Do fair use images violate the GFDL?

From Meta, a Wikimedia project coordination wiki
Jump to: navigation, search

The question of whether en:fair use images violate the en:GFDL arose on the English Wikipedia when discussing portions of en:Al Gore article. See also Avoid Copyright Paranoia, permission grant extent, sample image copyright case


This conversation is rather old and largely has been addressed. I stand by all my statements made below (with the exception of changing the word "certainly" to "probably" in one sentence), though the accusations made by others about me are not necessarily accurate. Anthony DiPierro 01:15, 31 May 2004 (UTC)

In discussion at en:Wikipedia:Possible_copyright_infringements#January_9 en:User:Anthony DiPierro asserts that the non-GFDL images are infringing the copyright of the text of this GFDL edit by him to the article, reasoning that the images are not GFDL and arguing that the article is not only the text but the text and image combination and must all be GFDL. Our image use policy and practice is inconsistent with this claim, so I've asked him to clarify whether he wishes to make this a formal infringement complaint and have us remove his text from the article to remove what he believes to be an infringement of his text. Mentioned here because this is the central place for complaints of infringement by creators. Jamesday 13:04, 10 Jan 2004 (UTC)

Note that as of the current edit, the content has been removed, so it's not a problem. Anthony DiPierro 00:52, 11 Jan 2004 (UTC)
Why should his text be removed? It isn't his text that is infringing - it is the photos (or at least he is claiming the photos are infringing - I don't intend to express an opinion on whether that is the case). He released the text under the GFDL, so anyone could put it back in under that. I don't see what you hope to gain by removing text which is obviously not infringing. Angela. 13:32, Jan 10, 2004 (UTC)
My text can only be used under the GFDL if the derivative work is released under the GFDL. Adding non-GFDLed images violates the copyright on my text. Anthony DiPierro 00:52, 11 Jan 2004 (UTC)
I realise that, but shouldn't that mean the images would be removed, not the text? Angela. 00:56, Jan 11, 2004 (UTC)
Yes, the images should be removed. But I was getting into an edit war trying to remove the images, so I removed the text instead. Anthony DiPierro 19:25, 12 Jan 2004 (UTC)
If a third party site frames the Wikipedia article, what portion of that site do you believe must be GFDL? Just the article? Any ads on the same page, served from a third party ad server? Site navigation around the article? Articles it presents under non-GFDL licenses on other pages at the site? If you answer yes to any of the questions, I will suggest that you be asked not to contribute, because you would effectively be blocking most reuse of the Wikipedia articles you contribute to and that's contrary to the core objective of the Wikipedia: producing a superb encyclopedia which can easily be reused. Jamesday 01:26, 11 Jan 2004 (UTC) (portions of the text are struck out because they were interpreted as a threat of banning rather than a discussion of consequences and how we might deal with them. That was clarified at the time via the talk pages of those involved but is left here as struck through text because the consequences are of interest.)

It is his view that any non-GFDL image violates his GFDL license grant (because he considers the image and the text to be a single work). I disagree, for a variety of reasons. However... Since the article on Al Gore is effectively certain to include a non-GFDL image eventually, removal of his contribution is his only useful recourse, because it's certain that he will believe the article to be infringing eventually. I'm happy to accept the desire to remove the contributions of people if they do not like the way the Wikipeida now or in the future interprets the GFDL. This is mostly because it's the best decision to encourage people to participate - handing over control to others always discourages participation, regardless of the merits of the legal claim, so leaving control with the creator best serves the interests of the Wikipedia. As for anyone else who may be using the text outside the Wikipedia, that's a risk the contributor assumes - we can at least try to help them contribute only willingly and on terms of the contract they believe they have. Alternatively, we could ban him, on the basis that he's making contributions which inhibit the way the Wikipedia normally works, but I think that's excessive so long as he's content to accept that removing his text if he disagrees is his only recourse. If he doesn't accept that, we probably have to ask him not to contribute or ban him, because he would be contributing then with the intent of blocking the way the Wikipedia normally works and that's too great a risk to accept, for both us and those who would reuse the articles. I think that we'd prevail in court. I think that we'd lose anyway, by losing contributors and contributions, even if we won in court. If he asks that we remove the history, that has the effect, arguably, of removing our right to use the contributions of others and requires us to delete the whole article. In that case, I suggest that we ask him not to contribute at all and ban him if he continues to do so, because we can't accept giving him that capability. Jamesday 01:17, 11 Jan 2004 (UTC)

