Wikipedia talk:Non-free content/PMWed, 17 Dec 2008 18:14:30 +00002008-12-17T18:14:30+00:000614vUTC 39

Battle of Iwo Jima
I am amused by User:Megapixie's edit here, as he has now removed the exact example used in the policy WP:NFC Images # 4 to illustrate when fair-use is allowed, with the edit summary ""Raising the flag" is NOT fair use in this context - per Policy. Replacing with another suitable image." This must be something of a record in the annals of policy creep. Johnbod (talk) 22:57, 2 December 2008 (UTC)


 * Wrong. The article that policy cites is Raising the Flag on Iwo Jima, an article specifically discussing the photograph.
 * Agency photos cannot be used as a general illustration of the subject of the photo, eg Battle of Iwo Jima; they can only be used specifically in the context of the discussion of the photo itself.
 * IMO failure to observe this distinction is probably the most serious systematic image problem we have on WP at the moment. Jheald (talk) 23:42, 2 December 2008 (UTC)
 * IMO WP:UCS says it's OK to use in that context...Modernist (talk) 23:58, 2 December 2008 (UTC)
 * Common sense can't supersede US copyright law. Calliopejen1 (talk) 16:04, 3 December 2008 (UTC)

Jheald, you are wrong. The guideline text is: "unless the image has achieved iconic status as a representation of the war or is historically important in the context of the war (e.g. Raising the Flag on Iwo Jima)." The image is historically important in the context of the war and can therefore be used in an article about the war, not just in an article about the image.  Ty  00:06, 3 December 2008 (UTC)
 * Correct - the policy example would make no sense at all if it was only referring to the article on the photo. Johnbod (talk) 00:10, 3 December 2008 (UTC)
 * I'm sorry, but we can't use a copyright photo just because we want to. Use of the photograph simply to illustrate the battle is not what is legally called a "transformative use".  Rather, it is exactly the use the photograph was taken for, and exactly the use for which people have to pay AP their licensing fees.
 * The use becomes transformative if the article, or the section of the article, is specifically a commentary on the photograph itself, and its cultural and historical significance.
 * If the guideline doesn't make that clear, then the guideline needs to be rewritten. Because that's the legal position. Jheald (talk) 01:00, 3 December 2008 (UTC)
 * That is your interpretation of the law, which is a notoriously unclear one, and an interpretation which is against long-standing wikipedia consensus, as shown in the guideline and, for example, on Non-free historic image. An article which sets the image in its full historic context affects a transformation of the image, which is not then seen in the same way as it would be in isolation.  Ty  01:21, 3 December 2008 (UTC)
 * See the discussion at Template talk:Non-free historic image about the copyright violation problems with this template. IMO we might be better off without this template because it seems to justify all sorts of CVs. Calliopejen1 (talk) 15:13, 3 December 2008 (UTC)
 * And it is not that the guideline "doesn't make that clear", but that the guideline clearly says something completely different, but is being ignored. Ishould mention I raised the matter at the Village Pump also. Johnbod (talk) 03:23, 3 December 2008 (UTC)

Proposal
I propose adding the following wording in italics to unacceptable image use #4, to clarify the point: An image whose subject happens to be a war, to illustrate an article on the war, unless the image has achieved iconic status as a representation of the war or is historically important in the context of the war and the image is being used in a section of the article specifically analysing the image's historical importance or iconic status (e.g. Raising the Flag on Iwo Jima). Jheald (talk) 11:06, 3 December 2008 (UTC)
 * I support this change. Per howcheng below, I now think that this wording is that great either. But in any event, some change is necessary because the current wording is unacceptable. Jheald's explanation of the relevant law is correct - and this is not a "notoriously unclear" aspect of copyright law. Transformative use is pretty much the key to understanding fair use. It is a copyright violation to swipe AP's image because it happens to be a great way to illustrate the Battle of Iwo Jima (as evidenced by its achieving iconic status). AP took this picture exactly so it could charge people for this use! It is fair use, on the other hand, to use the photo in an article about the photo, because it is transforming the photo, treating it as an artifact in its own right. In short, Non-free historic image is frequently misused to justify copyright violations. We should clarify the examples and the template text. Calliopejen1 (talk) 15:05, 3 December 2008 (UTC)
 * Note that this is not "policy creep" - the current example is plainly incorrect. If we are going to have an example, it should be an acceptable one. Calliopejen1 (talk) 15:07, 3 December 2008 (UTC)
 * If this isn't "policy creep" then it's "policy absurd" lacking common sense, and a misinterpretation of the context of use here...Modernist (talk) 16:00, 3 December 2008 (UTC)

