User:Kwh/FairUseThoughts

The fundamental concern is that the Foundation will be targetted by copyvio lawsuits. The Foundation has (may have?) a strong defense in OCILLA. One of the intents in OCILLA, per our article, is that Online Service Providers do not "need to make such error-prone decisions in the very complex provisions of fair use".

Wikipedia acts as an OSP, hosting a "work" which is licensed under the GFDL. The author of any given article is the last editor who touched it, as they are responsible for having submitted an article which is a compilation of their own work with a derivative work of all previous article contributors as licensed under GFDL. (This is rather complex).

There's actually 3 layers of defense for the Foundation; Safe harbor under OCILLA, a similar safe harbor under CDA § 230, and finally actual 'fair use' defense per Copyright Act. Per cases cited at CDA § 230, CDA has immunized an ISP/OSP from liability in numerous cases, even when cause of action arose from the ISP's negligence. These cases have been affirmed by SCOTUS inasmuch as the Court refused to hear appeal on many of them.

Liability of the Foundation

OCILLA

A copyright holder who seeks redress for a perceived copyvio may go after the Foundation first, as a larger and easier target with somewhat deeper pockets. However, OCILLA provides a strong defense, if the conditions are met. The conditions are that (the OSP):

• not have actual knowledge that the material or an activity using the material on the system or network is infringing (512(c)(1)(A)(1)).
• not be aware of facts or circumstances from which infringing activity is apparent (512(c)(1)(A)(2)).

In theory the Foundation is as ignorant of what editors are uploading and contributing as AOL or other ISPs are ignorant of what people are putting on their homepage. The use of the term "actual knowledge" in statute is also significant. Typically "actual knowledge" comes with a statement from the copyright holder, e.g. a "DMCA takedown request".

• upon obtaining such knowledge or awareness, must act expeditiously to remove, or disable access to, the material. (512(c)(1)(A)(2) and 512(c)(1)(C))
• not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity (512(c)(1)(B)).

An interesting thing to debate.

• have a Designated Agent registered with the US Copyright Office to receive notifications of claimed infringement (often called takedown notices). If the designated agent receives a notification which substantially complies with the notification requirements, the OSP now has actual knowledge and must expeditiously disable access to the work. The OSP must make available to the public through its service, including on its web site substantially this information:
  • the name, address, phone number and electronic mail address of the agent.
  • other contact information which the Register of Copyrights may deem appropriate.

m:Designated agent

• adopt, reasonably implement, and inform subscribers and account holders of a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers (512(i)(1)(A)).

See final sentence at Wikipedia:Copyrights#If_you_find_a_copyright_infringement, as well as other locations in policy.

• accommodate and not interfere with standard technical measures used to identify and protect copyrighted works (512(i)(1)(B)).

Wikipedia, AFAICT, does not have any means to circumvent DRM in itself.

Another salient description at OCILLA is:

"The law also requires "actual knowledge" of infringement before action must be taken. Actual knowledge is not an opinion about infringement i.e. "I think this is infringing" or "this is copied from another site, therefore it is infringing"."

Communications Decency Act

The Foundation also has protections under the Communications Decency Act as described:

"If the ISP takes steps considered reasonable or is found not to have a duty of care to police potential infringers on the site then the infringement may be considered "innocent" from the point of view of the ISP and the infringer may still be held to be the liable party which posts the infringing work or works."

It is well known and obvious that Wikipedia's goal is to write an encyclopedia, and that the manner chosen to do this is in an open content submission process. Edits are published immediately, without review or editorial control by employees of the Foundation. The Foundation has chosen to allow the community to define policies and guidelines, and nominate administrators for enforcement. Copyright and title to the vast, vast majority of content belongs to the various editors;the Foundation owns only empty database servers and a few trademarked logos. As such, I think that the Foundation does not have a duty of care to directly police infringement outside of the above-mentioned compliance with "DMCA takedown notices". I also think that the reasonable test is that the Foundation is a non-profit entity with only three employees; short of disallowing all file uploads (which would be counter to its goal), the Foundation is taking all reasonable steps by allowing a large number of community-nominated administrators to directly delete egregious infringements.

Fair use requirements

There is no legal requirement that an author seeking to use another work under fair use provisions cause their work to take a certain form, e.g. containing a 'fair use justification' or tagging elements. If reviewed by a court, the four fair use criteria will be used by the court to arrive at a decision independently. Wikipedia policy demands a fair use justification, but the policy is purposely vague.

To the extent that editors engage in tagging the source, copyright regime, and fair use justification for a given image, it serves several purposes:

• Allows a downstream recipient of the Wikipedia content to determine the rights associated with a given piece of content, without having to research.
  • This applies both to 'mirror' sites which may download the Wikipedia database and image archive, as well as subsequent editors of the content.
• Can serve as a pre-emptive defense against a copyvio action against the editor. A copyright holder who is convinced that they have sustained damages as a result of the use will probably be unswayed by even the most ironclad argument.

So it seems the Foundation is adequately protected. But if one takes an extremely cautious view, in allowing any 'non-trivial' fair use contributions whatsoever, the Foundation is assuming some element of risk acceptable to it. If the Foundation disallowed all non-Free materials in an unambiguous policy, its liability would be near nil.

Liability of the Editor

The last editor of a given article containing a copyvio would also be liable for infringement, but there could also be an argument that every editor who included the copyvio in a previous edit would be liable as well. (Again, something which depends upon the skill of the lawyers.)

Pessimism: Bad PR and Chilling Effects

The far more likely possibility is that a copyright holder who wishes to cause trouble for Wikipedia and achieve publicity for themselves (no such thing as bad publicity), they will likely file 'John Doe' lawsuits against all editors remotely related to the perceived copyvio, and subpoena the Foundation to identify the editor (under § 512(h). We are told, of course, that no record of the IPs of editor accounts exists except in the database table which drives Special:Recentchanges.

Lawyers and politicians will stand behind podiums and call Wikipedia a "no-tell motel" of copyvio that shields its users' anonymity. Jimbo will be denounced. Napster, KaZaA, et al will be cited. A few people will be somehow tracked down and served, and will settle the case, giving it credence. A great deal of good editors will leave on principles of privacy. Pretty much anyone else will be chilled.

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• The conclusion of Nunez v. Caribbean International News, Corp seems highly applicable to many cases on Wikipedia.

Conclusion: The court emphasized that generally reproduction by newspapers of professional photographs is infringement. However, if the photo itself is newsworthy, the photo was acquired in good faith, and the photo had already been disseminated, fair use exists. - ibid.

• Thumbnails of photos seem to be a pretty safe bet per Kelly v. Arriba Soft Corp., but most definitely not if the full/large image is stored. Needs more research.