Wikipedia talk:Non-free content

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If it's legal, it's ok.[edit]

Please read a recent posting on my talk page by User:Jheald. Apparently, a discussion he had with the Foundation and its staffers leads to conclusions that strongly disagree with commonly held beliefs here on this project. My concerns are:

  1. Effectively, the supposed stance of the Foundation is "if it's legal, it's ok". This stance has been strongly disagreed with by common practice here for many years.
  2. There's no documentation anywhere that this is the actual stance of the Foundation; just a discussion. The discussion apparently disagrees with Foundation:Resolution:Licensing policy.

Discuss. --Hammersoft (talk) 14:38, 21 August 2014 (UTC)

Unless it's put into writing for all projects to see, we should assume that the Resolution that minimizes non-free use holds. Second-hand word of people that may not even have been responsible for the licensing policy is not going to override that. (Add to the fact that there's even long term editors that mistake our non-free policy with the concept of fair use, which are related but quite different, and I could see Foundation members being similarly confused if they weren't part of the original discussions). --MASEM (t) 15:09, 21 August 2014 (UTC)
So, when somebody questions whether the overriding imperative suggested by "The focus of both of these items of policy is to limit the use of copyrighted, fair use imagery as much as possible" is really the balance that the NFC policy was intended to strike (because that certainly wasn't the thought when the NFC policy was written), they get told "we have to do that because this is what the Foundation wants".
But then when somebody actually asks the Foundation, they get told "No, that's not how see the policy. Not coming from us."
Doesn't that seem even slightly troublesome?
There are good reasons for being very vigilant about non-free content, which follow directly from reading the word "minimal" in the Licensing Resolution in the same sense that it is read in U.S. fair use case law -- viz. no more than needed for the purpose identified. The principal concerns are that images must be legal for use on WP, per US law; images must be legal for our major commercial bulk reusers, who cannot rely on Wikipedia's non-profit, educational, and charitable status to pass the famous 4 factor tests of US fair-use law; and images should not overbalance readers perceptions of WP -- it's our free content we are about, the role of fair use images on any particular article should be ancillary to that.
That's the line the NFC policy was originally drafted to reflect; and it is the line as currently understood by Foundation staffers. If some would advocate a more hard line view, it worth noting that it does not come from either of those two sources. Jheald (talk) 15:31, 21 August 2014 (UTC)
(ec) For the record, let's remember that it was also Kat Walsh's line immediately after the Licensing Resolution was passed -- it wasn't intended to tighten existing practice on en:wp, it was intended to recognise what en:wp had done as best practice, and spread it to the other language wikis, if they were going to use NFC. Jheald (talk) 15:36, 21 August 2014 (UTC)
I see absolutely nothing wrong with staying by the word that is published by the Foundation, as opposed to second-hand nature. Hammersoft (I believe) has in the past even tried to ask the Foundation to give more insight on their policy by email and they didn't response or chose to clarify. So unless they write something down to express what they want that everyone can read directly, there's zero reason to question the Resolution. And no, NFC was written on a much stronger line, expanding past what fair use would allow. --MASEM (t) 15:52, 21 August 2014 (UTC)
  • At wmf:Resolution:Licensing policy, the licensing policy "may not be circumvented, eroded, or ignored by local policies", so whatever the Foundation may think is fine, the Foundation has decided that we can't do anything which isn't permitted by the licensing policy. The licensing policy says that an EDP must be minimal and that it must be "in accordance with [..] the law of countries where the project content is predominantly accessed". I'm not sure if WP:NFCC satisfies the last part. This page tells that English Wikipedia is the predominantly accessed language edition in the United Kingdom, and this page tells that 10.8% of the readers are from the United Kingdom, so maybe the United Kingdom is one of the "countries where the project content is predominantly accessed". I'm not sure how big changes would be required to make it legal to use English Wikipedia articles in the United Kingdom. --Stefan2 (talk) 15:33, 21 August 2014 (UTC)
  • I think it's rather obvious that this secondhand "understanding" is nonsense. For example, the WMF licensing policy states "Any content used under an EDP must be replaced with a freely licensed work whenever one is available which will serve the same educational purpose." That's much stricter than American "fair use" law (and, so far as I know, anybody else's). The foundation's resolution states that EDP's must be "minimal". Saying that any fair use is OK would be maximal -- we couldn't legally go any further in any reasonable way (and "use anything and we'll take it down if there's a legal threat" isn't reasonable.) It's impossible to square this with the idea that Wikipedia content should be presumed for-profit reusable, as well. Even if somebody did say this, it's not as though Foundation staff haven't seemed to go beyond Foundation mandates before. The Big Bad Wolfowitz (aka Hullaballoo) (talk) 17:50, 21 August 2014 (UTC)
    • Sorry, I was taking NFCC #1 as read, because it's absolutely crystal clear, and not in dispute.
As regards "Maximal", maximal use of images is not fair use. Use has to be minimal, as U.S. law understands the term, or it is not fair. And we are stricter than "anything we can get away with", because (i) we want our use to be legal, whether or not anyone is challenging it, whether or not it ever even remotely be likely to be the subject of challenge; (ii) because it is not just our use we want to be unquestionably legal, but also that by any commercial bulk reuser -- a higher bar; and (iii) even when legal, we value WP's reputation for using fair use content sparingly, without dominating the page.
