Commons:Review of Precautionary principle

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It is my impression that the discussion below, initiated by Michael over two months ago, has now run its natural course. Certainly it attracted just two edits in the past two weeks, which suggests to me that all interested participants have already voiced their opinions and that it is now time to close the discussion.
A careful study of the opinions below show that there is overwhelming support to reject the proposal in its entirety (with a ratio of around 3:1). Even more significantly, a considerable number of users supporting the proposal failed to provide any actual arguments, while most of the opponents took the time and the effort to provide their arguments against the proposal.
According to the generally accepted guidelines for closing discussions — of which the most important ones are listed at the page explaining the role of bureaucrats — a closing bureaucrat might give more weight to well-argued opinions rather than unargued votes. With that in consideration, it is even clearer that at this moment, the Commons community does not wish to relax the scope of the precautionary principle to host files that are in the public domain in their country of origin but which are still copyrighted in the United States due to the restoration of copyright imposed by the Uruguay Round Agreements Act (URAA).
It is my understanding that the outcome of this discussion stands in direct contradiction to the recent discussion on restoring files affected by URAA.
Given that there are many problems with the way in which the URAA discussion was closed, and given the fact this discussion was originally initiated as a means of resolving the incompatibility between the precautionary principle and the outcome of the URAA discussion, and the fact that the precautionary principle is an official Commons policy, it is my understanding that at this time there is no community agreement to host files affected by the URAA.
With that said, I would like to extend my sincere thanks to each and every one of the people who took the time to participate in this discussion — your continued involvement in discussions that directly affect Commons policies is deeply appreciated.
(The text of the discussion, in unedited form, follows below.)
odder (talk) 17:26, 21 June 2014 (UTC)

Please comment or !vote below.

--MichaelMaggs (talk) 16:02, 9 April 2014 (UTC)


Proposal[edit]

Commons should aim to host more files that are public domain in their home country even if they might still be copyright-protected in the US, and we should review the wording of the Precautionary Principle to try to achieve that. We would ensure that we keep within the requirements of US law.

We currently use "significant doubt" as the basis for deletion; the allowable limit of US law could in theory be up to, but not including, "actual knowledge".

There will be a separate discussion about the best way of changing the wording of the Precautionary principle, but this page is about getting agreement on direction rather than detail.

Legal and other background[edit]

Discussion and poll[edit]

  • Symbol support vote.svg Support as proposer --MichaelMaggs (talk) 16:02, 9 April 2014 (UTC)
  • Symbol oppose vote.svg Oppose This proposal is too vague, if I supported it, I would have little idea of what I was supporting. For example would a consequence be that administrators were encouraged by the WMF to break the law and might be personally liable for restoring copyright violations to Commons? I believe we should have proper independent published legal advice before polls like this are thought to provide direction. -- (talk) 16:22, 9 April 2014 (UTC)
Thanks for pointing out I had not made it clear that we will keep within the requirements of US law. This is not a proposal that is intended to set the Commons community at odds with US law or the WMF. --MichaelMaggs (talk) 16:45, 9 April 2014 (UTC)
Thank you for changing your proposal. However this just means that we comply with the law, in which case this proposal is not needed. The current undeletion policies apply and are sufficient to address new information discovered about the copyright status of deleted media. I have to remain opposed.
I would like to highlight that my understanding is that this is your personal proposal, not one sponsored by the Bureaucrat leadership, nor one supported by the WMF. -- (talk) 16:51, 9 April 2014 (UTC)
This is indeed my proposal as stated above. If you read through the legal stuff in the links above you will see there is a huge need for some solution to the URAA issue that is of critical importance to many of our friends in a variety of Chapters. It has even been suggested that this is of such great importance that the Commons community should collectively agree to ignore a US statute, namely the URAA. This proposal is a modest attempt to improve our holdings without going as so far as to breach US law. In the long term, many editors would like to lobby the US government to apply the Rule of the Shorter Term, but change in that direction seems unlikely in the near future. By the way, you have now !voted twice; could you remove one one the voting templates please? --MichaelMaggs (talk) 17:03, 9 April 2014 (UTC)
Thanks for the context. Template removed so there is no possible confusion about how many !votes I have made.
I find it illuminating that you have mentioned how finding a way around the URAA, so that these images are hosted publicly by Wikimedia Commons, you see as critically important to our friends in Chapters. As Chairman of Wikimedia UK, and having held that position myself in the past, I know that you have a legal duty to represent the best interest of the UK charity, and by extension all chapters under the identical WMF chapters agreement, above the interest of this Wikimedia Commons project community. Other bureaucrats do not have this legal duty to consider. Do you feel your legal obligation and potential conflict of interest, should be declared as part of your proposal, to avoid any ambiguity or later challenge? -- (talk) 17:18, 9 April 2014 (UTC)
Am am sorry to see you trying to rubbish a proposal by attempting to undermine the proponent. No, there is absolutely no conflict whatsoever. So far as I am concerned, everyone in the Wikimedia movement and in the Chapters has pretty much the same Open Knowledge vision, and we are all trying to pull in the same direction. --MichaelMaggs (talk) 17:26, 9 April 2014 (UTC)
Michael, observing your order of legal duty is not a personal attack. You are an advocate for Chapters and in this proposal you are directly advocating a position adopted officially by several chapters. I recommend you make this clear on your proposal rather than pretending this cannot be an issue that some members of the Commons community might be surprised by later on if never declared, indeed one of your fellow Commons Bureaucrats has stated below that "It looks like a few chapters tried to strong arm commons". I am content to leave this ethical matter to your good conscience under our bureaucrat policy, which I know you take a great deal of care to comply with. -- (talk) 17:33, 9 April 2014 (UTC)
Um, I'm actually making a proposal here (that we try to improve our holdings while complying with US law) which is directly opposite to that which others have publicly advocated. I'm sorry I can't follow your point, but what others have or have not suggested may be a side issue anyway as it does not affect this proposal. --MichaelMaggs (talk) 17:56, 9 April 2014 (UTC)
I am sorry that you do not follow my point that you have a conflict of interest as an advocate that should be declared. Hopefully this thread and your replies will be followed by regular members of our Commons community, and perhaps the new or less regular contributors who may now be attracted by your helpful emails to various lists.[1] -- (talk) 18:24, 9 April 2014 (UTC)
  • Symbol oppose vote.svg Oppose If anything, we should do the opposite. Following the laws of the country our site operator is located in isn't debatable. Additionally following the laws of arbitrary other countries (such as the work's source country) would be debatable, but this RfC isn't about that. Also, why is this in the gallery namespace? darkweasel94 16:30, 9 April 2014 (UTC)
Please see my comment to Fae, above. Maybe my initial wording was not clear enough, sorry. I have clarified it now. --MichaelMaggs (talk) 16:45, 9 April 2014 (UTC)
The requirements of US law are simply that the WMF needs to delete files after a valid takedown notice — that is clear. If we follow only these requirements, we'll end up as something else than a repository of free media. I don't really even understand what the files that might be in copyright are supposed to be — COM:HIRTLE IMHO gives some pretty good guidance, or at least not worse guidance than for the copyright laws of any other country. darkweasel94 19:03, 9 April 2014 (UTC)
'Might' is something between "significant doubt" and "actual knowledge", at a point to be agreed. --MichaelMaggs (talk) 19:20, 9 April 2014 (UTC)
