Talk:Wikimedia Argentina/Open letter regarding URAA

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devout[edit]

That should read "devote", not "devout". "devote" = "dedicar"; "devout" = "devoto". --Rosenzweig (talk) 22:27, 24 February 2014 (UTC)

Corrected. Thanks for noting it. --Galio (talk) 01:42, 25 February 2014 (UTC)

“Repeated statements”[edit]

Hi,

You mention in your letter that « [you] acknowledge that the Wikimedia Foundation BoT and its Legal team have repeatedly stated, as has been reinforced in recent communications, that images shouldn’t be deleted unless we receive a takedown notice, and that it has not received a single URAA-motivated notice to date. ».

Could you please point to these « repeated statements » from the Board of Trustees and the Legal team? To my knowledge, the Legal team has weighed in on the URAA issues in the following instances:

  • February 2012, where they said that “If a specific work obviously has restored copyright under these guidelines, Commons may choose to apply the regular speedy deletion procedure used for potentially copyrighted works. If not, a more comprehensive analysis by the community may be needed.” and that “With the possible exception of obvious copyright infringements, the Commons community should still examine media on a case-by-case basis.”
  • February 2013, where the said that “The community should evaluate each potentially affected work using the guidelines issued by the Legal and Community Advocacy Department, as well as the language of the statute itself, and remove works that are clearly infringing”.

As for the board, I am only aware of their February 2014 answer to WM IL, they explain that “We are not recommending that community members undertake mass deletion of existing content on URAA grounds, without such actual knowledge of infringement or take-down notice”.

On all three instances, it is my understanding that although the WMF folks have quite clearly discouraged against mass-deleting stuff on the sole basis that a {{Not-PD-US-URAA}} was slapped on it[1], it would be a stretch to say they urged the community to wait for take down notices − rather, they encouraged the Wikimedia Commons community to deal with files which come under her scrutiny as she always does.

  1. Which, indeed, was the conclusion reached by the Commons community two years ago

Jean-Fred (talk) 01:13, 25 February 2014 (UTC)