You want to ban someone because they are worried that the requirements of the GFDL are being broken? Am I missing something here? Angela. 01:49, Jan 11, 2004 (UTC)
You may be missing the consequences of the interpretation he is expressing. Assume that he considers the whole web page as the content, as he appears to be arguing for images in the pages here now. That would bar sites using ads from using Wikipedia content he has edited, because it's impractical for them to obtain GFDL licenses for the ads served by third party ad servers. Hence my questions about where he draws the line between his text and what he considers has to be GFDL. Jamesday 05:30, 12 Jan 2004 (UTC)
Does Wikipedia plan on using ads? In any case, my interpretation is meaningless. The GFDL means what it means. If it's impractical for third parties to use the GFDL, then maybe Wikipedia shouldn't be using the GFDL. That has nothing to do with the issue at hand, however. As for where I draw the line, that's defined in the GFDL. A "Modified Version" of the Document means any work containing the Document or a portion of it, either copied verbatim, or with modifications and/or translated into another language. I'll go no further into hypothetical cases, except to say that section 7 provides for aggregation with "separate and independent documents or works." Images which are embedded in the document certainly [probably] do not qualify. Anthony DiPierro 19:39, 12 Jan 2004 (UTC) [modified by Anthony much later]
The Wikipedia doesn't currently use ads and it is unlikely that it will as far in the future as can be predicted. Many of the web sites which use Wikipedia content use ads, presenting the ads on the same web page as the Wikipedia article, on its edges and possibly (I have't looked) between different paragraphs of an article. While I'm aware of some cases covering the issue of inline linking, the issue where most contributors take the view that it is not a single document and some take the view that it is, and all provide text knowing that the interpretation normally used is that they are separate has not yet been determined. However, you might take a look at Google image search and notice that it combines its text and images with GFDL and even more restricted works freely on the same web page. My expectation is that a court would rule that your remedy was limited to the removal of your text, in part because you have indicated that you were aware of how the Wikipedia normally works. In the longer term, I would like to see a less restrictive license than the GFDL (something like BSD) and the option for contributors to set a wide range of licenses, subject to them being no more restrictive than the GFDL. For now, expedience says that we should help you to remove the potential for infringement of your text by removing your text, as the DMCA would require if your work was being infringed and without deciding one way or another whether you're right or not. Not ideal, just a very practical solution. Jamesday 09:39, 13 Jan 2004 (UTC)
Once again, whether or not it is legal to attach proprietary ads is not something I'm going to address at this time. Any site which wants to use ads needs to consider this question on their own. My opinion is irrelevant. As for google, it is most likely relying on the system caching exceptions in the DMCA, and as you alluded to, google generally removes content when a request by the copyright holder is made. As to the solution, I think the best solution would be to remove the non-GFDL images, and replace them with public domain images. But removing my text (which was done, by me, and I'm not even the one who brought this up) is the very least you can do. Anthony DiPierro 16:50, 13 Jan 2004 (UTC)
Google can rely on fair use. See en:Kelly v. Arriba Soft Corporation. Arriba Soft was able to proceed as fair use even though Kelly objected. That the work was licensed or not doesn't matter - if a use is fair it can be done anyway, whether it's a GFDL work or not. The GFDL can't restrict fair use because you don't have any right to control fair use - that right was never granted to you but instead is one of the reserved rights not granted to the primary copyright holder. In the case of your edits, you were aware of how the Wikipedia normally works and the benefit to the public from including the images is more than sufficient that I'm confident that the Wikipedia would prevail in court in a fair use case in the unlikely event that it was found not to be in compliance with the GFDL. Jamesday 18:16, 14 Jan 2004 (UTC)
I certainly deny that Google's use may in fact be fair use. Of course, this is utterly offtopic because Wikipedia is not a search engine, and Google is not copying and distributing other people's GFDLed text. Futhermore, Google does respect takedown notices in all the cases I have seen. Back to the topic at hand, of course the GFDL can't restrict fair use. Of course the GFDL could be revoked under section 9 for exercise of that fair use. In any case, what I'm saying is that the use of my text is not fair use. Finally, as to being "aware of how the Wikipedia normally works," I was not aware that Wikipedia regularly includes non-public images without the permission of the copyright holder. Furthermore, I still don't know whether that is the case. The solution to this matter will determine, to a large extent, my awareness of how Wikipedia works. AFAIK right now, Wikipedia will remove the text of copyright holders when Wikipedia illegally creates a derivative work based on that text without releasing the text under the GFDL. As for any court case, in this particular case, where the text consists of only a single sentence, you might even be correct. However, perhaps not, as the inability for me to legally fork Wikipedia content greatly affects the potential market for or value of the copyrighted work. Anthony DiPierro 19:12, 14 Jan 2004 (UTC)
Well, you can deny that Google's use may in fact be fair use, but the court disagreed and I'm writing about law, so I try to go with what the courts say unless I have really good reason for believing otherwise - and in this case I don't, because the court ruled one way, then issued a revised ruling to correct itself.:) That Wikipedia isn't a search engine doesn't matter. What matters is the fair use arguments used to arrive at the decision. Read through them in the full revised decision and apply the logic to the Wikipedia situation and see what result you come up with. As I write below, though, there's really no need to use fair use for the mixture of GFDL article and fair use image, because section 7 of the GFDL applies, IMO, and makes it fine. Jamesday 19:54, 16 Jan 2004 (UTC)
No this guy should be banned for being a troll. Does Wikipedia not ban people like this? He has admitted he is a troll, uploaded inappropriate images, accused people of copyright violations, and is just being a disrupter and vandaliser on other pages. Please look into it. ChrisDJackson
Not a troll, IMO. He's making some useful arguments, with which I agree more than a little, in principle. In practice, the immediate solution is to remove his text, just because we can do that today and can't solve the larger problem as expeditiously. Jamesday 09:39, 13 Jan 2004 (UTC)