  • Symbol strong support vote.svg Strong support as the initial proponent. --Alan (talk) 17:10, 9 April 2014 (UTC)
  • Symbol oppose vote.svg Oppose While this looks like a good faith effort to restore some consistency after the confusing URAA !vote, it essentially covers an area of commons operations that should be inalienable. The URAA !vote should have never happened. It created a huge mess for us. It looks like a few chapters tried to strongarm commons to ignore the law of the country in which our servers are hosted and from which we get a significant amount of contributions and re-users. Unfortunately the URAA copyright restorations are just seen as a mere "inconvenience" that we should just ignore. The reality is that they are law. And they are not an invention of "teh stupid US", they are a consequence of the Berne Convention (and a consequence that the US has tried to resist for quite some time). I'm going to be very frank here: No amount of bitching about how inconvenient certain laws are and how "unlikely" it is that someone would actually sue can convince me to actually break said laws. Now, I do agree that the determination of the copyright status is made a lot harder by the URAA. And said difficulty should make us all very careful about deleting stuff, and maybe a clarification about the cope of the PP is the original intention of this RfC, but it would have to be done with a bit more subtlety than throwing copyright under the bus entirely. --Dschwen (talk) 16:58, 9 April 2014 (UTC)
Edit conflict. Michael has clarified that his intention is not to "throw copyright under the bus entirely" :-) --Dschwen (talk) 17:00, 9 April 2014 (UTC)
Pictogram voting comment.svg Comment @Dschwen: Although I largely agree with you, I would like to point out that the strange situation created by the URAA in the US is not a necessary consequence of the Berne Convention. The Berne Convention certainly doesn't oblige the US to copyright works that are out of copyright in their country of origin. If the US applied the Rule of the shorter term, as many countries do, there would be no problem whatsoever. The current mess is created by the US trying to adapt its copyright to the Berne Convention whilst still retaining some of the unique US copyright rules. Most countries nowadays have basically a simple 70-year (in some cases 50, 80, or 100 years) term of protection after the author's death and also apply the rule of the shorter term. The unique U.S. situation has, of course, advantages for pre-1923 works (as they're all PD in the US, whilst e.g. a 1920 work created by someone who died in 1970 is still protected until 2040 in the EU). Gestumblindi (talk) 19:08, 9 April 2014 (UTC)
The current mess is caused by two things, the US government trying not to throw every publisher of PD material in the US under the bus by massively changing the rules (as per Israel and Australia, who went from life+50 to life+70 by freezing their public domain for 20 years, instead of removing stuff from the public domain), and US desire to avoid the rule of the shorter term (which disadvantages foreign authors and brings foreign law into US courts.)--Prosfilaes (talk) 20:57, 9 April 2014 (UTC)
I prefer to blame the current mess on Mickey Mouse. That created the excessively longer term in the US. John Vandenberg (chat) 04:02, 10 April 2014 (UTC)
  • Symbol oppose vote.svg Oppose Commons should host only files that are free in both the United States and their origin country, if different. Full stop. The closure of Commons:Massive restoration of deleted images by the URAA was not competent; merit of arguments, not volume, should dictate outcomes. We cannot choose to ignore the aspects of law with which we disagree. The linked and related Foundation statements generally encourage advocacy for change and assert a lack of concern related to the Foundation's legal liability. These notions, while perhaps valid and true, respectively, do not address issues of ethics and mission. It is failure -- both of our mission and of our ethics -- to host images reasonably expected to be under copyright for reasons related to the URAA. To label unfree works as free is a misrepresentation to our users. Believing law can and/or should be ignored because so doing is not likely to lead to findings of liability is reprehensible. No revision of PRP is needed. Эlcobbola talk 17:08, 9 April 2014 (UTC)
Nobody is suggesting labelling unfree works as free. But do you accept there is a huge swathe of content where our knowledge falls somewhere between "significant doubt" and "actual knowledge"? This proposal aims to capture some of that ground. There is a nuanced position we can take between Definitely Yes and Definitely No --MichaelMaggs (talk) 17:20, 9 April 2014 (UTC)
To suggest that Commons should aim to host files that "might still be copyright-protected in the US" is precisely a suggestion to label unfree works are free. Works are presumed unfree until we know with significant certainty that they are free. There is no nuance to what is a binary consideration: files either meet this threshold as established by PRP or they are to be deleted. Эlcobbola talk 17:50, 9 April 2014 (UTC)
Actually copyright lawyers deal in non-binary concepts all the time. In fact, to a first approximation that is all they deal in :) Copyright law concepts are inherently uncertain in fact and in often in law as well and anyone in this field knows that often the best one can offer by way of legal opinion is to say "probably OK' or "probably not OK'. That's not due to lack of legal expertise necessarily, as even the top lawyers find themselves saying such things almost all the time. The fact is that uncertainty and gradation of opinion is built in, and things only become fully binary once a court has finally opined one way or the other. --MichaelMaggs (talk) 18:10, 9 April 2014 (UTC)
I am sure that is all very interesting, but it is non-responsive to my comment. Whether there is significant certainty is indeed a binary consideration. The factors and considerations that establish that certainty are of course non-binary, but that is not what is being discussed here. Эlcobbola talk 18:25, 9 April 2014 (UTC)
Yes, you are now referring to the current binary decision point of the PP, which uses a test of "significant doubt". I am suggesting we move that binary decision point by re-phrasing the policy. --MichaelMaggs (talk) 18:40, 9 April 2014 (UTC)
Symbol oppose vote oversat.svg Strong oppose We are bending the (c) rules already a lot by keeping files where the source or license isn't correct. Admins look the other way daily, for the sake of other projects and heavy workload. Further, there's a lot of AGF regarding the original source and/or author of a file. We would never get away with it if we weren't Commons (or Wikipedia for that matter). We can't relax the rules here as we are NOT (c)-lawyers. More flexible rules won't help but make the (admin)work here much more difficult. In the end the proposal will result in a flood of UDRs and hard working users will be driven away from the project by the UDR overload. --Hedwig in Washington (mail?) 17:16, 9 April 2014 (UTC)
  • Pictogram voting comment.svg Comment We have recently decided to keep and even undelete files that are copyrighted in USA because of URAA. This is clearly against the present wording of precautionary principle and other long held Commons policies. If there is a limit point between abiding the law and copyright paranoia, this limit point has been moved in practice. We should move it in our policies accordingly, or move it back in practice to where it used to be.--Pere prlpz (talk) 17:32, 9 April 2014 (UTC)
Yes, indeed. Have a look at Commons:Implementing the closure of Commons:Massive restoration of deleted images by the URAA where I discuss that 'decision' in some detail. It is actually hugely problematic - and is to a large extent the trigger for suggesting this particular approach. As a result of that, we do need to change our policy (or scrap the decision). --MichaelMaggs (talk) 18:01, 9 April 2014 (UTC)
  • Symbol strong support vote.svg Strong support Hanay (talk) 17:54, 9 April 2014 (UTC)
Pictogram voting comment.svg Comment Keeping URAA files and PCP are two separate issues. URAA is NOT the main issue here. The point is: Are we willing to keep material on US-based servers that could be considered a copyright infringement? If so, IMHO that is, we can close Commons and move all our efforts to Facebook and Flickr. But that's only my personal opinion. --Hedwig in Washington (mail?) 18:00, 9 April 2014 (UTC)
We accept "could" already, of course, it's just that we test using the wording "significant doubt", which is already a long way from "definitely certain". We also interpret "significant doubt" extremely strictly. There is nothing sacrosanct in that actual wording (I introduced it into policy myself if I recall rightly, years ago), and we could agree to change it or to change the way admins apply it without the Wikimedia movement or Commons crashing around our ears. --MichaelMaggs (talk) 18:22, 9 April 2014 (UTC)