Indeed, those are the three official statements we have notice of. The February 2013 statement also reads that "If a work’s status remains ambiguous after evaluation under the guidelines, it may be premature to delete the work prior to receiving a formal take-down notice, because these notices often contain information that is crucial to the determination of copyright status" and that "the complexity and fact-intensive nature of the URAA analysis makes a more active approach imprudent", which to our understanding does suggest waiting for takedown notices before further action. There is also a line on the Foundation's reply to the letter from WMIL that implies that WMF has no actual knowledge of copyright infringrement, because otherwise it would have conducted massive deletions by itself: "the WMF does not plan to remove any content unless it has actual knowledge of infringement or receives a valid DMCA takedown notice". The following line, "We are not recommending that community members undertake mass deletion of existing content on URAA grounds, without such actual knowledge of infringement or takedown notices", which you quote, appears to refers to the Foundation's lack of such knowledge. We know that has not been the criterion the Wikimedia Commons community has followed and we recognize her autonomy; that is the reason why we considered that an open letter was more suitable at this stage than writing to the Foundation BoT. Best, Galio (talk) 02:00, 25 February 2014 (UTC)
Your quotes from the Legal team's Feb 2013 statement seem selective to the point of being misleading (unintentionally I'm sure). Immediately before the first part you quote, they said "Ultimately, all Wikimedia projects are required to comply with the recent changes to US copyright law, but it remains unclear how these changes will affect individual works. The community should evaluate each potentially affected work using the guidelines issued by the Legal and Community Advocacy Department, as well as the language of the statute itself, and remove works that are clearly infringing." (Jean-Fred already quoted the last part of this above.) In other words, they say that all Wikimedia communities, including Commons, should delete some URAA-affected files without waiting for takedown notices - the opposite of what your letter claims.
I do find it disappointing that open letters are being issued that essentially throw mud at other Wikimedia communities based on misconceptions. Did you discuss this letter with any knowledgeable Commons volunteers before releasing it? --Avenue (talk) 22:01, 25 February 2014 (UTC)
The statements by the Foundation talk about copyright infringement whereas Commons reads that as protected by copyright. Even if a file is protected by copyright, some uses of the file may count as fair use under United States law. Is the Foundation suggesting that Commons should keep those files which, while being unfree in the United States, aren't infringing on the copyright of the works (because of fair use or other reasons)? I note that Commons:COM:FU and Foundation:Resolution:Licensing policy both explicitly forbid fair use on Commons, but I think that the URAA statements potentially imply something else.
Interestingly, Legal and Community Advocacy/URAA Statement suggests that there are two requirements for deletion: it must be an infringement and it mustn't be possible to use the image under an EDP. This wording looks strange; an EDP can't permit a project to host unfree files which are infringements, only unfree files which can be used under a fair use claim (or similar).
However, if Commons decides to keep those images which can be used under a fair use defence, this could make file availability unreliable: if a file suddenly ceases to satisfy fair use requirements due to developments elsewhere on Wikimedia projects, the file would have to be deleted from Commons.
It was noted that the Foundation states that it is not aware of any actual infringements. This is something which all content providers have to state, whether they actually are aware of infringements or not, as DMCA safe harbour provisions do not apply if the content provider is aware that a specific file violates copyright. This statement therefore says nothing about the Foundation's opinion; it is just something which the Foundation had to write because of legal restrictions. --Stefan2 (talk) 00:21, 26 February 2014 (UTC)
Sure that my quotations are selective —if you read through, my intention was not repeating entire phrases but the parts that Jean-Fred decided to ommit in his previous message, to give the idea that the prevailing interpretation of what WMF Legal said is arguable, as reinforced by the BoT's reply to the letter from Wikimedia Israel. Saying that the Foundation considers that the community "should delete some URAA-affected files without waiting for takedown notices" is also a selective interpretation that assumes that all the deleted works were "clearly infringing" the law. The Foundation also states that such extreme measure should only be taken when there is complete and unambiguous information about the copyright status of every punctual file, and to our understanding it suggests that unless we receive a proper DMCA takedown notice there won't be such information (Feb 2012 guidelines: "With the possible exception of obvious copyright infringements, the Commons community should still examine media on a