Wikipedia talk:Non-free content

See also: Wikipedia talk:Non-free content criteria exemptions

Everyday objects

This page seems to say nothing about taking a picture of an object (other than a building). Surely a picture of a toaster is more replaceable than an image of George Clooney? Manufacturers will often release rights to promotional images to have coverage on Wikipedia (for example), but there is no leverage if we allow their promotional images as fair use (for example). ▫ JohnnyMrNinja 18:59, 29 April 2012 (UTC)

As far as I remember we have typically removed promotional pictures of such items. For example, I think manufacturers' pictures of handguns have been removed. Your assessment of the NFCC #1 position is I think quite correct. Jheald (talk) 19:07, 29 April 2012 (UTC)

The NFUR claim for the promotional image you link to above is that the product has not yet been released to the public and so the image is not replaceable (obviously a NFUR claim with an expiration date regardless of its merits otherwise). Generally though, you're right that we do not permit use of a nonfree photo that is replaceable, as would be the case with any readily available object that any Wikipedian could photograph. postdlf (talk) 19:12, 29 April 2012 (UTC)

Neither product has been released to the public. I emailed the first manufacturer (as I was writing the article) and told him I needed the image to be released as CC-BY-SA to use in on Wikipedia. He released the entire press pack as CC. Manufacturers that haven't launched yet need all the publicity they can get. If we allow images like this there is no reason for manufacturers to release images under a free license, the same reasoning we use for living people. ▫ JohnnyMrNinja 19:33, 29 April 2012 (UTC)

To put it another way, have you ever heard of a company that didn't want a Wikipedia article about their products? Isn't that why we are deleting so much spam every day? That's a pretty big bargaining chip from a company's point of view. ▫ JohnnyMrNinja 19:36, 29 April 2012 (UTC)

The one thing to be careful of - not all everyday objects can be photographed freely. Yes, copyright law prevents copyright of a shape that is designed for utility, so a car's or toaster's shape can'be be copyrighted and thus photographed freely; on the other hand, a toy re-creation of a car can be copyrighted since a toy has no utility. Furthermore, if the object does have significant branding on it in terms of labels, even if the shape is utilitarian, the branding can make it copyrighted and a photo a derivative work. --MASEM (t) 00:32, 30 April 2012 (UTC)

Agreed; that's the word I was looking for when I said everyday, utilitarian. Can we put something in about utilitarian objects? Even if the item is not released yet or hard to come by, manufacturers will release free copies if asked. At least independent manufacturers will, as long as we don't use non-free images.▫ JohnnyMrNinja 05:47, 5 May 2012 (UTC)

Lack of effective freedom for sexually explicit photos on Wikipedia

According to Wikipedia:File copyright tags, "For a file to be considered "free" under Wikipedia's Image use policy, the license must permit both commercial reuse and derivative works." Let's consider how that requirement interfaces with sexually photographs and videos such as the ones used in ejaculation. To comply with the regulations issued per 18 USC 2257 in the United States, "primary producers" and "secondary producers" must keep certain records to establish that all of the performers were adults at the time the depiction was created. OTRS and the WMF are not in the practice of keeping such records. That's fine for us, because the WMF does not qualify as a "primary producer" since it does not actually generate the material, and isn't a secondary producer because it does not distribute the content for commercial purposes. However, the moment a third party takes one of our "free" sexually explicit images and uses it for commercially, without performing the nearly impossible task of obtaining the required records from anonymous contributors, they are breaking the law. While it's obvious that certain commercial uses of our content are extremely unsympathetic, there are legitimate cases. If a college professor teaching a course on human sexuality modifies our text and our images to prepare readers for students, a copy shop cannot print the results since they would be paid for their services. I submit that sexually explicit photos and videos of actual humans on Wikipedia are constructively non-free, as it matters not whether the commercial use restriction is derived from copyright law or some other source, where the non-copyright restriction only exists because the WMF hasn't insisted that uploaders provide it with the necessary records. We have chosen prepare the materials in such a way that they can never be used commercially, and cannot feasibly rectify the problem for content that has already been uploaded. Since all of our sexuality explicit photos and videos of actual people are non-free, the policy should reflect a goal of replacing them with diagrams, paintings, computer renderings, or other free content whenever possible. Alessandra Napolitano (talk) 20:32, 5 May 2012 (UTC)

You would need to take this to the WMF. The issue of provoctive images has been one addressed several times by the WMF and they would be aware of their position per 18 USC 2257. We at en.wiki can't make that distinction. --MASEM (t) 20:51, 5 May 2012 (UTC)

Though I will say that because for free images, we license by CC-BY (read: retain attribution), the primary producer of the work is always known, even if a third party publishes it commercially, so it is always possible to attempt communication with that person. --MASEM (t) 20:52, 5 May 2012 (UTC)