One has contributed the work to Wikipedia, it states that one's work can be "edited mercilessly and redistributed at will" on the edit page copyright warning. Once one submits the work it can be edited, if someone puts a copyright violation into the work that does not mean one's text that has previously been contributed is also a copyright violation. It is the text of the other person that violates copyright and should be removed. Regarding the fair use issue, if there is fair use on Wikipedia, then that is not a copyright violation on Wikipedia, if someone reuses it in a fashion that is not within fair use, they must remove the infringing material because of their use. Wikipedia has not violated anyone's copyright, it is the downstream user that has violated it. No where in the GFDL does it state that fair use materials cannot be included in GFDL texts. It is not prohibited. Fair use is not a copyright violation, so one cannot complain if fair use materials are included in Wikipedia. If one wants to make a fair use free fork of Wikipedia one is free to do so, so I do not see what the problem is; please clarify. — Alex756 09:31, 12 Jan 2004 (UTC)

Fair use requires fair use in both directions. It must be fair use to use the images without permission, but it also must be fair use to use the text without permission. Anthony DiPierro 19:42, 12 Jan 2004 (UTC)
>> Fair use requires fair use in both directions. <<
Fair use is defined in the Copyright Act, I see no reference to "both directions" and have no idea what such use of the term fair use means or what one is intending to indicate by the idea of "both directions".
I explained exactly what I meant. "It must be fair use to use the images without permission, but it also must be fair use to use the text without permission." Anthony DiPierro 07:12, 13 Jan 2004 (UTC)
Every fair use is distinct. Using one part of an article can be fair use and using another part of an article may not be fair use. It is use specific. This is no general concept of "fair use" that you can label something as fair use. Please provide case citations for the principle that "Fair use requires fair use in both directions." Thank you, we will happily read the cases and keep them in mind. In any case some one can remove the images under the GFDL, just as someone can re-edit any article and use only part of an article under the GFDL. There are no en:moral rights to integrity in the GFDL and the US copyright law does not generally recognize such a right in these contexts (as I am sure you know). — Alex756 05:48, 13 Jan 2004 (UTC)
I don't deny that it is use specific. I think you misunderstand what I mean by the fact that it must be fair use "in both directions." It's simple, I'm saying that you must comply by the fair use principles for every copyrighted work you are using, not just the images. By not releasing the modified work under the GFDL, you do not have any right to use the text, unless the use of the text is fair use. Technically, Wikipedia is probably in violation regardless of the content of the image, because they have not released the modified work under the GFDL. But in the case of GFDL or public domain images, that's just a minor technicality. As for moral rights, I don't know what you're talking about. That's a straw man, as I never mentioned moral rights. Oh, and by the way, a citation is not going to be possible to produce, because copylefts just haven't been tested in courts to the extent necessary (and AFAIK the GFDL has never appeared in court). Anthony DiPierro 07:12, 13 Jan 2004 (UTC)
See en:moral rights. Jamesday 09:39, 13 Jan 2004 (UTC)
Worth considering that there are two ways to eliminate an infringement. One is to remove the new edit. The other is to remove the contributions of the contributor objecting to the edit. In this case, it's most expedient to remove the original contribution and keep the edit. Jamesday 09:39, 13 Jan 2004 (UTC)