case-by-case basis"; Feb 2013: "Wikimedia projects do not need an exemption under the EDP to continue hosting affected works that have not been subject to take-down notices", "If a work’s status remains ambiguous after evaluation under the guidelines, it may be premature to delete the work prior to receiving a formal take-down notice, because these notices often contain information that is crucial to the determination of copyright status"; Feb 2014 reply to WMIL: "The WMF does not plan to remove any content unless it has actual knowledge of infringement or receives a valid DMCA takedown notice. To date, no such notice has been received under the URAA. We are not recommending that community members undertake mass deletion of existing content on URAA grounds, without such actual knowledge of infringement or takedown notices" —emphasis is mine). I understand, as Stefan2 says, this can be not more than a legal formula, but still if the Foundation had that information it would have deleted the files by office action.
I'm sorry if any Commons volunteer feels offended by our letter or by others'. We did discuss our letter with chapter members, many of whom are Wikipedia editors, and we took into account the worries from different volunteers that have approached us —for instance, the author of literally thousands of articles on Argentine architectural history on es.Wikipedia who has seen his efforts deleted en masse by way of a radical and restrictive interpretation of the legal options at hand. Nobody is discussing that, at least as long as Wikimedia only has servers in the US, we are forced to comply with its law. The question here is if the current approach towards URAA is (a) the only possible one, (b) the best for the advancement of our mission. Many have the impression, and I'm sure they'd be happy if that proves to be a misconception, that a times some Commons' admins act like if this project were about playing the devil's advocate instead of curating a collection of free educational contents. Sure, many images are potentially copyrighted under URAA, but instead of thinking what options we have at hand to preserve as much knowledge as possible the prevailing reasoning seems to be moved by quite the contrary, or at least has that result: all what can be deleted is being deleted, even in cases where there is no information about the virtual copyright holder. Best, Galio (talk) 01:03, 26 February 2014 (UTC)
I think that many Commons users are quite unhappy about the effects of URAA. However, the problem is in no way unique to the United States. See the page w:Rule of the shorter term, which tells that the rule of the shorter term isn't used in multiple Spanish-speaking countries, making these photographs unfree in those countries. For example:
  • Mexico: photographs from Argentina enter the public domain 100 years after the death of the photographer, but some pre-1952 photographs are already in the public domain because of transitional rules from older laws, see Commons:Commons:Copyright rules by territory/Mexico.
  • Colombia: photographs from Argentina enter the public domain 80 years after the death of the photographer
  • Paraguay: Commons:COM:CRT#Paraguay tells that photographs from Argentina enter the public domain 70 years after the death of the photographer.
  • Venezuela: w:Rule of the shorter term and Commons:COM:CRT#Venezuela suggest that photographs from Argentina enter the public domain 60 years after the death of the photographer.
By using photographs on Spanish Wikipedia which do not satisfy these criteria, it becomes illegal to use Spanish Wikipedia articles in several major Spanish-speaking countries. One purpose of Wikipedia is that anyone should be able to use its content, which clearly isn't the case here. In this sense, US law is "better": 95 years after publication (or 70 years after the death of the photographer) is shorter than the Mexican term of 100 years after the death of the photographer, and US law typically respects Argentinian law if the copyright expired in Argentina before 1996 (unlike the four countries listed above for which the copyright status in Argentina in 1996 is of no relevance). --Stefan2 (talk) 16:02, 26 February 2014 (UTC)
And what does it have to do with this letter? Are the servers hosting Commons in Spanish-speaking countries? Also, does the fact that this case is not unique to the US means we must agree with it? --Maor X (talk) 09:34, 27 February 2014 (UTC)
Galio, thanks for saying sorry. I admit I did feel offended by your letter. But I appreciate your chapter members' concerns, and while responsible curation involves pruning as well as creating and collecting content, I have no desire to see us deleting more files than necessary. More exploration of our legal options in providing free educational content would indeed be helpful.
Stefan, you make good points as always. I've often found the inconsistencies in legal frameworks within the Anglosphere to be frustrating, but they seem fairly minor in comparison with the differences between Spanish-speaking countries. --Avenue (talk) 20:24, 26 February 2014 (UTC)
Certainly, this issue is not so simple. If this had a simple solution, probably it would have taken only two or three RfC, two votes and some arguing in other talk pages, just regular wiki stuff. However, it is not. IANAL, but for what I’ve seen not everything has a clear solution; in fact, they have to bring the URAA issue to the Supreme Court so someone can finally take a decision.