A response to Johnbod's comment above: Is it a bit hazardous to be relying on our educational/non-profit status solely. From our article Fair use:
 * Oppose The proposed wording does not work. It retains the link to Raising the Flag on Iwo Jima, which is clearly not the article the example intends to refer to - that is an article on the photo itself, and the degree of iconic status is just not relevant to fair use there. This is the link that has confused some into misreading the example. Equally, if "specific analysis" of the image is required, there is no point at all in the "iconic status" wording, indeed no need to have the whole exception there. But to remove the whole exception clearly would be a change in policy - downgrading to nothing all educational/non-profit factors & relying wholly on transformation.  This approach runs against both US law and the Wikipedia Foundation declared approach, and should be resisted.  I would add that Battle of Iwo Jima has sufficient analysis of the specific image to justify fair-use even if this wording were to be implemented, both in the lead, just opposite where this image was removed, and a much longer section slightly lower down.  So even on this policy creep wording, it's removal was unjustified.   Johnbod (talk) 16:33, 3 December 2008 (UTC)
 * Oppose. As I tried to do in this edit, it's not that the guideline is incorrect -- it's that the example is. By using Raising the Flag, we create a conflict between #4 and #5, the latter requiring us to NOT use the photo because there's an entire article about it. Instead, the lead image in Six-Day War would be a much better example (although now that I look at the article more closely, it really needs more discussion to justify its use, but IIRC this one photo is emblematic of the war from Israel's perspective).  howcheng  {chat} 17:07, 3 December 2008 (UTC)
 * N.B. I just added more details about the photo to the article, which should now easily pass NFCC.  howcheng  {chat} 17:25, 3 December 2008 (UTC)
 * But do you believe some change is still required, then? BTW your changes have just been reverted. If the text is WP:UNDUE as claimed, does the image even meet NFCC in that article? Calliopejen1 (talk) 17:46, 3 December 2008 (UTC)
 * I unreverted and explained to Nudve why it was there, and he has agreed that the passage should be there.  howcheng  {chat} 18:47, 3 December 2008 (UTC) PS -- I guess I am not opposed to extra wording, just the example.
 * The western wall photo should at most be thumbnailed next to the section discussing it. It should not be being used display-sized as the main photo, nowhere near the discussion of it.  As regards Raising the Flag on Iwo Jima, there is no conflict between #4 and #5, because "Raising the Flag on Iwo Jima" is the article entirely about the photograph. Jheald (talk) 19:19, 3 December 2008 (UTC)
 * The conflict is when people use "Raising the Flag" in other articles beyond the article about the photo itself, which prohibited by #5, but #4 implies that they can do so.  howcheng  {chat} 19:51, 3 December 2008 (UTC)
 * "The subfactor mentioned in the legislation above, 'whether such use is of a commercial nature or is for nonprofit educational purposes,' has recently been deemphasized in some Circuits 'since many, if not most, secondary uses seek at least some measure of commercial gain from their use.'[6] More important is whether the use fulfills any of the 'preamble purposes' also mentioned in the legislation above, as these have been interpreted as paradigmatically 'transformative.'"

The analysis in the case cited is very persuasive and is worth a read. On a tangentially related note, there was a recent related holding in the patent context: "our precedent does not immunize any conduct that is in keeping with the alleged infringer's legitimate business, regardless of its commercial implications. For example, major research universities, such as Duke, often sanction and fund research projects with arguably no commercial application whatsoever. However these projects unmistakably further the institutions' legitimate business objectives, including educating and enlightening students and faculty participating in these projects. The projects also serve, for example, to increase the status of the institution and lure lucrative research grants, students and faculty.". See also Campbell v. Acuff-Rose Music:
 * "The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersede[s] the objects” of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.” Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, and the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use." (citations omitted.)