I seriously doubt that the anonymous producers of sexually explicit images are willing to hand over their real names, addresses, and anything else contained on images of their photo IDs, which they would need to provide. You can always ask... Of course our insistence that commercial use of images be allowed is accompanied by a requirement that no permission need be requested from the copyright holder. Regarding contacting the WMF directly, the precise contours of content freedom are normally decided by the community. The NFCC certainly implement foundation policy, but isn't beholden to it in every detail. Alessandra Napolitano (talk) 22:47, 5 May 2012 (UTC)

A commercial reuser of a sexually explicit free image would become a secondary producer under the scheme above. If they can't verify the information - either because they can't communicate with the original uploader or the original uploader refuses to give details, then they shouldn't be using the image. That doesn't make the image any less free - there are no IP rights that are negated by that, just legal rights. The Nazi symbols discussed below are a good example of what we expect from free content - nothing that is limited because of a specific person or company demanding IP rights over the content yet obviously concern when national laws come into play. --MASEM (t) 23:19, 5 May 2012 (UTC)

Anyway, this discussion isn't held at the correct place. This is the talk page of a policy regulating fair use on Wikipedia, but even if you try to apply fair use on an image depicting nudity, I would assume that you would still have the same identification issue when attempting to use the Wikipedia article commercially. Thus, fair use or not doesn't seem to affect whether the images are free or not. Furthermore, this isn't very much of a Wikipedia matter as most images related to nudity are held on Wikimedia Commons instead of Wikipedia. Try to take up the matter at Commons:Commons talk:Nudity instead. --Stefan2 (talk) 23:25, 5 May 2012 (UTC)

The NFCC cover all uses of non-free content on Wikipedia, and are not simply coextensive with legal fair use. For example, if an image has a non-commercial license, Wikipedia legally can use it, without relying on fair use as a legal defense, but the NFCC nonetheless sharply restrict the circumstances under which this is acceptable. Conversely, an image with no license at all might be acceptable under fair use law, but prohibited by the NFCC. It is an interesting view that all determinations of content freedom made on Commons are binding on Wikipedia. Alessandra Napolitano (talk) 00:07, 6 May 2012 (UTC)

(edit conflict) This is not a copyright restriction. The general practice seems to be to ignore other restrictions, such as limitations on the freedom of speech. There are other ways in which sexually explicit material may be partially non-free (i.e. disallowed for some purposes). For example, many countries have age restrictions on sexually explicit material, and in those countries, such material can't be used in publications intended for children. In my country, you can't send pornography to random people unless they've given you prior permission to do so, so you can't include pornography in regular ads sent out to everyone living in some area.

Compare with {{Nazi symbol}}: various Nazi signs are illegal in Germany, but they are still allowed here.

In China it is illegal to oppose the Chinese government, but Wikipedia articles are still allowed to mention such opposition. Wikimedia Commons tries to respect the laws in the country of origin but still allows all of these kinds of material. --Stefan2 (talk) 21:18, 5 May 2012 (UTC)

We've normally responded to various legal issues, such as Nazi paraphernalia which is banned in Germany, by reference to "the laws of the U.S. state of Florida where Wikipedia's main servers are hosted." What we're talking about here is whether content can ever be used commercially, in Florida, or any other part of the United States. Legal restraints which prohibit some, but not all for-profit uses, such as not sending material unsolicited, or targeted towards children, etc, are hardly of the same magnitude. Even personality rights have exceptions where necessary for First Amendment purposes. We consider allowing for-profit use such a touchstone of free content that non-commercial only images are candidates for speedy deletion. Moreover, like a non-commercial copyright limitation, the 18 USC 2257 restrictions aren't an inherent property of images themselves so much as the form in which the uploader submits them. If the required records were provided on the file pages for sexually explicit photos, there would no difficulty with commercial reuse, although this obviously won't happen. It seems excessively formalistic to say that images uploaded without a commercial copyright license are non-free, but those without some other piece of information absolutely necessary for any commercial use, which the uploader could have provided, but won't, are still free content. We shouldn't be accepting any tivoized material. Alessandra Napolitano (talk) 22:47, 5 May 2012 (UTC)

Alessandra Napolitano your argument is such a stretch that I can't help but think that your interest isn't in compliance with the law but with trying to impose your own personal views against such images on the rest of the community. Maybe I'm wrong about what you're trying to do, but as it stands, I'm not having any of it. Sven Manguard Wha? 23:43, 5 May 2012 (UTC)

Then why do you suppose commons:template:2257 exists? Commons is basically acknowledging that, with a certainty of 99%, any commercial reuse of the labeled images in the United States is illegal. They just don't care. Alessandra Napolitano (talk) 00:07, 6 May 2012 (UTC)

