Friday, March 02, 2007

Fair Use and Copyright Violations

One of the interesting issues that seems to have presented itself in one way or another among Wikimedia projects in general, and through Wikibooks in particular, has been a realization that perhaps far too much trust has been placed on what might qualify as legitimate and legal usage of images through the copyright doctrine of fair use.

For a complete look at the United States Code, Title 17 and specifcally section 107 that governs this philosohpy in the USA:

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

For a law, this is a rather few words to cover such a huge topic that has spilled so much virtual ink on so many mailing lists and discussion pages. I would highly recommend grabbing the above link for some commentaries that are also listed in the formal US Code which take these ideas to much more depth and give some historical background on the issue.

One thing that should be of particular note is that in spite of the fact that the Wikimedia Foundation (and the various Wikimedia sister projects are strongly implied to fall under this umbrella) is an "official" non-profit charity, there is a general attitude to permit commercial reproduction of Wikibooks. Or at least substantial effort shouldn't be made to try and prohibit commercial reproduction. This is something that perhaps I should elaborate upon in a future blog post.

Another very common misconception is that because much of what Wikibooks does is oriented toward textbook publication, that content included on Wikibooks falls under the educational fair-use exception. If you read very closely the law as it is written above, the educational exception is meant for individual instructors and specific lessons taught in an individual classroom setting. I have seen both textual content and images that use educational fair use as the justification, but it really doesn't apply.

There is an interesting Wikibooks policy of "no original research" that is at first glance seems a little bizzare if you don't know the background of this policy. Again this will be the topic of a future blog post, but how that applies to fair use is that the research exception simply won't apply either.

So the only real area that Wikibooks can justify fair use is through the provisions of criticism, comment, and scholarship. There is an additional Wikibooks policy/philosophy of trying to maintain a neutral point of view that significantly restricts critical commentary, but it could be argued that there is a narrow scope where this may still be possible. Most of what actually happens on Wikibooks is mainly scholarly synthesis of non-fiction ideas and topics into textbooks and other educationally oriented multi-media content. So this is where even in the USA fair use applies to Wikibooks content.

There are at least three major schools of thought on this issue, and I'll try to cover them here:

  • Ban Fair Use Etirely - The primary argument here is that Wikimedia projects are based upon the GFDL, and we should be using images that are as free if not more so than the text we are writing that goes along with the text. If it is a fair-use image, there are many countries in the world that simply don't permit fair use at all and republishing something like a Wikibook won't be possible in many countries, at least as displayed on the main website with its images and other content that might be claiming fair use. At the very least, in these places where fair use is illegal, the content would have to be heavily edited to keep the fair use in there. A side argument is that the whole of the content ought to be considered available under the GFDL, not just the text itself. Fair use and restrictive content such as images allowed for non-commercial use only would violate this fundimental principle.

  • Allow All Fair Use -The main attitude here is mainly, if it is legally permissible for us to have the photos, there is no reason why we should not have it on our projects. An interesting side argument with this is that the GFDL applies only to the text of Wikimedia projects (Wikipedia and Wikibooks in particular) Clearly images other than those under the GFDL are allowed on Wikimedia projects, in particular those under the Creative Commons license. The GFDL does have an aggrigation clause which attempts to deal with this situation on a legal basis. The full quote of that is here:
    A compilation of the Document or its derivatives with other separate and independent documents or works, in or on a volume of a storage or distribution medium, is called an "aggregate" if the copyright resulting from the compilation is not used to limit the legal rights of the compilation's users beyond what the individual works permit. When the Document is included in an aggregate, this License does not apply to the other works in the aggregate which are not themselves derivative works of the Document.

    This school of thought views since the image files are stored seperately on Wikimedia servers, that the aggregation clause applies and that the text is completely independent of any images, or even the main project HTML code. Of course, fair use content does need to have a context where the fair-use rationale applies, so this isn't entirely the best argument even for this school of thought. Still, it completely isolates the Wiki markup text from the images themselves as areas of separate consideration.

  • Keep Fair Use Limited -This is admittedly a compromise and pragmatic solution to deal with advocates of either of the above two schools of thought. And it should be pointed out that the degree of limited fair use is debated even among those who would seek to put any limits on fair use at all but still permit it. The primary arguments in favor of this viewpoint are that some topics can't be written at all unless some form of fair use is permitted. Textual fair use is one specific example where the idea isn't controversial yet is a clear demonstration of where fair use may be used. Some other areas that are generally considered acceptable and widely used in commercial publications with fair use rationale under limited set of context is with the use of national symbols (like flags and seals); corporate logos; and legal tender like bank notes, stamps, and coins. Some Wikimedia projects have even codified fair use policy to only include these sorts of images and nothing more. By making the number of exceptions very limited, it makes it easy to decide if an image really does fit as a fair use image or not, and keeps projects from having to watch the news for changes in copyright laws that will likely not change or restrict these sort of items. In addition, while fair use is generally an American law concept, many other countries around the world have similar laws that permit these much more restricted categories of images without having to pay royalties or be found to violate copyright.