There is no infringement. Use of material under fair use is not infringement. How many times does that have to be repeated? There is no "final" version of any Wikipedia entry, anyone can add or subtract anything and rerelease their version under GFDL. There is no meaning to the term "fair use in both directions" as far as I can tell. Sorry. That is my opinion. You do not have to agree with me. The fact that there is no legal authority as has been requested speaks for itself and fair use has been ligitated in many contexts, it is not dependent on the GFDL to be interpreted by the courts. Wikipedia is in compliance with the GFDL even when fair use materials are included in an article — even the authors of the GFDL have said so. If one wants to start a fair use free Wikipedia fork, they can, that is allowed under the GFDL. However, they cannot unilaterially close down some Wikipedia page because they believe they have some novel interpretation of the law, unless they want to take it to court and find a judge that agrees with them. Once they have released their work into the GFDL domain they cannot withdraw it, that is what GFDL states. You don't want your work to be "edited mercilessly" or "redistributed at will" then do not submit it here. — Alex756 02:51, 14 Jan 2004 (UTC)

My text was not being used under fair use. How many times does that have to be repeated? Anthony DiPierro 03:59, 14 Jan 2004 (UTC)
If you post something on Wikipedia that is not a copyright violation, others may add fair use texts to that contribution. Those people, adding fair use material are not violating the GFDL because they are not engaged in any kind of copyright infringement. There is nothing stated in the GFDL that prohibits fair use within a GFDL document. If someone reuses the GFDL released text in a manner that violates the copyright of some third party it is that reuser that is engaging in copyright infringment (it may be unintentional, but it is probably negligent as everyone who publishes something has a due dilligence obligation to fulfil). Neither the original poster nor the person who has put the fair use material in the GFDL has engaged in an infringing action. There is no "two way" concept in licensing, it only works in one direction. The person who infringes is the person/entity who does not do their due dilligence to determine if the work they wish to relicense has a clear en:chain of title. Trying to argue that WIkipedia has a duty to check the clarity of title for third parties is a joke in my personal opinion (note that this is not a legal opinion, even though I am a lawyer, it is just my personal opinion. If anyone wants to hire me to issue a legal opinion my rates are $200 per hour and it would probably take me about five hours of research and drafting to issue a legal opinion letter on this topic). We are in the process of creating an online encyclopedia, most people who reuse content will be using it within a context that allows them (commercial or not) to add information that is most probably in the public domain anyway (the concept of fair use is ancilliary to the public domain in a lot of ways). Alex756 16:53, 16 Jan 2004 (UTC)

Your text was being used under the GFDL. However, since you don't accept what we write, lets try what en:Richard Stallman writes. Please see [1], [2] and the rest of the discussion at [3]. Jamesday 19:15, 14 Jan 2004 (UTC)

  • The GFDL requires that derivatives be released under the GFDL.
  • Richard Stallman's opinion is irrelevant.
  • [4] is not a comment by RMS.
  • Regarding [5], of course if it's fair use it's not infringement. However it is not fair use.
  • Regarding the rest of the discussion, as well as the link above, I believe the RMS quote is being used completely out of context. In fact, I pointed this out in the very discussion you're referring to. If you're going to use his non-legal opinion as a basis for any argument, you should at least show the entire question and answer in context. Anthony DiPierro 19:29, 14 Jan 2004 (UTC)

I don't agree that it was taken out of any significant context. It seems entirely compatible with section 7 of the GFDL and what is expected for aggregated independent works which are being distributed via the internet and a web browser for convenience of reference. Seems unlikely that the image is a work derived from a text document. Also seems unlikely that an image which can be linked with many different documents, which retains its own, completely independent, version history, and which is revised completely independently from any document it may appear with somehow becomes a derived work. Richard Stallman's opinion is hardly irrelevant. He's the person who can release a version of the GFDL which retroactively explicitly says that this is fine and makes this discussion moot.:) Jamesday 19:54, 16 Jan 2004 (UTC)


Just to give my opinion (en:IANAL):

I feel that the image and the text, where the image is embedded in the text, form a single derived work. My reasoning is based on the various cases where people created HTML pages that embedded content from another server - there are a bunch of examples at [6]. In these cases, it was argued that inline linking creates a derivative work. Note that the GFDL only gives permission to create a derivative work if the resulting work is also released under the GFDL.