  • Symbol oppose vote.svg Oppose This is absolutely against our Terms of Use; not to mention firmly against our ethos. @MichaelMaggs:, seriously, there are backlogs that you could be helping with, instead of wasting THIS community's time with this shit. russavia (talk) 18:15, 9 April 2014 (UTC)
Russavia, please! I am sceptical too about this proposal; but there's no need or justification to attack the proposer. --Túrelio (talk) 18:26, 9 April 2014 (UTC)
Túrelio, I'm not attacking Michael, I am, however, making it clear my thoughts that his time would be better off spent helping to clear backlogs, rather than actively trying to sell out this community. This community and its ideals are not for sale, and I find it oddly amusing that Michael is so vocal on tightening policies and the like, yet here he is advocating for the exact opposite. Túrelio, you know that it is not lost of me that Michael is going to Berlin, and that I see this as an attempt on his part to appease the chapters. So my comments stand, as does the sentiment. russavia (talk) 10:58, 10 April 2014 (UTC)
Russavia, you are joking I take it? You have personally been agitating for action on this very issue for several days on my user page and on those of each and every crat, and it's a pity if that's all you can find to say. I'm genuinely mystified why you should think this is against the terms of use. Either you have missed the intent entirely or there is something I have not explained clearly enough. Could you elucidate? --MichaelMaggs (talk) 18:33, 9 April 2014 (UTC)
  • GA candidate.svg Weak support. I would split this in several cases. On one hand, we do have files that are clearly PD in the home country and clearly fall under URAA in the US (e.g. those created after 1923). I would be very glad if we could find a legally acceptable solution of this problem, but it looks like the only solution would be moving the servers with such images outside the US. On the other hand, we have files that are PD in the home country but it is unclear whether they are in the US (e.g. works created before 1923 for which we do not know if they were published before 1923, or where we know that the work was published in several countries but we are not sure if the US were one of them etc.). I believe that in such cases we should allow images where we are sure they are PD in their home country, but we do not have clear information whether they are in the US. Unfortunately, this proposal is somewhat vague, thus I would support it, but in a clearer wording — NickK (talk) 18:24, 9 April 2014 (UTC)
  • Pictogram voting question.svg Question We already accept FoP exceptions, but this does not imply the images themselves are in the public domain. That said, I am not clear on what additional class of FoP images we would keep if this proposal were accepted. Saffron Blaze (talk) 18:34, 9 April 2014 (UTC)
If I understand correctly, DMCA takedowns have already been applied in several cases where FoP applies locally but where it has been shown to the satisfaction of the WMF lawyers that US copyright would apply 'at a distance' (ie if litigated in a US courtroom). One example is at Commons:Office actions/DMCA notices#Notification of DMCA takedown demand - Claes Oldenburg. The biggest class of photos that this could impact upon would be copyrighted public sculptures, which are OK to photograph in many countries under FoP, but not in the US. --MichaelMaggs (talk) 19:08, 9 April 2014 (UTC)
FoP in the US only extends to buildings yet Commons routinely accepts many other types of works including sculptures under FoP exceptions. Saffron Blaze (talk) 21:42, 9 April 2014 (UTC)
That's historically correct, but most images were uploaded before those DMCA takedowns. The takedowns tell us the the WMF lawyers do not now think that the images would withstand legal challenge in the US courts. Under our current policy, there is presumably "significant doubt" about all non-US copyrighted public sculpture images, which means that unless we ignore policy we will probably be forced to delete all such images should anyone bring them up for deletion (which must be just a matter of time). By moving the policy test from "significant doubt" in a direction towards "actual knowledge" we should be able to keep at least some of those without breaching either our policy or US law. --MichaelMaggs (talk) 21:58, 9 April 2014 (UTC)
  • Symbol support vote.svg Support the principle of finding a way to provide access to material that may be copyright in some countries but not in others, but I don't see that this can be done with servers in US only. I see a multiple fork with independent hosts spread out over the world as the only fully legal option, but I am open to reasonable argument.· · · Peter (Southwood) (talk): 18:44, 9 April 2014 (UTC)
  • (Edit conflict) Symbol strong support vote.svg Strong support there is a world of difference between "actual knowledge" that something is in copyright as required by US law and "possibility that it might not be free" which is the standard currently being applied. This gulf is actively harming Commons. Thryduulf (talk) 18:49, 9 April 2014 (UTC)
    • It is not our sole priority to boost our number of hosted files. We need to guarantee our users that we are doing our best to avoid hosting images that are unfree. Lowering our standards is doing our users a disservice. --Dschwen (talk) 23:01, 9 April 2014 (UTC)
      • The point of commons is to be a reliable host of freely licensed media for WMF projects and the wider world. While files are being deleted based on vague suppositions that they might somehow be unfree somewhere, without anything approaching actual knowledge they are unfree, then Commons cannot be relied upon. When a media repository is unreliable its usefulness is comparable to that of a chocolate teapot. Thryduulf (talk) 23:13, 9 April 2014 (UTC)
  • Symbol support vote.svg Support This seems like a very sensible proposal that should be adopted. Thanks. Mike Peel (talk) 18:52, 9 April 2014 (UTC)
  • Pictogram voting comment.svg Comment Why does Commons always turn every discussion into an immediate poll? And good luck trying to get support for any "agreement on direction" because the only direction that turns up in these discussions is the "Slippery Slope". Regardless of the merits of the URAA debate, which I don't understand, if the resolution is in conflict with the precautionary principle (as currently expressed or interpreted) then perhaps one doesn't need to fix the latter. After all, if Mathematics is unable to create a complete set of consistent rules, then why should the fallible laws on Commons do any better? Tension amongst policies is not necessarily a problem unless one views such policies as machines for giving an absolute yes or no answer to any problem. Would it be better to view the Precautionary Principle as something upon which to influence other guidelines but not necessarily, in itself, the last word on any decision? Completely separate from the URAA debate, I do think the PP is misused by some who like to play amateur lawyer and invent copyright rules that have no basis in law practice and never occur in real life yet can be imagined into life for the purpose of scoring points against content creators in some big game. But that is more of a user problem than a policy problem. -- Colin (talk) 19:01, 9 April 2014 (UTC)
Hi Colin, the reason for inviting a poll is that tens of thousands of words have already been expended on attempted detailed solutions to the URAA issue already, and any detailed further proposal without general community backing would inevitably suffer the fate of those that have gone before. This may yet go the same way, but I'm not aware that anyone has anything better on the table just now, other than closing Commons :) --MichaelMaggs (talk) 19:16, 9 April 2014 (UTC)
@Colin: Interesting. I think the better analogy in real life is the Uncertainty principle. From it derives all our free will, without it resigned to a dull mechanistic and fatally determined universe in which Commons polls indeed pretty pointless. But what you say about amateur lawyers is bang on the constant for sure. They get too much attention and it's time we levelled the field for content providers. Coat of Many Colours (talk) 22:50, 9 April 2014 (UTC)
MichaelMaggs, clearly the community thoughts on this topic are not mature enough for a poll -- because such things should only be used to gauge current consensus, not as a means for discussion. The two words "discussion and poll" shouldn't appear together. Forcing a discussion to use Support/Oppose just polarises the debate as those who support will be disinclined to mention negative aspects and keen to over-emphasise positive aspects and vice versa. It encourages a quick punchy rationale (or none at all) rather than measured thoughtful comment. It actively discourages consensus-forming. So I do suggest stopping this poll and trying a different approach.