I should make absolutely clear that I think the ten NFC criteria are well judged, balanced and appropriate. What I think needs reflection is the injunction sometimes championed by some that we are under some kind of imperative to read them in the narrowest least permissive way possible, to always reduce fair use above all other goals -- "building a fence around the Torah" if you will. That is not the spirit in which the NFC were written. It's not the attitude Jimbo took over e.g. pound coins recently. And it seems it's not something the people working for the Foundation recognise either. Jheald (talk) 18:28, 21 August 2014 (UTC)
US Fair Use law has no concept of "minimum", it is a new concept here and thus a specific declaration of the Foundation. US Fair Use defense compares how much of the original work was taken in considering whether there was a legal copyright issue, in addition to other tests, but "minimum" is not a factor there; obviously the less you use the more likely you can claim your fair use defense. Our goal here is to promote free materials and minimize the amount of non-free to only the most necessary cases where free content (including text) cannot do the same job at an encyclopdic summary of a topic. --MASEM (t) 18:56, 21 August 2014 (UTC)
Whether fair use is minimal typically plays into factors 1 and 3 of the U.S. fair use analysis: viz the "Amount and Substantiality" of the taking, and the "Purpose and character" of the use. Minimality, in the sense presented above i.e. the taking being no more than needed for the purpose identified, is something often discussed in such cases. Jheald (talk) 19:25, 21 August 2014 (UTC)
Yes but fair use does not require a minimization of use (only if the use is minimal compared to the whole work), while the Licensing Resolution does. There's a major difference here. --MASEM (t) 16:29, 23 August 2014 (UTC)
Here's what the University of Texas had to say, summarising recent decisions, in guidance updated in 2012 [1]: they "follow recent trends in court decisions in collapsing the Fair Use Statute's four factors into two questions: Is the use you want to make of another's work transformative -- that is, does it add value to and repurpose the work for a new audience -- and is the amount of material you want to use appropriate to achieve your transformative purpose? Transformative uses that repurpose no more of a work than is needed to make the point, or achieve the purpose, are generally fair use." (emphasis original)
So: an amount appropriate to achieve the purpose ... no more than needed to make the point, or achieve the purpose.
Fair use can include an entire work, if the entire work is needed to achieve the purpose; or on the other hand quite a small taking may not be fair use, if it is more than needed to achieve the purpose. Jheald (talk) 22:59, 24 August 2014 (UTC)
And that's why the Resolution is specifically stricter than that, specifically minimize non-free inclusion as an explicit aspect, since under fair use, the full work could be justified. As we are trying to create a free resource, there is almost no case where the full work is required (in the case of 2D photos/paintings, the work at full resolution) to be able to talk about it, so minimizing non-free is right in line with that goal and beyond the requirements of the US Fair Use defense. --MASEM (t) 23:06, 24 August 2014 (UTC)
Sorry Masem, while I do have the greatest respect for you, this time you're pulling this out of nowhere.
People on the Board at the time, and current WMF staffers, both deny your interpretation.
As set out above, "Minimal" is a standard term in US fair use law discussion, meaning no more than needed to achieve the purpose. Jheald (talk) 23:12, 24 August 2014 (UTC)
(ec) The question is what is needed to achieve the encyclopedic purpose. If 300px is sufficient to achieve the purpose, then we go for 300px. But if (as in a number of cases), slightly higher resolution is required, in such cases we allow slightly higher resolution. This is entirely in line with what I have set out above. Jheald (talk) 23:20, 24 August 2014 (UTC)
Until it is writing and put to meta. to be shown to all of the Wikimedia projects to counter the Resolution, we go by the resolution. I don't care what you claim to have heard, that has zero influence on the written, dated resolution set by the Foundation. --MASEM (t) 23:15, 24 August 2014 (UTC)
I am going by the Resolution. If you're so sure that the Resolution says more than I say it does (and WMF staffers say it does), then why don't you go to the Foundation to see if they'll support your views. Oh, except Hammersoft tried that, and they didn't. Jheald (talk) 23:20, 24 August 2014 (UTC)
No you aren't. The Resolution is contradicting what you claim that the WMF staff said. The Resolution has language that goes beyond Fair Use law (eg "such usage must be minimal" and the restriction on using non-free where free content can be expected to be had or created). So we need the Foundation to issue an official statement or an updated resolution to reflect that change in our policy. Further, there is a huge difference between not getting a reply back (which is what happened) and being told one's view is wrong - and in either way, there's a least a trial of documentation for that. --MASEM (t) 23:46, 24 August 2014 (UTC)
The word "minimal" is the specific word I put to the WMF staffers and asked for interpretation on, having explained that there were two points of view on this. Their view was exactly the same as mine -- and quite forcefully expressed too, I might add. So don't say that the word "minimal" logically entails your interpretation, because it simply ain't so.
NFCC #1 is a separate issue, that clearly does go beyond fair use law, but it is not the issue in contention here, and not something I have ever challenged.
There is no change in policy, because the word "minimal" was never intended to bear the interpretation you have subsequently put on. Supporting my view there are the intentions of the original contributors of the relevant NFCC criteria, contributed to bring NFC policy into closer alignment with US fair use case law; there is the statement of Kat Walsh, immediately after the resolution was announced, clarifying that it was intended as a confirmation, not a tightening, of en-wiki policy; and now the statement by relevant staffers in the relevant department of WMF, directly after a talk on the use of NFC. Against that, what is there to support your reading of the Resolution, apart from your own point of view? Jheald (talk) 08:50, 25 August 2014 (UTC)

