Wikipedia:Mediation Cabal/Cases/2007-06-20 Peter Nordin

Request Information
This request is about discussion on inclusion of a fair-use image in the article. The question is whether a fair use image qualifies for inclusion under the Fair_use_criteria if a freer alternative if one of acceptable quality is not available. Is this not true if the only objection is that the subject is a living person? Specifically at issue is interpretation of criterion #1.

Who are the involved parties?
User:Rogerfgay User:N User:Nadav1 User:Quadell User:Csernica User:Addhoc User:Iamunknown User:Abu badali User:Kviki (indefinitely blocked) User:Chowbok User:Howcheng User:BigDT

What is the involved article(s)?
Peter Nordin, more specifically the image Image:PN Chalmers 300.JPG

What's going on?
User:Nadav1 made it clear that he intended to have the fair-use image removed. What followed has been a very lengthy and sometimes heated debate about the use of the image on a Fair_use_review, criterion #1, that hasn't headed for resolution. Other editors argue that fair-use images of living persons are not allowed at all, ever, while Fair_use_criteria criterion #1 seems to clearly state conditions under which fair-use images may be used with no exception stated for living persons. Among arguments against inclusion of the fair-use image is that one can imagine that not allowing use of images under fair-use can force creation of new images that are free use (something that seems quite unlikely in this case); an ulterior motive not consistent with written policy.

The image in question seems to have been deleted entirely, so far as I can tell, (I can no longer find it anyway) along with the Fair Use Rationale tags, other responses, and discussions on the related talk page. The last tag (among many) placed on the image page was a holdon tag, with a comment on the talk page that the question would go to mediation. At that point, the image was apparently deleted by User:N I returned the image to the article once, with the holdon tag and comment that the question should go to mediation. User:N removed it again. Now I can't find the image at all. In addition: at least as I recall, possible deletion mentioned in tags said that the image might be subject to deletion by an administrator. As far as I can tell, User:N is not an administrator.

What would you like to change about that?
Since I believe that the image qualifies for inclusion under the Fair_use_criteria and should only be removed by replacing it with a freer alternative of acceptable quality if one becomes available, I would like to see the image back in the article and protected from deletion. Alt: If I am wrong in interpreting what seems very clear language in the Fair_use_criteria, and fair-use images of living people are not allowed at all, then I want to know that is real Wikipedia policy (and thus and end to this with no image in the article).

I would also like guidance on how to respond to harassment when it gets out of hand.

Mediator response
I'd like to first point out that the image was not deleted by User:N, but rather User:BigDT at 01:09 on June 20, 2007.

In response to your statement, "Since I believe that the image qualifies for inclusion under the Wikipedia:Fair_use_criteria and should only be removed by replacing it with a freer alternative of acceptable quality if one becomes available, ...": Therefore, it is not acceptable to use a fair use image until it is replaced with a freer alternative. Replacement would be the ideal solution, however, acceptable inclusion is not dependent on the existence of a freer alternative, but rather the possibility of creating a freer version. In the case of living persons, people "are almost always replaceable because anybody could just take a camera to them and take a picture." WP:FUC asks, "[a]s a quick test, ask yourself: 'Can this image be replaced by a different one, while still having the same effect?' If the answer is yes, then the image probably does not meet this criterion." Considering the subject is a living person, this image could be replaced with a different one. And WP:FUC is the "real Wikipedia policy" concerning such images. Lara Love T / C  18:22, 21 June 2007 (UTC)
 * WP:FUR reads "Wikipedia frowns on the use of fair use. We are an encyclopedia that wishes to give free access to our content for everyone, commercial or non-commercial. Fair use should only be used under Fair use criteria."
 * WP:FUC criteria 1 reads "Non-free content is used only where no free equivalent is available or could be created that would serve the same encyclopedic purpose."
 * Actually I added those words to the page shortly after this case was opened because Rogerfgay kept insisting that the policy didn't actually say what the other editors and I were trying to convince him of. I was trying to clarify the existing policy, not influence this case. -N 00:15, 22 June 2007 (UTC)
 * The pre-existing policy points specifically about pictures of living persons are item 3 in the Foundation licesing policy and item 8 in WP:FU. nadav (talk) 01:30, 22 June 2007 (UTC)
 * I've amended my response. Lara Love  T / C  03:44, 22 June 2007 (UTC)

As far as the request for "guidance on how to respond to harassment when it gets out of hand", the best advice I can give you is to always remain civil. WP:EAR and WP:RFC/U may also be helful to you in such cases. Lara Love T / C  03:54, 22 June 2007 (UTC)