Clearly transformation is at the heart of fair use analysis. It should be at the heart of our NFCC analysis as well. Calliopejen1 (talk) 17:41, 3 December 2008 (UTC)
 * I am by no means proposing we rely "on our educational/non-profit status solely" - you are the one resting everything on transformation, which, I repeat, reflects neither the law nor Foundation policy. Are you saying "iconic status" is wholly irrelevant? If we are quoting cases, Kelly v. Arriba Soft Corporation would seem more relevant here. Johnbod (talk) 20:31, 3 December 2008 (UTC)
 * Transformation is only one of the four factors of free use. There are a number of cases where the use of the copyrighted material was not deemed to be transformative, but the use was still ruled to be fair anyway, such as Sony Corp. of America v. Universal City Studios, Inc.. However, those cases aren't always applicable to us. For our purposes, yes transformation is indeed important. The story of the JonBenet Ramsey photos is a good case study.  howcheng  {chat} 20:52, 3 December 2008 (UTC)
 * Non-free (as in speech) is non-free, no matter how much fair use in copyright law is strengthened or weakened. Even if US copyright law explicitly stated "all reproductions of copyrighted work for non-commercial purposes is completely legal", our NFC policy cannot be reflected to accommodate that change because reproductions of copyrighted work still carry non-free use issues, and thus require rationale to be used on en.wiki in light of the free content mission.  That's why it's important to recognize that the NFC policy is not derived from copyright law but from the free content approach. --M ASEM  18:42, 3 December 2008 (UTC)
 * Except our NFC policy also is intended to be well within the bounds of what is allowed by copyright law. These non-transformative uses of historic images, especially those by press agencies, are not well within these bounds. To that extent that our NFC policy aims to ensure that wikipedia's use of these photos is legally sound, it must track what the law says. Calliopejen1 (talk) 18:59, 3 December 2008 (UTC)
 * In response to this, I have amended Non-free historic image. ViperSnake151 12:55, 5 December 2008 (UTC)