A debate on what is knowable wrt copyright law and how this influences our deletion discussions is worth having. I've seen this already on our x-ray debate which essentially involved those keen to delete images speculating on copyright law for the purpose of winning a game. That debate resulted in the deletion of useful encyclopaedic photographs which had permission (but lacked the Commons paperwork). Mercifully those involved lost their nerve to carry through the consequences of their foolishness, which would have resulted in a decimation of our medical archive, possibly dwarfing this URAA issue. It also stifled new contributions in this area. And for what? Just so some people can play at being lawyer and win online arguments. There are uncertainties in life and in copyright, but some here view things only in black and white. They can only follow written rules than than do what is right or clever. This is why I think resolving these problems require a change in user behaviour and attitude rather than necessarily trying to formulate rules so that robots can understand them. -- Colin (talk) 07:31, 10 April 2014 (UTC)
Colin, I entirely agree with you in an ideal world. In practice, as both you and I know pretty well, polls can be derailed by editors with strong opinions who may not have read up on the background, while detailed and knowledgeable copyright discussions generally get almost entirely no user involvement and any decision struggles for community legitimacy. My small steps proposal Commons talk:Works by non-U.S. governments declared to be in the public domain globally is an example of the latter that is still in draft due to lack of much interest. The environment we are working in unfortunately is not congenial to the better middle way. --MichaelMaggs (talk) 08:02, 10 April 2014 (UTC)
We still have the issue with the servers being in the US. Sure, there's much content that still needs to be added to Commons. But we can't ignore the fact that there are laws standing in the way. --Hedwig in Washington (mail?) 23:01, 9 April 2014 (UTC)
I see the user problem here as being people who would think that users who are concerned that Wikimedia Commons should abide carefully by the law are playing some big game against "the content creators".--Prosfilaes (talk) 08:27, 10 April 2014 (UTC)
Of all the people that have written here, I believe I have created the most content for Commons by a good margin.[2][3] The fact that I oppose this proposal rather puts the lie to this polarizing myth. If anything there is a bias to the opposite as many of the most prolific content creators are needfully cautious about copyright interpretation, probably because we have a good pragmatic grounding in the issues. -- (talk) 09:07, 10 April 2014 (UTC)
I'm not quite sure how the "fact that [you] oppose this proposal" says anything about whether early polling or mixing polling with discussion is helpful to consensus-forming. But thanks for reminding us all about the size of your head. In comparison Category:Photos by User:Fæ is relatively unspectacular in size. Is there some other category for your creative output? -- Colin (talk) 10:53, 10 April 2014 (UTC)
I see you've added some links. uploading != creation. Kind of an important distinction, in a copyright discussion. -- Colin (talk) 11:46, 10 April 2014 (UTC)
I don't know why I'm getting involved with this unbecoming discourse, but I consider uploading other people's work to be vastly superior to content creation when it comes to building copyright knowledge. If I take a photo, all I need to do is release it under a suitable licence and that's it, I've set an irrevocable and permanent copyright status for the next 70 years, after which it enters the public domain and that's that. When you upload other people's work, you have to understand so much more about copyright, from local copyright legislation to US copyright legislation and how it can have revived copyright protection and extended the term, to all sorts of other URAA and Berne Convention loopholes, clauses and unintended consequences. It's like claiming because you own a rowing boat you're a better at sailing than the captain of a minesweeper, it's two quite different things. Nick (talk) 12:07, 10 April 2014 (UTC)
"If I take a photo, all I need to do is release it under a suitable licence and that's it." - Hmm; I'm thrilled by your knowledge on copyright. I wondered on your reasoning that following US law will "protect everybody who chooses to use Commons to the best of our ability and we're not doing that it we start to be less cautious about deleting potential infringing material." Remember Commons is not only for US people. Jee 12:42, 10 April 2014 (UTC)
Jkadavoor "We have a moral right to protect everybody who chooses to use Commons to the best of our ability and we're not doing that it we start to be less cautious about deleting potential infringing material." - could you point out where I refer specifically to following ONLY United States law to achieve that aim ? You appear to be confused, but to clarify, I agree absolutely with you when you say Commons is not only for US people. We have material which is in the public domain in the United States but which is protected under copyright in other countries, re-users not knowing about this could easily get themselves into all sorts of legal problems and it is my belief we aren't clear enough about the copyright status for these sorts of images. "Hmm; I'm thrilled by your knowledge on copyright.". I was being intentionally simplistic when it comes to copyright knowledge stemming from content creation v uploading others works, but I don't think it warranted such a response. A wee apology wouldn't go amiss. Nick (talk) 14:21, 10 April 2014 (UTC)
Nick: See, the current practice in Commons is to accept content if they are free in source country and in US. This practice no way helps the reusers; it is only intended to help WMF from legal obligations. Allowing non-free contents in US make no difference in a reuser point of view unless those reusers are from US. So this proposal has no relation with that matter.
