs where interpreting and applying certain laws was a key component, and for what its worth, I agree with Brian's assessment here: "it would indeed be very, very difficult for any owner of a work to defeat this [fair use] defense for material used on this non-profit educational website, in support of an educational article to which the copied work is relevant." Stephen Ewen 02:07, 24 February 2008 (CST)

I presume that you mean under US law, Stephen. Also, if CZ does not qualify for the DMCA provisions, what then? Martin Baldwin-Edwards 04:22, 24 February 2008 (CST)

I am frankly not sufficiently familiar with non-U.S. law to comment on how non-U.S. works would be treated thereunder, but under the Berne Convention (a treaty on IP rights which has been signed by most countries, including all of Europe and North and South America), a work originating in the U.S. will not receive greater protection in another country than it would in the U.S. The question of CZ qualifying under the DMCA is a matter of DMCA filing whatever notices need to be filed under that act. It is very squarely within the realm of websites intended to be covered by the act. Brian Dean Abramson 22:21, 29 February 2008 (CST)

This is useful, too, Martin: http://www.utsystem.edu/ogc/intellectualproperty/portland.htm

Stephen Ewen 01:29, 1 March 2008 (CST)

Next step?

Right now this proposal is in the "discussion" phase. If I am not mistaken, here is where it stands, generally speaking: Steve has made a definite proposal. Others have objected to certain elements of his proposal, and made their feelings well known. Brian has usefully offered a lawyer's opinion.

Here is what I propose for a next step (I hope you'll edit the "next step" field soon in any case, Steve): submit the proposal to the Executive Committee, together with a summary of objections, i.e., which specific elements of the proposal people objected to, and why. Then leave it up to the Executive Committee to figure out. --Larry Sanger 12:31, 27 February 2008 (CST)

I suggest that its best that people take the time to read the discussion if they want to know about it. Also, I find it peculiar that the exec committee should be given this matter when there is no one on it (except perhaps Ian?) who has any special knowledge about this matter, and there is no magic that positional authority bestows. We need people handling this who have authority that comes from substantive, studied knowledge about it. I suggest an ad hoc committee to include Brian. Stephen Ewen 18:27, 19 March 2008 (CDT)
Well, at the moment, it falls under the executive committee's jurisdiction. The executive committee can of course decide to have somebody else decide the matter, either by setting up an ad hoc committee or a more permanent legal committee. But that's up to the executive committee (or Larry); I don't have that power.
Besides, I'm not sure it's a good idea to set up an ad hoc committee. Who would be in it? We don't have that many people with authority within CZ and "substantive, studied knowledge" about the matter. It's not purely a legal question; it also has to do with how much risk we are willing to take.
Incidentally, please do something about the "resizing of images with pixel within articles should be needless" phrase. I don't know what this is supposed to mean. -- Jitse Niesen 18:06, 30 March 2008 (CDT)

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