No time limit
I read somewhere (but cannot find it any more - old talk pages don't seem to show up in Google, and the internal search is no good for this) that there is "no time limit" as such, and this means that "replaceable" applies not only to things for which someome has a replacement here and now, but for anything for which replacement is or will be possible. The images are Image:Ldn Ovrgrd Train.jpg and Image:Ldn Ovrgrd Train Internal.JPG. The usual exemption here for future things is when it's not certain that they will exist, however in this case we are not only past the point of having any doubt, but the subject now exists. This photo is several months old, and I am reliably informed that the first units of the real thing are doing the rounds in testing. As I understand it, "reasonably" does not extend to having to know where something is at any given time, otherwise we could say that photographs of anything not rooted in the ground (including people) are not replaceable. I'd like to hear a few other people's thoughts. 217.33.218.200 (talk) 10:24, 4 December 2008 (UTC)
 * I'll say this again pretty much. It wasn't replaceable at the time it was uploaded, but it could be now. We just need someone to get off their office chair and get us the goods. ViperSnake151 12:32, 4 December 2008 (UTC)
 * Thanks, but your response was one of the reasons I asked here instead. I had hoped for an answer from someone that actually understands Wikipedia policy.  This may be a grey area, but "it's fine until someone actually replaces it" is definitely not the correct answer.  217.33.218.200 (talk) 12:42, 4 December 2008 (UTC)
 * I agree that we should not use photos of things that will exist in the future, including architects' sketches of buildings (which seem to be included frequently in articles of buildings under construction) and these train mock-ups. We wait for other photos to be uploaded, never knowing when an image will become available, and these we know will become available. Calliopejen1 (talk) 15:41, 4 December 2008 (UTC)
 * I'm not so sure about that. I agree that once something becomes replaceable with a free image, the non-free image becomes immediately invalid, but until that can be done, a non-free is appropriate, though I would expect that in describing the "replaceable" aspect in its rationale to estimate how long that image cannot be replaced for (completion of building).  That is, the "replaceable" aspect of non-free applies to the past and the present (what we know to be true if replacement is possible), but we cannot crystal-ball into the future.  Example, a building that is being built gains appropriate sourcing to be an article, but mid-point in its construction, something happens to cancel it (collapse, lack of funds, etc.)  The planned building doesn't lose any notability, but it will be impossible to get a free image of the final product.  --M ASEM  16:21, 4 December 2008 (UTC)
 * But in that case, wouldn't we just be able to undelete the image if the project is canceled? Calliopejen1 (talk) 22:36, 4 December 2008 (UTC)
 * I would think stuff like buildings would need an illustration of some sort of final concept anyway, since most articles on them will go quite into detail about what they are going to be like externally -- thus allowing the fair use until they are done. ♫ Melodia Chaconne ♫ (talk) 18:06, 4 December 2008 (UTC)
 * But why can't we wait until the building is done, like we do for every other subject? It may be years before we get a picture of Tulsi Giri, for instance--and for that matter we are likely never to get a picture--but we don't allow a nonfree image there. Calliopejen1 (talk) 22:38, 4 December 2008 (UTC)
 * With living people at the present, it is always possible to get a free image, even if the likelihood of getting one is not readily apparent. You can't do that for a building that isn't completed.  As long as editors are aware that as soon as something that could not be taken as a free picture becomes as such and thus voiding any allowable use of non-free images, we are sticking to the policy correctly.  (and in the same fashion as soon as a living person dies, a non-free image of them is then allowable if there has been difficulty finding a free one while they were alive). --M ASEM  23:04, 4 December 2008 (UTC)
 * To avoid any confusion, people were taking photographs of this in the latter phases of construction over 6 months ago, and I'm reliably informed that the trains have been sighted in the wild. 217.33.218.200 (talk) 09:25, 5 December 2008 (UTC)


 * Personally, I'd prefer that "replaceable" be read as "replaceable through the effort of modern persons". So, my preference is that depictions of future events be allowed (provided it meets the other criteria) until such time as it is no longer "future".  I think it is silly to disallow non-free images when there is no possibility to create an alternative in the present-day.  Obviously an artist sketch should be removed once it is possible to create an alternative, but not before that in my opinion.  Dragons flight (talk) 09:41, 5 December 2008 (UTC)
 * I refer you to the comment immediately above. See also here - first page contains 4 photos of the subject in question.  217.33.218.200 (talk) 09:56, 5 December 2008 (UTC)
 * Thanks to those Flickr images, I would say that we are no longer talking about the future. It is time to delete the designer's sketches of that train (though it is still fine to have an external link to the source.) --Hroðulf (or Hrothulf) (Talk) 10:25, 5 December 2008 (UTC)

Is this a free-use license?
Please see http://www.saudi-us-relations.org/about/terms.html. Does this mean that photos found on that site are free use? -- Avi (talk) 01:11, 5 December 2008 (UTC)


 * No, it just means that you don't need to pay them to view the website. --Carnildo (talk) 05:14, 5 December 2008 (UTC)

Great, thanks for the clarification. -- Avi (talk) 17:19, 5 December 2008 (UTC)

Opinons requested - New CSD i9 propsoal
As this includes proposed removal of specific NFC wording I am letting editors know about the New CSD i9 proposal and request for comments. If you wish to read the discussions that led up to this proposal you can find them at Important I9 add needed, and admin noticeboard. Thank you. Soundvisions1 (talk) 13:20, 5 December 2008 (UTC)

How long can copyrighted quotations be?
The policy states that "Brief quotations of copyrighted text may be used... Extensive quotation of copyrighted text is prohibited." What is the exact difference between "brief" and "extensive"? I've removed quotes longer than 100 words citing this policy only to be reverted. This article, for example, includes a 127 word copyrighted quote. Is that considered "brief" or "extensive"? Kaldari (talk) 18:54, 5 December 2008 (UTC)
 * Given the lack of supporting text I would say that that usage is too much. Canis Lupus 20:40, 5 December 2008 (UTC)

For more tips, see:

Wikipedia talk:Copyright problems

and the one that follows it (Guidance for writing "in your own words"?)