The idea of re-opening the upload of local files to the Spanish Wikipedia is, for us, the last option to save thousands of images that have been deleted. Today, Spanish Wikipedia is one of the 6 Wikipedias that doesn’t have local uploads enabled and the largest one by margin, and we like that. Not only this way we support a great project like Commons but also it is easier for the Spanish-speaking community to maintain. So, trust us when we say that it is our last resource.
However, it is possible. As you can see here, very few Wikipedias don’t accept non-free content (being Dutch, Swedish and Spanish being the largest). So, it is not something reserved to small Wikipedias or those focused on a particular country: French Wikipedia has an exception and it serves not only France, but Canada, Switzerland and several countries in Africa. Probably, not all of them have compatible copyright laws. The same with Arabic or English in fact. That’s because the EDP doesn’t have to be strictly based on the law: the resolution about Licensing policy (2007) says only that the use of non-free material should be “minimal” and gives several examples (logos, historical materials not available otherwise, etc). But it doesn’t say it should follow the law of a particular country (not even one related to the main user country of a Wikipedia). Yes, en.wiki EDP is based on the US law, but fr.wiki EDP is not based exactly on French law: it was adopted by the community for particular exceptions (coins, moderns buildings and logos) and one of them goes directly against the French law dispositions.
Spanish Wikipedia can potentially adopt an EDP for the particular case of URAA-deleted images on Commons, even though there is no uniformity between the laws of the Hispanic American countries – in fact, probably there is not even jurisprudence regarding this situation within Latin American countries. It can be based in some legal parameters, but for an EDP, it only has to comply with the Licensing policy of the Wikimedia Foundation. -Osmar Valdebenito, B1mbo (talk) 01:19, 27 February 2014 (UTC)
And according to the licensing policy of the Wikimedia Foundation, an EDP would have to be "in accordance with [...] the law of countries where the project content is predominantly accessed". Presumably, large Spanish-language countries such as Mexico (100 years p.m.a., no rule of the shorter term) fall in that group of countries. --Stefan2 (talk) 01:29, 27 February 2014 (UTC)
Well, EDPs are a funny animal. In their February 2013 statement, Legal explained that EDP were not the solution to the URAA issue, as “the EDP can loosen Wikimedia policies that are stricter than US law, but it cannot be used to circumvent the law itself. Because the law is the limiting factor with regards to hosting works with restored copyright, the EDP cannot provide a solution.”. Yet, in the following sentence and then paragraph, they more or less explain that URAA files could be hosted if their status is “ambiguous” and in the lack of a takedown notice. As the status of URAA files could arguably be called “ambiguous” anywhere else than Commons, I suppose that effectively such files could be locally hosted. So yes, I believe that Spanish-language reenabling local upload is a very real possibility, which I would hate to see happen.
(Ultimately it all comes down to the community policing its own project. I can say that there is some, er, oversight with the French EDPs because the community seems to tacitly agree not to look too hard [)
Jean-Fred (talk) 09:03, 27 February 2014 (UTC)
They actually say "ambiguous under the guidelines", and those guidelines reflect US law, so I suspect hosting URAA-affected files "locally" on the relevant Wikipedia language edition would violate WMF's licensing policy. They could be uploaded to a separate site like Wikilivres, but that doesn't enable their use within Wikipedia.
I gather the French Wikipedia situation is slightly different in that it seems to only violate French law, not US law. --Avenue (talk) 19:21, 27 February 2014 (UTC)
Well, yeah, but without going into the specifics, don’t you agree that the general tone of the statement seems to be that URAA files could be accepted under an EDP? Sounds like that to me.
As for fr.wp: Hmmmm, that is true − the logotype exception is abused a lot, but in a way that would be probably acceptable under a fair dealing policy ; as for the recent building exception, the USA do have FoP so no problem either. Jean-Fred (talk) 19:59, 27 February 2014 (UTC)
The fr.wp distinction may not make any real difference, since the [[wmf:Resolution:Licensing policy|WMF's licensing resolution] still says that fr.wp's EDP should respect French law.
As for the general tone of WM Legal's Feb 2013 statement, the main theme I see coming through consistently is the need for us all to follow US law. The main wiggle room it finds for URA-affected files is not via EDPs, but how to respond to ambiguity regarding a work's status. As we were discussing before, I think they indicate this is to be evaluated in the context of US law, regardless of which project the file is hosted on. So I don't see that es.wp re-enabling local uploads would allow them to host URAA-affected works that Commons cannot, except as would be allowed for any work still protected by copyright - e.g. via fair use. --Avenue (talk) 22:57, 27 February 2014 (UTC)