I do not feel this causes a problem with having banner ads around Wikipedia articles. As I wrote on en:wikipedia:verbatim copying, one can argue that these banner ads are website equivalents to the "cover pages" that are explicitly permitted in section 3 of the GFDL. However, banner ads in the middle of the copied text would not be appropriate (unless released into the GFDL). I do understand James's issue, however. Martin 19:17, 14 Jan 2004 (UTC)

Those cases tend to deal with situations where the creator doesn't licence the work to the place which is presenting it. That's not the case here - both the article and the image are licensed to (or are fair use for) the Wikipedia. The removal cases you see there were done largely out of courtesy, to avoid legal costs or as temporary orders. en:Kelly v. Arriba Soft Corporation (2003) applies as the most recent US case I'm aware of which got as far as a decision. There may still be further action based on any revised ruling in the case for the full-size images, though it appears most unlikely to me, for the revised reasoning in the appeal will also to a large extent apply to the full-size images and I think that it will be found to be fair use as well. I expect it'll be settled or dropped as a waste of money. Jamesday 19:54, 16 Jan 2004 (UTC)

Not if you license the derivative under the GFDL. Anthony DiPierro 05:04, 16 Jan 2004 (UTC)

It is not useful making assertions that are not backed up by reasonable arguments. Alex756 16:59, 16 Jan 2004 (UTC)
I don't see how there's an argument. Fair use images don't violate the GFDL. What violates the GFDL is creating a derivative without licensing that derivative under the GFDL. Want an argument, look at the GFDL. It says when you create a derivative, you have to license it under the GFDL. It doesn't say "except fair use." Anthony DiPierro 04:39, 17 Feb 2004 (UTC)

Later discussions[edit]

I've written a proposal for how we should use "fair use": http://en2.wikipedia.org/wiki/User:Imran/fairuse

Anyone care to comment on it? --Imran 00:30, 21 Jan 2004 (UTC)

My concern is that fair use denies us our right-to-fork, and ability to host a mirror outside the USA. Fair use does not exist anywhere else. What counts as fair use in the US is just plain illegal here. The use of fair use stops the internationalisation of the project. 81.187.43.179 22:18, 29 Jan 2004 (UTC) (en:User:Secretlondon)

Fair use is something that is very hard to define even within the US. For example, if I make you a copy of a textbook excerpt, that's probably fair use - but if I give you an MP3 over Kazaa, that isn't. The other thing is that fair use does not include licensing something to the entire world under GFDL. I may have fair use to copy a section of text for my class - but I do not have fair use to put it up here and license it to 6.4 billion people under GFDL. Pakaran 14:04, 5 Feb 2004 (UTC)
Is not fair use included in the [[[:w:en:Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works|Wikipedia Berne Convention]]]? I am not sure where these people live that do not allow 'fair use' but almost all, except a small handful ( >10 ) of countries have signed the Berne Convention, and, so far as I know, the Berne Convention has stipulations for fair use. Anyone care to help me dig up the relevent sections? --ShaunMacPherson 09:32, 17 Apr 2004 (UTC)
Please compare En:fair use with En:fair dealing. The prescribed, previously agreed, list of fair dealing situations is quite dissimilar to fair use - for example, cable TV was a completely new use in the US and was found to be fair, but it couldn't easily have been pre-written as fair dealing, so it may not have been fair dealing. Fair use furthers progress more effectively than fair dealing, IMO. Fair use also seems to generally be significantly more broad than fair dealing in practice, even where both might cover a use. Jamesday 03:24, 3 Jun 2004 (UTC)

FWIW, I think this argument is correct. If you make a derived version of a GFDL text (such as, for example, an article I submit to Wikipedia), you must release the entirety of that derived version under the GFDL. If as part of your derived work you include images to which you do not own the copyright, but which you include under the fair use doctrine, then you are unable to release that portion of the article under the GFDL, and thus are not in compliance with your obligation to release the entire work under the GFDL. In short, any modification you make to a GFDL text must itself be licensed under the GFDL, and if your modification is "I added an image", then that image must be licensed under the GFDL. I don't really see a way around that. --Delirium

Well see the above discussion :-). However, perhaps because IANAL, I still not certain that ongoing issue that because we are non-profit and educational we have greater fair use provisions than other for-profit and education derived projects. They will have to remove some fair use images from their product and we are making it unreasonably hard for them to do so. There is still a very strong case for having to mark each image upload GFDL or free use. All currently uploaded images would go in an "unknown" category until transferred. This solution would also help with the very real issues relating to internationalization highlighted by en:User:secretlondon. Pcb21 13:56, 5 Feb 2004 (UTC)
I agree. IMO we should take full advantage of our non-profit educational fair use defense for images and other media files (NOT for text). But to do so we need to be able to categorize images so that commercial downstream users can still use a Wikipedia database copy - it would be up to them to set one master switch to exclude the display of all images that are marked "special permission" and "Fair use for non-profit and/or educational use" (in fact "special permission" images could only be displayed on Wikipedia, so all downstream users would have flip that switch). That gives them the ability to still easily use our content and gives us the ability to add value to our version for our readers. --mav 23:23, 5 Feb 2004 (UTC)

This needs to be decided on. Someone has made a fairuse msg for tagging. I uploaded some images of members of the cabinet and got screamed at. They are clearly not going to call the police but the current situation is uncomfortable, to say the least. 81.187.43.179 21:03, 5 Feb 2004 (UTC) en:User:secretlondon.