I agree; my comment is a bit rude on the second point. I'm very nervous to see any attack against the photographers community here, or any attempt to underestimate their contributions. I often see it here, including a comment by an admin yesterday to threat a highly valuable contributor to block him. The only think he did was respond angrily when many of his works are deleted. His files were deleted not because he failed to provide a non revocable license; he himself is not eligible to make such a license per the applicable law. That is why I questioned your knowledge on copyrights. Even if a photographer is eligible to grant a license, there are many other things he need to care, especially third party contents and rights. Jee 15:28, 10 April 2014 (UTC)
Nick, lots of people take photos that get deleted for copyright reasons, so I think it is a wee bit more complicated than that. And giving away one's own work for eternity is a little bit more serious an undertaking than you claim. I didn't make a value judgement over the two roles but since you mention it, one role is vital and irreplaceable and the other useful, largely automated and quite replaceable. Content creation is unique whether the creator is on Commons, upload their free work elsewhere, work for the US Gov or have been generous enough to be dead for a long time. I get most of my books in the post, but I don't remember my postman ever boasting of having written more books than anyone else by some margin. What a silly boast. -- Colin (talk) 13:31, 10 April 2014 (UTC)
The act of taking a photograph and releasing it under a free licence isn't any more complicated than I claimed, it's the really simple bit. The difficulty (and the point I was trying to make, badly it seems) is determining if the photographer can actually release it under a free licence, whether it contravenes some often difficult to understand local legislation on Freedom of Panorama, if it is some sort of derivative work and so on. I've had the great fortune to have my work (both artwork and photography) published but I know I've learned more about copyright legislation from uploading others works to Commons than I have creating and distributing my own work. I think your claim that uploading != creation does a great disservice to so many of our contributors here on Commons who might not even have a camera, but have hunted down, found and uploaded incredibly valuable media, and who absolutely should never be made to feel like second class citizens because they haven't got category after category of their own photographs uploaded on Commons. They know at least as much as content creators and I'm convinced many of them know much more when it comes to copyright legislation. Nick (talk) 14:21, 10 April 2014 (UTC)
Well using your logic the act of selecting an image in the Upload Wizard and pressing a few buttons "isn't any more complicated than I claimed". The work of sourcing free images, checking their copyright status or licence, and uploading them is valuable and to be praised. And some of our active uploaders may well know more about copyright than creators. Sure. But I don't know why you are so determined to equate the role of creation and uploading. Is the person who uploads a NASA photograph in any way comparable to the team of engineers who sent the Hubble telescope up to created it? Is the person who uploads a Google Art image in any way comparable to the painter who created their masterpiece? Is the person who treks through the forest to capture a picture of a rare bird in any way comparable to the person who spots a CC licence on Flickr and copies the image here. Give me a break. Be content with the role you play. Take pride in it if you like. But don't pretend you are something you aren't. That's all I'm saying. -- Colin (talk) 16:02, 10 April 2014 (UTC)
  • Symbol support vote.svg Support It's time that we match the reality of Commons as much as we can with the core principles of Commons and the movement as a whole. Our goal is to make more media available, not less, and we should work diligently toward that goal, as long as it doesn't harm others and/or break the law. This proposal is one correct step in that direction. —Ynhockey (talk) 19:07, 9 April 2014 (UTC)
This proposal does break the law. What wouldn't break the law is to stop worrying about non-US law; if your goal is make more media available, that should be your first solution.--Prosfilaes (talk) 20:59, 9 April 2014 (UTC)
      • I heard a lot in the previous discussion about how it's breaking the law, even though the proposal is clearly against that, but the question is, are any of the opponents lawyers versed in copyright law? How do you know that we're breaking the law? So far the WMF's lawyers, who are proficient in copyright law, have made their legal opinion clear, as have multiple lawyers that Wikimedia Israel has contacts with. Let's not be holier than the pope. I don't think that it's helpful that community members who are not professionals in the field give legal advice. Let's focus on community policies. —Ynhockey (talk) 10:23, 11 April 2014 (UTC)
        • The comment by Ynhockey may be misleading. To confirm the facts:
          1. WMF Legal has published no advice for uploaders to Commons with regard to whether they are at personal risk by ignoring the URAA.
          2. The WMF Board of Trustees has given no legal advice for uploaders to Commons. In Response_from_Wikimedia_Foundation_Board_of_Trustees, the Chairman of the Board summarised the WMF's position, in that they would comply with DMCA notices but had no intention of seeking out material to be removed that may fail to comply with the URAA.
          3. WMIL published Letter to the BoT regarding URAA which neither contained legal advice, nor referred to legal advice from any lawyers, let alone "multiple lawyers".
        If there are references that contain specific legal advice for administrators or uploaders to Commons with regard to their risks in failing to comply with the URAA, I would gladly welcome some links in this discussion, so that volunteers can benefit from reading that advice for themselves rather than second-hand rumours that advice might exist. In suggesting that rather than opinions and position letters, the community should be asking for legal advice that could be produced as a defence by an unfortunate volunteer in a court of law, I mean no disrespect to His Holiness. -- (talk) 15:36, 12 April 2014 (UTC)
Yes, Prosfilaes undoubtedly correct about that. It would, for example, allow Commons to host Picasso's entire 'Blue' period and much of his work of the next 20 or so years, most of so-called 'Rose' period. But note that the proposal is about hosting more files that are public domain in their home country. Coat of Many Colours (talk) 07:16, 10 April 2014 (UTC)
  • Symbol oppose vote.svg Oppose I don't know what exactly "actual knowledge" involves, but in most of the URAA cases, to avoid the fact that they are in copyright in the US takes "willful ignorance".--Prosfilaes (talk) 21:08, 9 April 2014 (UTC)
    • Note that I'm not even arguing about "due diligence". For many of the works in question, we can say without significant doubt that they were first published after 1923, in copyright in their source nation in 1996, not published in the US within 30 days, and thus in copyright in the US.--Prosfilaes (talk) 08:15, 10 April 2014 (UTC)
  • Symbol strong support vote.svg Strong support As per Thryduulf above. Coat of Many Colours (talk) 22:28, 9 April 2014 (UTC)
  • Symbol oppose vote.svg Oppose - They might still be in copyright? What about those that clearly are still in copyright in the US, such as Darah dan Doa (1950 film from Indonesia, copyright expired in Indonesia in 2000, meaning there's no doubt that the URAA applied)? The wording of this proposal is unclear, and is leading users unto temptation... — Crisco 1492 (talk) 04:22, 10 April 2014 (UTC)
    • You have clearly completely misunderstood the proposal - works that are under US copyright are irrelevant, our handling of them will not change. This proposal affects only those that might be. The proposal has no detail because it is explicitly about the getting agreement on the principle. If there is agreement then the next stage is detail, so both your points are irrelevant. Thryduulf (talk) 00:33, 10 April 2014 (UTC)
    • @Crisco 1492: How does what you say about Darah dan Doa square with this remark you uploaded at File:Darah_dan_Doa_P%26K_Apr_1953_p28_1.jpg:
"According to the copyright law in effect in Indonesia at the time of the URAA, copyright on this image expired on 1 January 1979 (25 years after publication). As the new copyright law was enacted in 2002, after the URAA, copyright was not extended in the United States.{{PD-IDOld-Art30}}{{PD-1996|Indonesia|January 1, 1996}}." Coat of Many Colours (talk) 20:35, 10 April 2014 (UTC)
  • @Coat of Many Colours: Still photographs =/= videos. Indonesian copyright law treated the two differently at the time of the URAA (film was 50 years post-publication, still images were 25 years. Please take time to read the copyright laws in question. — Crisco 1492 (talk) 03:46, 12 April 2014 (UTC)
Note in particular Article 27, paragraphs 1 and 2. — Crisco 1492 (talk) 03:53, 12 April 2014 (UTC)
      • Might be is still debateable. Something that is clearly under copyright in the US per one's reading may be "might" in somebody else's (there's a recent deletion discussion where this played out, but I can't find it). That is my issue. What is clearly copyrighted to one person may still be "might" to someone else. — Crisco 1492 (talk) 04:22, 10 April 2014 (UTC)
  • Pictogram voting comment.svg Comment I'm still studying the topic. I noticed darkweasel94's comment "Following the laws of the country our site operator is located in isn't debatable." Yes; we can't change the applicable law and any such attempt can be considered as a call to encourage violation of law. Later he commented "The requirements of US law are simply that the WMF needs to delete files after a valid takedown notice — that is clear. If we follow only these requirements, we'll end up as something else than a repository of free media." How? As far as I know, we host/encourage "works or expressions which can be freely studied, applied, copied and/or modified, by anyone, for any purpose." It is not practical because different countries have different laws. Works should be free in US is a practical limitation imposed on us due to the location of our service provider. In a reuser point of view, it is not very relevant. I need not follow the laws of US to use a work from Germany in India. We already have many such works here (with FOP, personality rights, etc.) which should be evaluated by the reuser himself before a reuse.