“Massive deletions” & “burden of proof”[edit]

You wrote in your letter “over the last months certain Wikimedia Commons administrators have conducted massive deletions of these contents, in many cases involving entire categories.”

I am utterly baffled by the language used here, which would call for a truckload of inline decorations like {{Weasel}}, {{Citation needed}} and so forth. Please provide some references to back up your claims, such as pointers to such URAA related deletion requests, or better an exhaustive list of content deleted.

There seems to be a deep misunderstanding of how deletions are handled on Wikimedia Commons. There we routinely delete media by tens and tens. The fact is that deletion requests involving entire categories are perfectly acceptable & are actually commonplace on Wikimedia Commons (depending on the size of said category obviously). For example, a deletion request on a modern building in a country without Freedom of Panorama will obviously raise concerns on all files in the category of the building (example).

Per Wikimedia Commons standards, a “mass-deletion” in the context of URAA would have been in my opinion to fire a bot to delete the thousands of files in Category:Works copyrighted in the U.S., which was explicitly decided against. Or to mindlessly nuke entire category trees. Per a cursory look at Category:URAA-related deletion requests/deleted, I believe individual DRs are far more common. There have been instances where files were put under scrutiny in batches, like here or there, given there was a determinant common criteria that warranted it.

Digging more (wouldn’t have been easier to provide the links, really?), I suppose you refer to cases like this one or that one. Though I personally would have proceeded differently, I do not see any reason to believe that every listed file was not examined individually.

You continue by writing “The burden of proof has been inverted: instead of having to justify the deletion of a certain file, things go that volunteers have to devote their time trying to justify the validity of their efforts.”. I really suggest you do your homework, because it has always been the case − see Commons:Project scope/Evidence (for which, incidentally, commons:Commons:Burden of proof redirects to) which is Wikimedia Commons policy, and has been for years.

Overall, I am highly disappointed by the language in some parts of this open letter, which betrays either a candid ignorance of Wikimedia Commons workings, or a deliberate intent to twist the reality in order to make a point − or both. Given the background Galio gives on the origin of this letter, which apparently hardly involved any Wikimedia Commons editor, the former is not surprising. But at least I would not have expected from Wikipedians to prefer dramatic punchlines devoid of any solid content over facts.

--Jean-Fred (talk) 13:24, 26 February 2014 (UTC)

Note that I do not mean that everything is perfect on Wikimedia Commons − not even the URAA handling. We can discuss as a community how to move forward and amend our policies accordingly if needed. But your sending an open-letter to the community with this attitude of knowing better how to handle a project than its very own community with a great deal of rhetoric, while displaying an embarrassing level of ignorance of this project (both in its policies, customs & challenges faced) and bordering on name-calling & mud-throwing (yes, when it is implied that myself or some of my colleagues do not care about free knowledge, I feel insulted) certainly does not help in starting a healthy discussion. Please keep that in mind. Jean-Fred (talk) 13:44, 26 February 2014 (UTC)
Dear Jean-Fred, your message exhibits the kind of reasoning we are questioning. We do not discuss that all deletions —and there's no need to provide evidence when you provide the examples— have been duly conducted under current Commons policies. We do not pretend "knowing better how to handle a project than its very own community", but we do have a different picture that can get lost when only paying attention to Commons internal processes. Let me add that Wikipedians are not outsiders in this discussion. Many of them are Commons contributors and are affected by these deletions; the fact that they are not into legal discussions —which are mostly conducted in English, let's not forget— does not invalidate them as stakeholders. Our open letter is political in nature and is not ought to be examined as if it were a research paper, that's not its rationale —and, no matter how many {{Citation needed}} you'd like to decorate it with, I'm sure you won't deny that the results we are denouncing are true. Our starting point are not the means but the end result. It is because of that practical results, that we think are hurting our mission, that we decided to call the Commons community to reconsider alternative approaches to implementing URAA that prevent as much as possible massive deletion of contents. Massive as in tens of thousands or hundreds of thousands of educational resources being lost, not need to discuss what Commons understands as massive. The line about the burden of proof does not ignore that contributors have to provide copyright information about files they upload —but that doesn't mean we have complete and exhaustive information about those files' status under URAA so as to delete them without waiting for a DMCA takedown notice. As said before, works from outside the US with a potentially restored copyright in the US could be identified as such, making sure we acknowledge their disputed legal condition, without need to self-inflict our movement the worst possible outcome even when we don't know if anyone will ever make a claim about them. That is our point, and again I'm sorry if you feel offended —I'd prefer if you could avoid sending us to "do our homework", though. We do our homework, among other things, dealing with local private and public institutions to ensure that the quantity of free available educational resources gets progressively broadened. Best, Galio (talk) 15:16, 26 February 2014 (UTC)