I agree that tagging resolves most of the practical problems, but I'm still not sure it complies with the GFDL. It was my understanding that the entire purpose of the GFDL is to allow downstream users, commercial and non-commercial, to use the entire work under the terms of the GFDL. If the work includes portions that commercial downstream users cannot use, then you're not in compliance with the GFDL. In particular, consider the situation where a company creates a GFDL text, and we at Wikipedia add the sort of fair use images to it that are fair use for us but wouldn't be fair use for them. Now the company is prohibited from redistributing this derived version of its own article, which is explicitly the sort of thing the GFDL was written to prevent. --Delirium 02:48, 6 Feb 2004 (UTC)

Delerium, I think that your interpretation is wrong. The experts I have consulted on this (including Richard Stallman and Larry Lessig) find no merit in this argument. Remember that the GNU FDL works inside the framework of copyright law. The GNU FDL is a way for authors to conditionally give up some of the rights they have under copyright. It is not a claim to be able to impose additional restrictions above and beyond what copyright grants. Since fair use is legitimate in copyrighted works, an author may use fair use. But this doesn't preclude that author from releasing the work under the GNU FDL, because the GNU FDL does not pretend to impose additional restrictions beyond copyright, but rather to merely give up some rights of restriction that are normally a part of copyright.

Jimbo Wales 13:59, 6 Feb 2004 (UTC)

Yes, you are right, your point makes sense Jimbo. The GNU FDL based on copyright law itself. Fair use is permitted regardless if it is GNU FDL or not. Everyone should visit Avoid Copyright Paranoia also, has many good points and are argued very well. --ShaunMacPherson 09:42, 17 Apr 2004 (UTC)
Though our grounds for using fair use images may be solid for the reasons you describe, there is still a strong (and so far unopposed) argument for users having to tag images as either fair-use or GFDL/public domain on upload - it helps re-use and it helps internationalization. Do you support this, Jimbo? If so I would feel a stronger mandate to nag one of the developers about it on IRC :)? Pcb21 14:48, 6 Feb 2004 (UTC)
I don't think that's a good interpretation. The FDL is indeed a way for authors to conditionally give up some of the rights they have under copyright. But it's conditional upon the user agreeing that all their modifications will be GFDL'd. If you choose to make non-GFDL'd modifications, such as adding fair use images, then the GFDL's conditional grant does not apply, and you have no rights to use my work. In short, if you don't GFDL your modifications, then I don't give up my "all rights reserved" copyright on the work. --Delirium 23:06, 6 Feb 2004 (UTC)
It may help to consider what fair use is. It's one of the rights not granted to a primary copyright holder. That is, if a use is fair, that specific use is in the public domain. That makes such things completely compatible with the GFDL. It's somewhat strange as a concept to have conditional public domain use but that's how it works once it's determined that the right was never granted to the primary copyright holder. The purpose of the use of the GFDL here isn't to force compliance with the most restrictive interpretations possible. It's to make the text as free as possible so we can build a superb encyclopedia and share the wealth of knowledge as widely as possible. Arguing for restrictions on how superb the encyclopedia can be doesn't really serve our purpose. In the event that a contributor disagrees with how we use the GFDL to facilitate our objective, we should definitely not do anything to inhibit them removing their contributons, for making life as easy as possible for contributors who disagree also serves our purposes, because it's the best way to encourage other contributors. Jamesday 03:21, 11 Feb 2004 (UTC)

A summary attempt[edit]

I think this is a useful and interesting reading, but it is a little too long. Also, it spinned off to some other topic at this point. I tried to summarize the situation and the resolution (I am not sure there is a consesus) below. It is a summary, for the credits please see full discussion above.

We have a given article which includes and hence is a derivative of (1) a given text released under GFDL and used here under GFDL, and (2) a given image which is copyrighted and used here under fair use doctrine. The question is: Can we release the article under GFDL? The concern is that this action licenses the image as well as the text. The short answer seems to be Yes, and follows the reasoning.

An image, when legitimately used under fair use doctrine, can be treated similar to public domain, and hence can be relicensed under GFDL. If further usage and distribution lead to the loss of fair use status of the image, default copyright law applies and the image and so the article cannot be distributed at all.

This prohibition of further redistribution of the article is a result of the actions of the licensor and not Wikipedia and hence we are not in violation of GFDL, we did not prohibit further redistribution. To be on the safe side we should tag the images (?).