I'll be honest that I support the much more restrictive fair use philosophy, but still want to have some images like flags of countries (often copyrighted!) in a Wikibook that I am writing.

Friday, October 27, 2006

A New Manifesto by Jimbo

A recent posting on the Wikibooks "textbook" mailing list by none other than the co-founder of Wikipedia and the current chair of the Wikimedia Foundation Board of Trustees, Jimmy Wales, lists a manifesto regarding Wikibooks and its future. (my description of the post, not his)

This is a sort of follow up to the earlier post he did on the Wikipedia list where he tried to get people to try and think really big about what sorts of things could be done with Wikimedia projects if money was no serious object in terms of what could be obtained. Supposedly some people with some very serious amounts of money are thinking of doing some stuff like buying copyrighted works and then giving them to the WMF to be released as copyleft type content in some way. Copylefted textbooks are specifically mentioned here.

In particular, the concept was brought forth to consider what sorts of things could be added to Wikibooks to encourage the development of a standards-based textbook. As it stands right now Wikibooks does not offer any substantially completed content that is even trying to meet the curriculum requirements of K-12 educational institutions, and replies when back and forth about that issue in subsequent postings.

One thing that stood out for me in a reply by Sanford Forte, the current director of the California Open Source Textbook Projects, was that they have moved their actual development efforts to Wikibooks, and using their website mainly as an advertising and organizational tool. It doesn't surprise me as there are several other groups that are doing the same sort of thing, especially the South African FHSST (Free High School Science Texts) like the FHSST Physics book that was moved to Wikibooks a couple of years ago. In this regard, Wikibooks has become the #1 place to do this collaborative effort even though other efforts certainly are being done as well.

My counter argument (also posted on textbook-l) is that I am not entirely sure that you can get your best bang for the buck by simply purchasing copyrighted material. I contend that you can create new content for far less money simply by trying to offer incentives of some sort or teaming with the right people to help produce the content.

One thing that needs to be made clear here is the philosohpy that Jimbo has now for Wikibooks that is emphasizing the textbook nature of the project. I have been leading the "Wikibooks is for more than textbooks" philosophical school which at times seems to be running counter to the efforts of Jimbo from time to time. There is common ground that we can work together and certainly I'm not opposed to development of textbooks on Wikibooks. The whole idea at the very, very beginning was to provide a wiki environment to make textbooks, but I would argue that the mission was expanded substantially during the first year in particular.

For anybody reading this... I am curious about other wild ideas that could be developed, presuming that a wise spending of a large amount of cash could be used to enhance Wikibooks in one way or another. Hiring full time copy editors? Sponsoring prizes for books on specific topics? Buying existing textbooks?

A number of outstanding ideas have already been presented in multple forums on this topic, but it certainly is food for thought.

Monday, October 23, 2006

A Beginning

This is going to be a rough beginning to offer opinions on the goings on with Wikibooks, the Wikimedia Foundation, and perhaps other things somewhat associated with the various goings-on with the free textbook movement, if you can call it a movement with just a handful of people.

I certainly offer my opinions on that is going with Wikibooks, but I'm posting here to offer a little bit of independence from Wikimedia servers, and perhaps to do some additional musing from time to time that clearly has a point of view that may seem a bit unorthodox.

At the moment, Wikibooks seems to have died down after going through a few months of massive changes in the nature of participants and administrative overhaul. Especially with the removal of the video game guides and Wikiversity. I'll certainly offer my opinions on both of those topics later on, but on the positive side Wikibooks seems to be a more mellow place now and considerably friendier to new users.

I've taken a Wikibreak as well, moving on to of all things, Wikipedia. That experience is interesting to say the least, especially when people are talking down to me like I am a totally clueless newbie. They also get an earful (or a strong rebuttal on talk pages) when that happens. I have some strong opinions on the strengths and weaknesses of Wikipedia, especially coming from somebody who is a sort of outsider to Wikipedia, but an "insider" for Wikimedia projects in general.

But my real love right now is writing books through a collaborative Wiki interface. I love the much more laid back attitude most participants have, as even the most extreme flamers on Wikipedia seem to calm down and deal with one another in a (generally) much more rational manner. That doesn't stop conflicts altogether, but those that do happen are more remarkable as a result.