I should not have used such harsh and patronizing language − I’d say that it matched the level of harshness and patronization I felt when reading this open-letter, but that should not be a reason for me to escalate the discussion. Apologies on that point. Jean-Fred (talk) 15:40, 26 February 2014 (UTC)
Yes, I did feel offended by your letter, because it depicts a Wikimedia Commons in a way that is simply not accurate. Seriously, reading it, one could believe that there are a couple of rogue sysops who mindlessly nuke thousands of files every day for breakfast, against project policy, under the closed eyes of a community who do not care much about free knowledge anyway, all while the WMF (both BoT & Legal) have been spelling "Do not delete anything!" in letters of fire all over Wikimedia Commons for years. Which is light years from the Wikimedia Commons I know and love, light-years from what has happened these last two years.
And the problem is that many folks will (and have) build their opinion of Wikimedia Commons based on this piece. And indeed, as as I read on wikimedia-l, this is sufficient to prove to some people the hopelessness of Wikimedia Commons which should be "deprecated" and to go back to local hosting − which makes me sad, and upset.
So yes, I do look at the piece with research paper standards, expecting a high level of precision − because I dreaded very well how many folks, who love to hate Wikimedia Commons, would not check and be happy to use it to jump to dire conclusion.
Cheers, Jean-Fred (talk) 21:03, 26 February 2014 (UTC)
I share the idea that going back to local hosting is not something to be desired, and in case such proposal happens at least for me it would only be a provisional measure to save as much content as possible. I repeat our apologies to anyone that could have felt offended —our intention was indeed to make a strong statement and to help shifting the discussion to what we are actually producing (i.e. losing) with the current policy, but surely not to offend valuable volunteers for the sake of it. We know that everyone's acts are conditioned by their context, and even if every individual Commons admin personal goal were to keep and increase as much as possible our contents the end result could be quite different depending on the rules of the game. What we say is Such rules are flawed if their outcome is self-inflicting the greatest possible loss of resources, no matter all the legal reasoning that could be put forward to sustain or defend the current policy. Our statement is a political cry of despair, if you accept that terms, in front of a legal framework (not URAA, but URAA's implementation in Commons) we find highly counterproductive. And please let me insist on what the statement says about a disconnection between Commons and other Wikimedia projects, something that from what I understand does also worry you. Truth is that happens. You can shoot the messenger, you can (legitimately) think that accusations are unfair or misinformed, but there exists a gap between the prevailing logic in Commons and the feelings of many other Wikimedia volunteers that was not invented nor generated by our open letter —and IMHO it would be unwise to disregard all of those voices as low-quality opinions, because there's the risk of Commons being viewed as some kind of legal technocracy that seems to serve its own internal logic before the broader Wikimedia mission. Many of those voices come from people that are, too, very valuable volunteers, people that are also Commons contributors and users even if they have focused their everyday efforts in other projects. I think there is legal and political space for a more prudent implementation of URAA aimed at halting preemptive deletions, but it's not up to me or to Wikimedia Argentina to decide about it. Thanks for considering our opinion and for taking your time to reply, even if we dissent. Best, Galio (talk) 21:57, 26 February 2014 (UTC)
I won't say my personal opinion about certain Commons admins and sysops because I have had that impression for years so it is not caused by this letter. I totally agree with Galio on the gap (broad, narrow...but a gap) between the Commons volunteers and their peers in the rest of the Wikimedia projects. Please don't say it is a false statement because dismissing it shows also a lack of regard for other people's opinion. --Maor X (talk) 09:41, 27 February 2014 (UTC)

Legal fetichism[edit]

Can you comment on this wording ? --PierreSelim (talk) 19:21, 27 February 2014 (UTC)

Sure. Let me please start by mentioning some definitions of fetishism, because I fear that some language issue may affect its understanding —perhaps you gave it a connotation we didn't. Dictionary of the Royal Spanish Academy: "Idolatría, veneración excesiva" ("Idolatry, excessive veneration"); Oxford English Dictionary: "An excessive and irrational devotion or commitment to a particular thing"; Collins Dictionary: "Any object, activity, etc, to which one is excessively or irrationally devoted". What we are talking about when we mention a certain legal fetishism is what we perceive as an excessive focus on legal discussions that at times seems to transform into a goal itself —and that IMHO can help explaining the existing gap between Commons' core community and other projects' volunteers that tend to avoid or are not able to take part of Commons' internal discussions. From our point of view it is in the best interest of the movement to explore every possible approach that prevents deleting files per URAA until there is complete copyright information and no legal alternative (i.e. DMCA takedown notice), and what we perceive is a system whose result is far away from that. Best, Galio (talk) 21:07, 27 February 2014 (UTC)