To conclude (and I will conclude by en:Godwin's law :-) ) I would like to give an example on why I think the argument is sound. Parts of Wikipedia regarding events of Nazi Germany would be illegal in France, Israel etc. A printed copy of full Wikipedia cannot be distributed. By releasing the contributions to these articles we are not violating GFDL; even though further redistribution is prohibited it is a result of the circumstences. ato 00:11, 19 Aug 2004 (UTC)

That's a fair summary, esssentially what Richard Stallman opined at [7]. The aggregation of independent works aspect is another reason it's fine, though I don't know what RMS would think of that - RMS apparently didn't see the point, presumably because he appeared to understand that a copyright holder is never granted any rights to control a use which is fair. Of course, for our objectives, we do want to make it easy for people who must use fair dealing instead of fair use, or can't or don't want to use either, to avoid such things, and tagging and filtering lets us help them to do so. Ideally, of course, we'd have even more obviously and more broadly free replacements for all of those images eventually, wherever that is possible. Jamesday 03:21, 19 Aug 2004 (UTC)

One can never grant more rights than one has. Having said that it is important to keep in mind that fair use is a paradoxical area of copyright law, it is the exception to the rule that makes the rule work. At the fringes of copyright law is the idea, expressed in US law (Title 17 USC § 102(b)) which states:

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

The fact of the matter is that ideas, concepts, principles include such things as history, trademarks, products, images of people and other such things. We go on and on here about "fair use" as if it is some evil thing, but the fact of the matter is that not every copy is covered by copyright as we know from issues related to mechanical reproductions of public domain works, such as photographs of old photographs. Now, some would argue that any copy is a copyright protected work, this is what Queen Anne's Statute of 1710 was saying and British copyright law (and fair dealing provisions) have been stuck in this interpretation for centuries. The fact is that words in a dictionary are not subject to copyright and if an encyclopedia is the conceptual extension of a dictionary applied to concepts, theories, facts, historical developments then if Wikipedia is truly collaborative writing then the work that is created will be so generic as to be beyond the powers of copyright. Likewise using thumbnail images of works of popular culture, generic photos of famous people, etc. have such a weak claim to copyright that it is hard to imagine that anyone will have any success. The fact of the matter is that the real problem with Wikipedia is not fair use but the impossibility to verify the chain of title. You guys are all arguing about the wrong problem IMO! I would be asking such questions as, why let anonymous people post information that may be copied from somewhere if we cannot verify that they created it. The reason commercial publisher can publish material is because they have done their due dilligence and can prove, to a reasonable person, that they do have copyright so that their errors and omissions insurance does not get cancelled. This is really a much more fundamental problem with the commercial exploitation of Wikipedia than fair use which is relatively benign problem, if you can call it a problem at all. If you really want to create a truly GFDL compatible encyclopedia then chuck out all the content and get all the contributors to sign affidavits before they make contributions to be able to prove that they did not copy it from anyone else, then you will have GFDL content that has some kind of warranty that could be relied upon by a commercial publisher. All this whinning about license compatability and GFDL/fair use incompatability demonstrates to me that most people on Wikipedia have little concept of what the commercial publishing world is all about. Just my opinion, for what it is worth, cheers! [[User:Alex756|— Alex756 | talk]] 05:17, 11 Feb 2004 (UTC)

I removed my own message. --mav

You "folk" miss the point entirely. I was saying that the information in Wikipedia is encylopedic, just like words in the dictionary are part of language, not a copyrightable expression of language. To suggest that Wikipedia entry might not be copyrightable is to suggest that the reader is on another planet. If what you say is true then why later in my text am I talking about determining who the authors are of individual contributions? Huh? Such accusations about the alleged meaning of my words not only do not make any sense; some might consider that they border on defamation. I have never been beaten into silence, that statement is completely without merit and a wrongful accusation; it just shows the childish approach of the writer who is making that statement. The fact of the matter is that many of the so-called we" do not understand what copyright law is and how it interacts with contract law; you "wee folk" are ignorant about it and about what needs to be discussed when arguing about issues of ownership in this complex area of property law.

This page is not about the copyrightability of Wikipedia. It is about the FDL and fair use and the use of material in Wikipedia that is considered to be fair. What I am saying — and listen carefully because next time I have to explain it I will send out a bill for my time at $200/hour — fair use does not cover generic facts and this is why Wikipedia can use these materials, because ideally they are not copyrightable, nor are they even covered by fair use, they are beyond the reach of copyright and these elements of an encyclopedia are never going to be covered by copyright, be it in Britanica, Grolier's or Larousse. Facts cannot be copyrighted; only the expression of ideas is that which is covered by copyright to the extent that it is creative and original. No one is arguing about that and any anyone who reads such an the opposite interpretation into my words is really just trying to create negativity and animosity. How very, very sad and childish. Have a nice day. [[User:Alex756|— Alex756 | talk]] 08:10, 12 Feb 2004 (UTC)