    So IMHO, restricting contents free in US is a limitation and I'm not a fan of that country. Why not leave the limitation of the law to WMF? They will delete them after a valid takedown notice. Till then, reusers from other countries can use them without breaking any law. A warning template like "personality rights" will help to advise reusers from US about the applicable law. Correct me if I'm wrong. Jee 03:27, 10 April 2014 (UTC)
That would certainly mean we would host more files while keeping us legal in the US, but accepting anything without regard for US copyright and leaving responsibility for removal entirely to the WMF would not be at all consistent with the volunteer ethos of the Wikimedia projects. It would make us like all the other websites, and a haven for US copyright violations. So I doubt that that would be acceptable to the community. --MichaelMaggs (talk) 06:59, 10 April 2014 (UTC)
Thanks Michael. So the only possibility now is to explore John's idea. So a regretful Symbol oppose vote.svg Oppose for now. (This proposal seems not very well prepared. But I don't want to be part of some people clearly have some anti WMF agenda. Their claim to protect the interest of the reusers are pure nonsense.) Jee 06:00, 13 April 2014 (UTC)
  • Symbol oppose vote.svg Oppose per Prosfilaes. Copyright law requires due diligence searches are done. The servers are in the US; US URAA checks must be done. Commons is not a clearing house. Each uploader is on their own; WMF does not guarantee legal assistance for good faith copyright infringements, though they may choose to assist and have done so on occasion. Copyright infringements are explicitly not permitted in the meta:Terms of Use. It would be good if (a) we set up a clearing house project in another jurisdiction where shorter term copyright exists so we can collaborate on URAA checks, and (b) set up additional wikis for media that fails the URAA test, and improve wikipedia so it can use media on those additional repositories for non-US readers. ;-) John Vandenberg (chat) 04:16, 10 April 2014 (UTC)
Yes, it would be great if we could avoid all these problems by setting up servers outside the US that link back to the Wikimedia projects (as non-linked servers are not of much practical use). But linked non US servers have already been explicitly dismissed by the WMF as not legally possible: see the Legal and Community Advocacy/Wikimedia Server Location and Free Knowledge in the background section at the very top of this page. You seem to be opposing on the basis that that has not already been fully considered, when it has. Unfortunately, we have extremely limited freedom of movement, and there are no 'good' solutions. I repeat that there is still nothing else (legal) on the table. If anyone can come up with something, we will all be delighted. --MichaelMaggs (talk) 06:49, 10 April 2014 (UTC)
Firstly, my opposition is not tied to the suggestion I later offered. It stands on its own, and is not uninformed.
Regarding the WMFs wikilegal page, I am aware of it but it is more of a WMF position paper rather than a useful legal analysis. It does dismiss the idea of moving the servers out of the US, but it most certainly does not say that doing so would be impossible.(that would be silly) It does say that there would be other implications, and then offers scary sounding issues that make it sound undesirable. Unfortunately it does not start from the position that we need a distributed network of servers and then outline the possible solutions and the legal risks. There will always be legal risks; some can be mitigated, and others need to be fought. As I said, put a server in Brazil, have it owned by a separate organisation serving PD-Brazil media only, and then include in the WMF sitematrix to be a repo for people who can legally view PD-Brazil media. The worst that Brazilian courts can do is censor the PD-Brazil material or force the PD-Brazil repo to be detached from the WMF sitematrix, which would likely result in greyed out images saying "you cant see this image because of the Brazil ruling XYZ", civil protests and legal opposition from the free cultural movement. John Vandenberg (chat) 08:00, 10 April 2014 (UTC)
Hi John, you've stated a novel position that I don't think has been fully discussed up until now, and it sounds very worthwhile doing that. Presumably, the idea would be that MediaWiki would allow for an entirely distributed infrastructure, so that users looking for example at an English Wikipedia page might see different things depending on the copyright status of the images being used. A viewer in the US would see a placeholder rather than an image if a (normally public domain) image is known to be copyright in the US (eg via URAA). Can I suggest you set up a new page for this to be discussed in more detail? I will happily contribute. --MichaelMaggs (talk) 08:14, 10 April 2014 (UTC)
John, did you have any thoughts about developing your idea into a proper proposal and seeking wider feedback? Obviously, it's much wider-ranging than this small Commons-only proposal, and would really need to be done on Meta, with input from across the entire Wikimedia community. It will not be easy, but would be a very interesting and useful discussion. Will you start it? Nick has expressed interest, and maybe he could help?--MichaelMaggs (talk) 06:33, 11 April 2014 (UTC)
  • Symbol oppose vote.svg Oppose per above. This is a terrible idea. -FASTILY 08:23, 10 April 2014 (UTC)
  • Symbol oppose vote.svg Oppose For this perhaps we should host Wikimedia on Sweden and may on thepiratebay servers :) −ebraminiotalk 10:52, 10 April 2014 (UTC)
  • Symbol oppose vote oversat.svg Strong oppose as we really do need to protect not only ourselves (as the WMF community) but more importantly, end re-users of the material we hold. We should be overly cautious, the WMF can afford legal protection, it can beg for money, a small business, an artist, they might not be able to afford to defend themselves against a claim of copyright infringement. We already assume our users and end re-users of content understand enough about copyright to make informed decisions, but I'm sure we all know that's simply not true. We have a moral right to protect everybody who chooses to use Commons to the best of our ability and we're not doing that it we start to be less cautious about deleting potential infringing material. That's why I absolutely whole heartedly support and endorse the suggestion by John Vandenburg and expanded on by Michael Maggs as being the way forward here, we should be hiding images with copyright issues, in, say the USA from Americans, but leaving them freely available to users from other countries where no such copyright issues exist. It provides the level of protection I believe our end re-users deserve. Nick (talk) 11:47, 10 April 2014 (UTC
You would have to hide pretty well everything from the UK! If the idea were viable I would support it, but in practice I suspect all it would really mean is that wikiholics everywhere would take on VPN accounts, pissing off very much all our duck-hunters I dare say. I think the real way forward here is to face up to URAA realistically, but not to be ruled by it (for example allowing what amounts in my view to nothing more than copyright trolls to police each and every upload and lord it over newbies, not to mention pretty well anyone who hasn't taken a sickie or two off to master key Wikimedia policy documents some of which extend to hundreds of hundreds of quite hard words!: editors exhibiting that kind of behaviour should surely be discouraged as non-constructive and topic-banned when it persist - rather instead the Community fast-tracks them to Secretary-General). It's a change of attitude and culture we need here. Coat of Many Colours (talk) 12:35, 10 April 2014 (UTC)
  • Symbol strong support vote.svg Strong support With the current policy Wikimedia Commons inhibited itself to gather and put in people's hands a huge part of the information that is legally in the public domain. The policy is damaging Wikimedia Foundation estrategic goals. We'd already lost thousands and thousands of unvaluable material and hours of dedication.--Roblespepe (talk) 15:11, 10 April 2014 (UTC).