--Hroðulf (or Hrothulf) (Talk) 21:42, 5 December 2008 (UTC)


 * "Brief" versus "Extensive" is very context-sensitive. The courts have ruled that quoting a single sentence of a 500-page novel was not fair use (a newspaper review of the book giving away the twist ending), and have also ruled that quoting the entire lyrics of a song was fair use (an extensive line-by-line analysis of the song). --Carnildo (talk) 21:56, 5 December 2008 (UTC)
 * For the "novel", I believe you're referring to Harper & Row v. Nation Enterprises, which was more than a sentence (300 to 400 words), but still a tiny tiny portion of the 500-page memoir. Calliopejen1 (talk) 23:11, 5 December 2008 (UTC)
 * OK, then what's your specific opinion on the usage in this instance: Why Men Rule. Personally, I think it's excessive. Canis Lupus thinks it's excessive as well. What are other people's opinions? Kaldari (talk) 23:20, 5 December 2008 (UTC)
 * I'd drop the quote entirely. --Carnildo (talk) 00:42, 6 December 2008 (UTC)

Require marking of fair use INSIDE articles?
Well, my interpretation of this particular line in the licensing policy suggests that we are still not in full compliance (but then again...we're not in compliance 100% at any point)...

As you know, the line I am about to bring up was used to rename all the non-free media templates to be prefixed with "Non-free" (which in my mind, actually makes sense from the ground up, even while not factoring this in, because the difference between "Non-free software screenshot" and "Free software screenshot" just "goes together". "Non-free content used under an EDP must be identified in a machine-readable format so that it can be easily identified by users of the site as well as re-users."

Personally, since it does not fully say "where" it has to be marked, I am assuming that there has to be machine-readable markings ANYWHERE dealing with a non-free image. The recommendation of the Comics Wikiproject "suggests" that a comment such as be placed next to every image (but then, it ALSO "requires" that a copyright notice of the publisher itself be used on the page too, which if anything...may be something to look into requiring everywhere, but still).

Anyway, per interpretations of the policy, should non-free images be marked INSIDE articles too? ViperSnake151 21:24, 5 December 2008 (UTC)
 * HTML comments and other notices within the articles should be avoided. as for template naming all non-free license templates should currently start with non-free. Canis Lupus 21:27, 5 December 2008 (UTC)

Clarification request
A Bot has marked the images of the article Starshine (comics) as being non-fair use and orphaned- despite being from comic book covers (which as I understand makes them usable on Wikipedia since their purpose is promotion.) Also they are clearly not orphaned if they are being used on an article. I believe this to be a Bot error. Please someone explain this to me, otherwise I'll proceed to remove them from the orphaned list. Thank you. -Wilfredo Martinez (talk) 15:58, 9 December 2008 (UTC)


 * Neither Image:Starshine I.png nor Image:Starshine II.png has ever been marked as orphaned, and I don't see any other images having been used in the article recently. Which images are you referring to? --Carnildo (talk) 21:45, 9 December 2008 (UTC)


 * Precisely those images. The notice is at the bottom of my personal User talk:Wilfredo Martinez page. Again, note this was done by a Bot, which is why I think it's an error (and had to come here to ask. I hate bots.) -Wilfredo Martinez (talk) 03:39, 10 December 2008 (UTC)


 * The bot's telling you about Image:Starshine I.gif and Image:Starshine II.gif (note that they're .gif files, not .png), which are indeed no longer used. --Carnildo (talk) 08:55, 10 December 2008 (UTC)


 * So the Images were changed from .gif to .png? And now the old ones are no longer used? That's OK, then... but why tell *me* about it? Couldn't the person who did the change have removed the originals? Again: this is why I hate bots. I'm seriously thinking of just ignoring them from now on. Give me a REAL person to talk with. -Wilfredo Martinez (talk) 01:32, 11 December 2008 (UTC)