Through your logic, nothing on commons should be tagged with 2257 because if it was, it fails to be "free". The problem is that your definition of free is not what we consider free. It is free of IP restrictions, but legal laws are not IP restrictions in this case. --MASEM (t) 00:43, 6 May 2012 (UTC)

With a zillion countries in the world, each with its own set of laws (e.g. against covering bad stuff the government did, against homosexuality material, against showing women driving cars or being seen without veils) you can pretty much figure that everything in Wikipedia is illegal somewhere. The only way to be 100% legal everywhere is to delete the entire Wikipedia. A different practical/pragmatic standard needs to and does apply. North8000 (talk) 00:16, 6 May 2012 (UTC)

I have trouble taking Alessandra Napolitano's argument seriously. Even if commercial reuse of sexually explicit images by third parties may infringe US law, that is not our concern. We are not responsible for what people do with our content. There are many other ways in which our content may be used illegally, and we are also not responsible for that. In addition, people outside of the US are not bound by US law regarding the use of sexually explicit images, so the matter is even less of an issue for that part of our public.

Because nobody else seems to be taking the argument seriously either, I'm removing mention of it from WP:CENT.  Sandstein  05:49, 6 May 2012 (UTC)

Require help for artist:Eija-Liisa Ahtila

Hi. I was searching Google Images for "Eija-Liisa Ahtila" to upload some of her works for Fair Use in Eija-Liisa Ahtila, but didn't know which of them I could upload. It would be great if anybody could help.--Taranet (talk) 19:41, 6 May 2012 (UTC)

Copyrights of lists

Based on how Wikipedia:Articles for deletion/List of Advanced Dungeons & Dragons 1st edition monsters was closed (and 99.99% DRV will be happening), I think we're going to need a bit more discussion to brighten the line for when articles that include lists based on creative works step over the copyvio line.

The tl;dr of the above article was that it was a complete list of each creature defined in the 1st Edition books for D&D, with very brief information about it.

The AFD was closed based on the likelihood of a copyright violation per WP:Copyright in lists, a topic that's been discussed before. This argument, that is supported by counsel from WMF, suggests that recreating the full list of, say, the Time 100, within a single article is improper unless permission is granted (as is the case for the AFI 100 lists)

Some questions myself that I came up with in trying to differentiate things (playing devils advocate):

• How is this different from, say, the various List of Pokémon (1–51)?
• How is this different from a character list from a work, like List of Lost characters?
• How is this different from an episode list, such as List of Friends episodes?
• Would a list composed of only notable creatures (have their own article) be of a similar problem?

I personally think I know what the line is but not to taint discussion, I'm leaving it open. But the question needs to be asked in context of U.S. fair use law - and considering what the Foundation would want to avoid. I suspect if/when the DRV for the above AFD is opened, we may get more qualifications to help. --MASEM (t) 06:06, 10 May 2012 (UTC)

The leading case in general for copyright of lists is going to be Feist v. Rural (1991). As our article summarises,

"In regard to collections of facts, O'Connor states that copyright can only apply to the creative aspects of collection: the creative choice of what data to include or exclude, the order and style in which the information is presented, etc., but not on the information itself."

This addresses the Time 100 issue, and various similar lists that have come up from time to time e.g. from Rolling Stone magazine. If the list represents a work of subjective judgement, then it is copyright. On the other hand, if the selection criterion is objective, such as largest 250 companies in the United States, then there is no copyright in the selection, even if "sweat of brow" work has had to be put in to gather and verify the information.

The new issue here is "what about facts about fictional creations"? I think a reasonable line to draw is to ask: was the list itself part of the fictional creation (and a fundamental part, at that) ? In the case of the AD&D monsters, I would say: yes. The original handbook is basically such a list, and our taking that list essentially supplants its original market role.

In the case of the Pokemons, TV characters and TV episodes, I would say: no, because in those cases the lists are derived from the original fictions, rather than being the essential nature of the original fictions themselves. Presenting such a list is therefore transformative in a way the AD&D list is not. It is also only a comparatively small taking from those original creations; and not likely to impact at all on their original market roles. The J.K. Rowling case is perhaps useful: it was ruled that it was acceptable in general to produce an Encylopedia of Harry Potter; but what was not acceptable was to substantially reproduce what essentially was itself an annotated fictional listing, viz the content of Fantastic Beasts and Where to Find Them, nor to closely reproduce actual prose from the original novels. That was the material that had to be heavily re-written before the book was re-issued.

A list which indexed only notable AD&D creatures would again I think not be a problem. It would not be an exhaustive re-creation, supplanting the role of the original; it would have a transformative aspect; and, perhaps fundamentally, being forbidden to present and discuss items and concepts which had achieved a real-world notability would be an unwarranted interference with 1st Amendment free-speech rights, which is one of the fundamental underpinning drivers of U.S. Fair Use. Jheald (talk) 09:50, 10 May 2012 (UTC)