    • We are actually talking about information that is not legally in the public domain for a substantial fraction of our users and with respect to the jurisdiction this site is hosted in. --Dschwen (talk) 18:20, 10 April 2014 (UTC)
  • Symbol oppose vote.svg Oppose and Symbol oppose vote oversat.svg strongly oppose with extra cheese all copyright policy changes made by tallying votes. (My vote counts twice if it's strong, right?) LX (talk, contribs) 16:25, 10 April 2014 (UTC)
    • @LX: I will ensure that the bureaucrats are aware that they have to count 3 votes -- 1 for your oppose vote and 2 for your strongly oppose vote. How to weigh up the extra cheese I'm not sure how they will take that into account -- unless the "Extra cheese" is more a statement on this whole ridiculousness :) russavia (talk) 16:34, 10 April 2014 (UTC)
  • Symbol oppose vote oversat.svg Strong oppose I could just repeat all the points some other editors have made, but that would just be a waste of storage, in summary it goes against our Terms of Use in that "The Wikimedia Foundation wants to ensure that the content that we host can be re-used by other users without fear of liability and that it is not infringing the proprietary rights of others." and that is why the PRP needs to remain the way it is. LGA talkedits 22:15, 10 April 2014 (UTC)
  • Symbol strong support vote.svg Strong support. The precautionary principle is only one of several possible approaches to managing uncertainty, in our case legal uncertainty. Valid alternatives exist, like quantitative risk assessment. In Commons our actions or non-actions will not kill people or irreversibly destroy Nature, which are the cases when precuationary principle is normally invoked. Our risks are "just" infringement lawsuits so we need not necessarily adopt the most radical approach to risk management ever invented. Other options should be debated and I am glad that this RfC is putting the subject on the table.--Hispalois (talk) 04:21, 11 April 2014 (UTC)
    • The quantitative risk assessment to Commons from works in the PD in the US is 0. If that's your real concern, your first step should be there, not files that aren't in the PD in the US.--Prosfilaes (talk) 08:38, 11 April 2014 (UTC)
  • Symbol strong support vote.svg Strong support. --El Pantera (talk) 08:41, 11 April 2014 (UTC)
  • Symbol support vote.svg Support, after much thought. I am not an expert in the matter, but I have always thought that Commons is much too strict on this sort of issue. Michael's proposal seems sensible. Chase me ladies, I'm the Cavalry (talk) 11:28, 11 April 2014 (UTC)
  • Symbol oppose vote.svg Oppose I think right way to deal with "bad" law is to advocate it change in country legislature. Voting to ignore parts of law is wrong idea. There are plenty of other copyrights law matters which makes Commons uploaders angry. Obvious example is freedom of panorama. For example, Wikimedia Russia was able to influence to expand freedom of panorama in Russian Federation. --EugeneZelenko (talk) 14:25, 11 April 2014 (UTC)
  • Symbol strong support vote.svg Strong support It's not a question of breaking the law. It's a question of not extending copyright to stuff that wasn't done as such. B25es (talk) 14:53, 11 April 2014 (UTC)
That statement seems clearly wrong. It is not our choice to simply "not extend copyright", this is precisely what is governed by law, which you intend to ignore and encourage users to break. I am quite baffled by this obvious ignorance. --Dschwen (talk) 17:08, 11 April 2014 (UTC)
The editor is Spanish. I expect he was saying that the proposal is not about copyright evasion but copyright avoidance (to borrow an analogy from [4]). That would seem reasonable unless of course one is determined to profile him as ignorant and stupid. I'm surprised you don't accept the spirit of "please feel free to skip the detail if you are not into copyright issues; your opinion still matters" and extend good faith. I should much like to have an opinion incidentally from one of Russavia's not-mates, you would do, on this upload at Commons here from one of our nayers here, minded likewise as you to observe the letter of the law and not to lead plebs into error. Can we take it as benchmark aristo best practice? Coat of Many Colours (talk) 18:23, 11 April 2014 (UTC)
@Dschwen: Erm, hello ... :) Coat of Many Colours (talk) 21:22, 11 April 2014 (UTC)
Pong. So? The user has en-3 on his page, and the statement seems pretty clear to me. Garnished with a "strong" he suggests to ignore copyright extensions the legality of which was confirmed by the supreme court. I prefer not to throw around words like "stupid" though. --Dschwen (talk) 21:28, 11 April 2014 (UTC)
And you want me to comment on Crisco's statements where he first says that some indonesian film is clearly still copyrighted, but then says that the film is clearly not copyrighted? Sorry, but I'm not a mind reader and I have no idea how a user can come to two opposite conclusions on the same subject. You'd have to ask him/her. --Dschwen (talk) 21:33, 11 April 2014 (UTC)
 :) enjoyed your comments. I do think you were a little hard on the Spanish editor. I would have let you off with "lament his ignorance", but "baffled by" ratchets it rather. Thank you anyway, and consider yourself expunged. Coat of Many Colours (talk) 22:07, 11 April 2014 (UTC)
Yeah, it looks like I unloaded all my baffledness on B25es. And it may be a bit too much baffledness for just his shoulders to carry. In fact I should probably distribute it across the many supporting shoulders ;-) --Dschwen (talk) 02:33, 12 April 2014 (UTC)
  • Dschwen, stills and videos were treated differently under Indonesian copyright law at the time (as I've explained above). Darah dan Doa as a video (i.e. the film proper) is still copyrighted in the US. Film stills published before 1970 are not. — Crisco 1492 (talk) 03:48, 12 April 2014 (UTC)
  • Thanks for clarifying this! I was genuinely confused here. --Dschwen (talk) 15:00, 12 April 2014 (UTC)
@Dschwen. Yes, I do understand and sympathise. The proposal is not however, about breaking the law. As I see it, it's about how we police the law. Is this precautionary principle a recognised principle in copyright law, or just a Commons matter, and if the latter why not make it a little less strict given that, as it turns out, there are no shortage of volunteers willing to give up their entire lives policing Commons? Fæ's strictures are very relevant to those engaged in large-scale transfer of archives, but I can't see the risk is very great to your average Cisco Kid uploading stills from their favourite Westerns. Incidentally, and finally, I would rather put with the inconvenience of URAA than see the servers moved from the US. I think we should be realistic about that. Coat of Many Colours (talk) 11:24, 12 April 2014 (UTC)
  • Symbol oppose vote oversat.svg Strong oppose Per Fae, darkweasel94, Dschwen, Elcobolla, and other a number of opposers. It is the worst idea I've seen on Commons until now. User:Hym411 --placing Hym411's comments as per Special:Diff/121200514. russavia (talk) 09:03, 12 April 2014 (UTC)
  • Super Symbol strong support vote.svg Strong support, as I am all for ignoring laws that will never impact me. I don't live in the US and I don't give a fuck if the WMF has its servers there. Saffron Blaze (talk) 06:18, 13 April 2014 (UTC)
    • What you also seem to give no "fuck" about are our reusers in the US that rely on us to provide freely usable images (per our tagline). Should we ammend our tagline to freely usable, except when your are subject to US laws, but we don't give a fuck about those? --Dschwen (talk) 22:28, 14 April 2014 (UTC)
      • We already place the onus on re-users for issues of Personality Rights, Trademark, etc. That is the point was putting across. Saffron Blaze (talk) 20:01, 16 April 2014 (UTC)
