User:Johnleemk/Fair use

Since the beginning of 2006 I have become interested in helping Wikipedia minimise usage (especially ill-usage) of fair use images. Helpful policy includes WP:FU and WP:FUC. This page is a compilation of random stuff I (and hopefully you) may find useful with regard to fair use on Wikipedia.

A basic (if long) rebuttal...
To 99% of all arguments defending fair use abuse. One night I stayed up till 2AM to write what I hope will prove to be a comprehensive explanation of why most of what people think is fair use really isn't. May this save me from future nights of carpal tunnel syndrome. Below, I have excerpted portions of it which I feel are worth reusing, with some minor changes.

Nobody has presented a coherent explanation of how the images meet the requirement of "criticism or commentary". Yes, you're excerpting content from Lost, but when the content has no apparent relation with the article content, can it really be fair use? If I can't tell what an image is trying to convey, or what it is conveying has to do with the article, have you really applied fair use correctly? You're still not understanding what we're tring to say: The article as it stood did not have more than a handful of images (if any) that conveyed meaningful information and/or could have had a free substitute. Nobody is saying the article can't use any fair use images. It's not an either/or thing. The point is that the fair use you're trying to defend isn't fair use at all.

It's a strawman and red herring to state that the article's gratuitous abuse of fair use is permissible simply because the only other alternative you've considered thus far is no images at all. Nobody's been saying we can't have fair use images. Nobody at all. That's the point of fair use in the first place; to have images where they are useful. What we've been saying is that not all (or even most) of the images used in the article are contributing to readers' understanding of the topic. As I said, if an image is too dark to tell what's in it, why use it? How does a screencap from an incident in an episode that is not mentioned enhance instead of retard the readers' understanding of what happened in the episode? You can't expect every reader (especially those who are skimming or are totally unfamiliar with the show) to make the connection between a sad-looking Asian couple and an episode summary that focuses on something Rousseau did and the departure of the raft. Also, a judge won't care that you made a good faith effort to comply with fair use. You're either right or wrong, and acting in good or bad faith won't change that. This is one case where Wikipedia and meatspace collide, and we need to be on the right side of the law here. Just because a group of POV pushers are adding blatant violations of our neutrality policy in a good faith effort to neutralise an article doesn't mean they shouldn't or can't be reverted, or should only be reverted after discussion. Assuming good faith means you assume that other people have the best interests of Wikipedia, its readers, its editors, and perhaps the world in general in their thoughts. It doesn't mean you lie down and say, "Okay, I'll let you violate policy and/or try to talk you out of violating policy because you're acting in good faith!" As JayJg pointed out in one arbcom case, acting in good faith is often immaterial; most people's actions are made in good faith, and most people do believe that their opponents are simply big bad trolls out to get them. (Not that I'm saying anyone here is a big bad troll...)

As for Ed giving a chance for people to argue that something is fair use, as others have said: WP:BOLD. He saw something that was a blatant abuse of fair use, and fixed it in an extreme but nevertheless correct manner. The immediate reaction (as many of you have said) was to treat him as a vandal, and make flimsy justifications such as that the images made the article look more "professional" or were needed for decor. Your current justifications remain the same, merely touched up with more legalistic and complicated words taken from fair use policy/law. The purpose of excerpting something is to comment on it, which the article did not do. Ed's edits aren't unrevertable, so the argument that he doesn't get to decide what is fair use is a red herring/strawman; of course he doesn't - editors collectively do, through policy and discussion. (Please note, however, that WP:NOT a democracy; Ed had every right to reject totally unfounded arguments with no basis in policy/law.) Currently discussion has shown that this article did not have a strong claim to fair use. I don't see how Ed did not engage in discussion; this appears to be a misleading view of the dispute. Ed's first edit to purge the fair use abuse from the page was made around 8:15PM 24 May (UTC). At the same time, he made a comment on the talk explaining his actions, which is already a lot better than what most edit warriors do. I don't see a particular need for him to have discussed anything on the talk when he was reverted, considering that the reverter did not try to discuss anything with him, and his comment still stood. When he was reverted later, he reverted and added a more detailed explanation of his actions on the talk. As I said, reverting was perfectly warranted, considering that the blatant fair use abuse on this article was effectively copyright violation and thus vandalism (as Ed stated). The 3RR specifically excludes vandalism. As such, Ed did no wrong. Could he have conducted himself better? Of course. But was he wrong in anyway? Hell no.

And no, fair use is legally sanctioned copyright infringement, because if not for fair use, what people would be doing when excerpting any portion of a work would be a copyvio. By legally sanctioning certain kinds of excerpts with a very narrow definition in mind, the courts (and since then, Congress as well) have thus legally permitted certain forms of copyright infringement by legalising it. The copyright owner can set all sorts of requirements for using an image, but these matter not one whit as long as the courts rule that there is a valid fair use claim. (Which is why, for example, iconic image agency images can be used, even though ordinarily we'd have to pay for them.) And as for the assume good faith part, a clear copyvio should never be permitted. Might things have been better had Ed gone down the path of asking you to remove the images yourself, or beef up the article sufficiently? Possibly. But must he have done that? No. His actions were entirely correct and within policy, especially when you consider that trying to keep track of several lengthy discussions where you explain fair use policy (instead of just doing away with blatant copyright infringements outright) is simply impractical for most human beings.

Ed did not treat you like POV pushers or even vandals; vandals don't need to have a revert explained to them. Ed very clearly explained policy to you guys, both on the talk and in his edit summaries. Trying to claim he brushed you off is very disingenuous, IMO. And protecting the page? You've got to be kidding me. I bet you the flames would have been fanned even more. In an alternate universe where this happened, I can almost imagine someone saying "He should just have removed the images and explained why on the talk, instead of protecting the page and preventing us from making valuable edits!"