I removed my own message. --mav

I never said that Wikipedia contributions are generic, there is no such thing as "ideal Wikipedia content" that is a device to argue that there is knowledge that cannot be copyrighted and allows liberal fair use. The fact of the matter is that a grant of copyright under the FDL is practically into the public domain. Why? Anyone can use your work and make money out of it without giving you a penny. The whole point of copyright law in the US is to protect the "exploitation" of an author's work. There is no moral rights protection for text works in the US where Wikipedia is released. A copyleft license is a way to say, we are releasing it but would like you to remember that we wrote it; it is a contractual license that is attached to a very broad license that really giving up all economic rights; that is exactly what the public domain in the US is all about.

Bringing complaints in federal court have to do with registered copyright. Is anyone here registering their contributions to Wikipedia under the rules of copyright law? I doubt it and thus Wikipedia cannot really control anything that downstream users want to do. I have tried to put in provisions that give Wikipedia volunteers some rights to do enforcement, but no one wants to adopt that I think your statement is "let the Board of Trustees" decide and then you string together my arguments asking for change suggesting that I am saying that there is no copyright in Wikipedia. Don't you see what you are doing or are you just irrational?

I have tried to make suggestions to change the state of affairs and improve the situation so that Wikipedia content is protected to a greater degree, but NO ONE IS LISTENING TO ME. I have been very patient over the last six months but this public attack of me is really the last straw, rather than try to undestand what I am trying to do to strengthen Wikipedia you accuse me of this ridiculous interpretation that you and your "pals" have dreamt up — THIS IS IDIOTIC. If you want to shoot the messenger that only shows your ignorance. You wanted to have submission standards and terms of use last summer and then you have blocked me at every step when I have tried to do things that strengthen protection for Wikipedia. I put a lot of work into it and what do I get, this idiotic attack!! Well you and your "pals" can do whatever you want. Good riddens to you.

I think you are acting in a very two-faced manner here, rather than working with someone who wants to protect Wikipedia you are attacking my statements that are attempts to get people to change things for the better and are saying that this is my opinion. THIS IS CRAZY (sorry for shouting but I am really getting sick of this unfounded and stupid attack by you mav, this is now getting way too personal). I am sorry you are so ill-informed and so arrogant in your point of view, maybe you need to apply the NPOV principles to your own outlook on life. It would obviously do you good.

If you want to protect "your" rights the way you and your "pals" want to do I suggest that you start your own encyclopedia, I will be happy to work for your NPO/business at my standard rates. I will ask that you pay a $5,000 retainer; you can do so at my web site [8] via paypal. I will not waste my precious time on Wikipedia anymore. I am blanking my user page and talk page and asking Jimbo that my accounts be deleted. I have better things to do with my time that deal with people who are not listening and can't appreciate the efforts being taken to try and help their group. I only have a limited amount of pro bono time to contribute. -atr

Alex, why did you not say that before? This is the first time that I remember that you have connected the concept of our current weak copyright claim with what you were trying to do with the submission standards (something that I have been hepling you get through - but that takes time). I am very, very sorry that we have failed to communicate and and also very sorry that that failure has caused you consternation. I am obviously an idiot on this point, but others were also alarmed by your statements taken alone. I do very much wish that you will come back after your wikivacation. --mav 23:11, 12 Feb 2004 (UTC)

Do non-fair-use GFDL-incompatible free images violate the GFDL?[edit]

The case of fair use images seems to be resolved above (in the "A summary attempt" section and the paragraph above it). But what about images available under GFDL-incompatible licenses (e.g., Creative Commons), when their use does not form fair use? The same argument can be made as before: adding such an image to an existing article creates a derivative work of a work licensed under the GFDL, hence the full derivative work must be released under the terms of the GFDL, but the image cannot be released under such terms. How is this resolved? Kzon 22:45, 4 February 2006 (UTC)

It is resolved by the fact that there are two seperate copyrights (or indeed many more for the avearge WP article). The copyright in the derivative work is released under the GFDL, regardless of the fact that the derivative work itself might not be useable without infringing the copyright in a part of it. It is a similar situation to a sound recording: the person who "fixes" a sound recording has a copyright in that recording, but he or she might not be able to use the recording if it infringes the copyright in e.g. the music which is recorded.
The GFDL allows me to reuse material (with attribution), but does not allow me to claim a copyright over that material. It also requires me to license my modifications of the material under the GFDL. However the GFDL does not, and cannot, have any effect over third party copyrights. Physchim62 08:43, 31 October 2006 (UTC)