──────────────────────────────────────────────────────────────────────────────────────────────────── Because there's no documentation of your claims, and considering that at the time en.wiki built out NFC before the Resolution was in place, it was to put limits far stronger than fair use (there's the whole reason that language was changed from "fair use" to "non-free" to reflect this.) It would also seem that a "fair use" level of allowance would go against everything the Foundation says it is doing in trying to provide free content material. Words like "exceptional" in the Resolution do not ring true with the concept of fair use as you are describing, while staying true to "minimal" as we expect. Further, even if the Foundation put out language that altered the Resolution along the lines you are claiming, you then subsequently would need to change NFC policy on en.wiki; as long as our version of NFC still meets the hypothetical weakened licensing resolution of the Foundation, we can continue to strive to keep use minimal. The aim of minimizing how much non-free we use should be an intellectual challenge to editors - how far can they take describing a topic before requiring the use of non-free - given that this is still a free content encyclopedia. Basically, you're asking us to radically change policy on your word "This is what the Foundation said" with nothing to back that up. That's not going to happen. --MASEM (t) 13:43, 25 August 2014 (UTC)

The current text of WP:NFCC is entirely compatible with what I've said. No changes would be necessary. After all, it's the principles I've expressed which formed it in the first place. Jheald (talk) 16:08, 25 August 2014 (UTC)
Completely disagree that our NFCC is compatible with the summarized view "if it's legal, it's ok"; we have chosen much stricter inclusion than just US fair use law. US fair use law, for example, would let us use samples over 10%/30 sec of songs, or have multiple cover images of published works, or use multiple screenshots for visual works, which we would certainly be in the right to us since we are meeting the educational goal. But, importantly, we have chosen not to do that, purposely, to maintain the free content mission. --MASEM (t) 17:51, 25 August 2014 (UTC)