 * I've decided that it's futile to try to change people's minds. I'd have to dedicate much more of my life to this pursuit, when I've only found time to add some content. At this point, the article will simply not have an image, even though the one posted met the fair use criteria. I'll leave proving that to another day - since it calls for enormous effort in changing people's minds rather than simple logical proof. Or - perhaps I'll never do it, and accept the fact (forever) that there will be less quality content than there could be. Rogerfgay 12:45, 25 June 2007 (UTC)
 * Just to give a hint, I honestly don't see much difference between free-use and fair-use. These are lables used in copyright law - something several of my opponents in the debate didn't seem to understand at all - and I'm not sure any did. In effect they seem to be pretty much the same thing. The problem isn't in fair-use per se, but in uncertain claims of fair-use that may result in a copyright challenge. The difference is in how the right of use is obtained. Free-use happens when the provider with clear rights to an image declares that the image is in the public domain - or provides a specific "free-use" license. Fair-use happens in the absense of that explicit free-use license or public domain declaration being given by the provider. But whenever there is no risk of of a copyright challenge by the provider, fair-use is literally just as good as free. In this case, there is no risk of a copyright challenge. One of errors in the opposition argument is in holding the Iwo Jima image up as an absolute standard that must be met by everyone claiming fair-use. In some cases, meeting that standard may be necessary, but not in all. It is entirely inappropriate to apply that standard when fair-use has been established. In this case, the essential element of guaranteeing that the image is actually available under fair-use, was achieved by explicit acceptance of fair-use by the image provider. Rogerfgay 12:58, 25 June 2007 (UTC)
 * The position that no fair-use images of living persons should be allowed on Wikipedia is one that I regard as extreme and misinformed. Rogerfgay 13:01, 25 June 2007 (UTC)


 * And something I find extremely irritating in any debate, is the treatment of words like "most" (especially when its speculative) and "could" (especially when it is speculative) as though they mean all and is. Rogerfgay 13:52, 25 June 2007 (UTC)
 * Perhaps m:Resolution:Licensing policy would be helpful in this case. Lara Love  T / C  15:04, 25 June 2007 (UTC)


 * Fair_use is listed as an EDP at m:Resolution:Licensing policy. All procedures were followed. Fair use was actually established by explicit acceptance of fair use by the image provider. Since this definitely established fair use (absense of risk of copyright challenge), I haven't seen any reason to apply all the other analyses that have been suggested - for example the Iwo Jima precedent. --Rogerfgay 08:53, 26 June 2007 (UTC)


 * And of course, as you also said today "Just for the record, I still think I'm right". You've been here all of a few weeks, do you really think you know Wikipedia's policies better than people who've been here years? Do you really understand our goal of an entirely free encyclopedia and how we allow fair use begrudgingly and thus put many restrictions on its use? Read Gratis versus Libre to understand why even though your picture was free and with permission from the author, we still don't want it. Please. -N 22:15, 25 June 2007 (UTC)
 * Your comment illustrates the futility of the effort. Being an active Wikipedian for a while does not make you an expert in copyright law. There may also be a difference between the policy and common practice, based largely on a general lack of understanding of copyright issues. Being at Wikipedia for some time, doesn't in itself demonstrate that you have a stronger understanding of either; although it's possible that you have greater knowledge of common practice as a result of your specific experience - maybe - if you've been involved in many copyright related disputes. Actually learning something beyond common practice would involve approaching the issue with an open mind. --Rogerfgay 08:40, 26 June 2007 (UTC)


 * While no-one has changed their mind, it would appear we are going to accept the status quo. Should we close this case now? Addhoc 22:29, 25 June 2007 (UTC)
 * Yes, I think it will be pointless to continue. nadav (talk) 06:59, 26 June 2007 (UTC)
 * Yes. Just close it. As I said above, I don't have enough time to work on this issue. The article will simply not have an image until / unless something suitable appears with a free license or common practice for use of fair use images of living persons changes. --Rogerfgay 08:43, 26 June 2007 (UTC)

Administrative notes
Obviously, I'm a party to this dispute, so my comments aren't in the capacity of mediator or co-ordinator. However, I would comment that deletion review could be a more appropriate venue, because MedCab, being entirely informal, doesn't have the authority to undelete files. Addhoc 19:05, 20 June 2007 (UTC)

I would like to know what sort of "harassment" he has received as result of the discussion.  howcheng  {chat} 20:45, 20 June 2007 (UTC)


 * It was clear from the discussion that he thinks people disagreeing with him is "harrassment". What I'd like to know is what would make him "know that is real Wikipedia policy", since every single person so far has already told him that's the case and he still doesn't accept it. What would it take to convince him at this point? &mdash; Chowbok  ☠  01:48, 21 June 2007 (UTC)


 * Actually - Finding comments by participants in the dispute under mediator and admin comments seems to indicate that there is a problem of some kind. Rogerfgay 12:41, 25 June 2007 (UTC)