Ed was not a bad editor. A good editor gets rid of copyright violations and explains why. Ed did just that. He did not bypass you; that claim is disingenous. He did not treat you like common vandals; he explained himself to you and engaged you in discussion. Policy was enforced like any other policy; I don't see what you're getting at.

And as for images not being crucial, yes, they aren't. This is especially true for articles which are barely articles. (A list is generally very short and just directs the reader to the real encyclopaedia articles, although our best ones have excellent summaries of the articles they link to.) The argument that there will be no more extant images of Lost within a few decades is ridiculous in the age of the internet. It's a good pre-internet argument (at best), but in this day and age, there will be more than enough Lost posters and merchandise clogging landfills, books about them filling libraries, hard drives with Lost screencaps...you get the picture...to last for at least a century, if not more. Wikipedia is not an archival mechanism. It's an encyclopaedia, and text is our meat and potatoes. All else is secondary. Museums and other companies can afford to purchase the rights to Lost merchandise and screening rights. A voluntarily-edited encyclopaedia written on a shoestring budget and intended for free (free as in speech, not free as in beer) redistribution can't afford that, so it needs to have an irontight fair use claim and keep fair use images to a minimum. In any case where a free generic replacement could serve a similar role to a fair use image, the free replacement should be used. (In cases where there's risk of confusion, of course, there needs to be a clarification - e.g. that the event is a re-enactment or a generic stock image designed to illustrate a concept in the article.)

Funny that you bring up Kelly v. Arriba Soft Corporation - as our article on it notes, it's too tightly worded to have much read into it ("It upheld the right of image search engines to display thumbnail copies of images within their search results so long as the website URL was linked from the thumbnail.") Also note that "The full picture was not stored in Arriba's system, but would nevertheless be displayed on the user's screen in a frame environment provided by Arriba." In this article's case, our thumbnails: 1. Did not link to the Lost website they were sourced to but an image description page that did that; 2. The image description page had a larger image stored in our system. (Note that the Ninth Circuit initially held that Arriba's displaying of the full image in a frame was not fair use, but later changed its mind. The matter does not appear to have been settled, as they then remanded the case to the District Court for a full trial; citing this ruling as precedent would be shaky IMO.) The law here remains ambiguous, and we do not want to be the ones to change this ambiguity. (Quoth Durin, "Violating most policies on Wikipedia does not constitute a financial threat to Wikipedia. In the case of copyright infringement, violation of policy most definitely does constitute a very large potential threat if for no other reason than the cost of Wikipedia representing itself against plaintiffs in court cases.")

It's not an extremely narrow interpretation of the law or policy that would lead a person to the conclusions we have come to. The fact is that excerpting content at will from a publication just because you want to prettify (or in your words, "illustrate") a list of real articles about the publication can't be fair use. An image that contributes nothing/little to an article is not fair use. It's as simple as that, and I've already shown you how most of the images contributed very little (if any) to a reader's understanding of the show.

"I think an acceptable interpretation of the parts I've emphasised is, we are using the images in the context of identifying the subject of the article, which is all Lost audiovisual works" - all well and good, except that you never identify the subject of the images. It's like saying "I wrote an article on George Bush, so now I can use as many images of him as I like because they all help identify him in different situations - I'll have one of him fishing, one of him writing, one of him sleeping, one of him talking, and perhaps throw in a few of him grimacing at Stephen Colbert's jokes. Yes, that'll do it, even if I never mention the specific context of these images!"

"From my interpretation of the policy, the policy is there to prevent images from being placed gratuitously-- as long as there is specific section or point being illustrated, the policy is met." Nobody's explained to me how the hell an image so dark that you can't see what's being depicted can somehow add to a two-sentence summary of the episode (and where only a quarter of these two sentences is directly related to the image, which only an avid Lost watcher would be able to recognise).

The fair use and NPOV comparison, as I have said, is different because you're not taking into account gratuitous violations of the policy involved. Having a gang of people violating it instead of one doesn't change anything. Am I to be expected to get consensus to revert POV warriors' additions to articles like Bumiputra just because the discussion on such edits is all on Talk:Malaysia instead? (Just a loose example; there's quite a bit of discussion on Talk:Bumiputra if I'm not mistaken.) Likewise, just because a small group of editors here think in good faith that something is fair use doesn't mean that they should be considered correct, especially when discussion in other places has found umpteen times that the usage of images in this manner is not fair use. (Just refer to the Ta bu shi da yu scandal, where he went as far as deleting Time covers. His actions were vindicated, btw, even though deleted images are non-retrievable.) Ed's actions here are not unreversible. He did not delete the images. He removed them, pending a proper copyedit of the article so that selected images could be used to judiciously illustrate the article as necessary and no more. As for the "knowingly" argument - by reverting Ed when he fully explained himself, you guys are doing this knowingly. Ed didn't call the people who originally placed the images there vandals. He called the people reverting him copyright vandals, while never treating you as vandals; real vandals don't deserve admins like us staying up till 2AM local time typing up a lengthy explanation of why this article is just plain abusing fair use.

The comparison to copyvios doesn't wash because fair use abuse is a copyright violation. Different people do different jobs; it's called specialisation of labour. This is why some people clean out the image tagged with nsd, some people write articles, some people tag them as stubs, some people delete articles, some people purge articles of fair use abuses, and some people spend two hours writing detailed explanations of why the previous fellows were right.