  • Symbol oppose vote.svg Oppose Per Fae and Dschwen, but also since as Fae stated the proposal is to vague to know what are we agreeing to. On one hand it states that we will still follow the US law and on the other hand it proposes to change our policy to allow more files which we can not upload due to restrictions of the US law. Both statements can not be true. --Jarekt (talk) 13:32, 14 April 2014 (UTC)
  • Symbol oppose vote.svg Oppose. We know from a great deal of experience what can happen when we try to get consensus around "actual knowledge" even when it's not enshrined in policy: many of us in the Wikimedia world can get carried away debating what will constitute real proof. In fact, an example of this came up: the family of a (purported) rights-holder left a note on Commons: #Case study: Fijian photos from the 1940s/1950s We of course do not know anything for certain based on a talk page comment, but if there is a plausible claim of copyright in play, it strikes me as simply rude to badger such people with insistence that they fulfill our need for actual knowledge. Do we want them to email things like birth certificates, contracts, and copyright registrations to OTRS so that we can have everything properly documented, so that we can have actual knowledge? I certainly hope not! We basically make a promise to our readers that free reuse is OK. When the law says that a certain class of content is not available for free reuse in certain places, I think we have to delete that kind of content. Otherwise, we are making a choice not to hold up our own, voluntary promise to our readers. (I also want to address the WMF's position too -- it's fine for them to decline to recommend that we adopt a certain policy. But declining to recommend is not the same thing as recommending against it! The WMF's chief concern is its own legal liability. When we get into editorial decisions about what kind of content we want to provide for our readers, that is outside the purview of the WMF -- so of course they would not make a recommendation on that basis.) -Pete F (talk) 07:15, 15 April 2014 (UTC)
    • There is a great deal of difference between that case, where there is an actual claim to the copyright that has been made in good faith and is highly plausible based on the facts presented, and the typical cases this will deal with where there is no claim to copyright and any claim would be significantly unlikely. Michael's proposal is not to require actual knowledge of infringement but just to require something between that standard and the current theoretical possibility of infringement. Expressed numerically, proven copyright infringement is 1.0 and proven global public domain status is 0.0 and US law requires us to delete anything scoring 0.95 or greater. Commons currently deletes anything with a score of about 0.15 or greater, but Michael's proposal is change the standard to allow media scoring somewhere in the range 0.3-0.8 or less at a point set by future discussion - clearly within US law. The Fijian photos would score about 0.9 on this scale and so would be deleted regardless of this proposal. 21:43, 25 April 2014 (UTC)
      • Where are you getting 0.95 from? US law says that we must not host anything that is copyrighted without permission or fair use. Period. If we don't know, then strict liability doesn't apply, but it's still illegal. On the flip side, the DCMA lets the WMF host anything, including Disney's last hit Frozen, so long as the WMF deletes it when they're informed it's on their servers.--Prosfilaes (talk) 20:33, 28 April 2014 (UTC)


  • Symbol strong support vote.svg Strong support - for what? It is current policy that files should NOT be deleted for licensing reasons if "to the best of our knowledge" they are free." I have clarified what our policy IS. That fact does not rely on an interpretation of what is or is not "significant doubt", or what the term means. It's an extremely vague term (much like "material", as in "material adverse effect on earnings") that doesn't really have a generally agreed upon definition and doesn't really belong in policy. It's exactly that vagueness that is causing much of the common, and problematic friction. So, I do think a policy change is needed. The "significant doubt" term needs to be removed, defined, or replaced with something with some precision to it, e.g. "where the balance of the evidence indicates that the work is likely (as in 50%+ odds) non-free, or there is equally strong but conflicting evidence, it should be deleted." I'm glad there's an RFC for this; thank you, Michael. This is a good solid, reasonable definition, but likely to lead to less wikidrama, so I'm sure it will (continue to) have its detractors. --Elvey (talk) 03:01, 6 June 2014 (UTC)

Case studies[edit]

I feel that in order for our community to be better informed, and better able to come to an informed decision, we need case studies. It would be amiss for people to support this terrible suggestion for the loosening of a policy which has served Commons so well without such things to go on. The only thing we have to go on, is that URAA discussion. So, how about people present examples of why Commons needs to go down the route that Michael Maggs is suggesting. I'm all ears, and willing to be swayed. russavia (talk) 12:46, 10 April 2014 (UTC)

I'll give you an example, Russavia. I started editing at Wikipedia back November last. I had in mind to improve its coverage of art exhibitions and of contemporary artists in general. I made a fairly honest attempt to acquaint myself with copyright law. In hindsight I recognise it was inadequate for my ambitions, but nevertheless I did understand the issues and I was editing in good faith. Within days I was being templated about my uploads. It was pretty discouraging and I began to lose interest in the project. You can read my trials and tribulations here if you are curious.
Towards the end of last year I was asked if I would help with uploading the work of the German artist Charlotte Salomon, an artist I should hasten to add I in fact know very little about, due to come into the public domain in the EU commencing 2014. I replied that on my understanding her work couldn't be uploaded to Commons because it was still copyright in the USA until 2059 earliest some of her work and I didn't really see the point of uploading Fair Use images. In the event I found myself defending Fair Use uploads at NFCR here, a debate that grew so weird I eventually ducked it.
Now of course I have to be careful of what I say here, but I think anyone of normal sensibility would agree that Salomon's story as illustrated by herself (but her work is not merely autobiographical) should be represented on Wikipedia. But the Fair Use images were very poor, in my view almost an insult to her memory, and what is more, by a strange lacuna, as far as I can work out couldn't be used on any of the French, Netherlands, or German projects (because they lack Exemption Doctrine Policies - is that right?) But these are the countries most associated with Salomon i.e. to say she is a German national, she worked in France, and her Foundation and surviving work reside in Amsterdam.
Finally a few days ago, I was given a heads up on my Talk page about the new dispensation over URAA and following an extremely helpful discussion here (for which I am very grateful), I have commenced uploading some of her work to Category:Charlotte Salomon.
That's the difference. Coat of Many Colours (talk) 18:45, 10 April 2014 (UTC)
@MichaelMaggs:, @Dschwen:, @EugeneZelenko:, @Jusjih:, @Juliancolton:, @Cecil:, @Kanonkas:, @99of9:: see what inaction over the actual issue (ignoring URAA) is leading to? Thankfully @Odder: was on the ball. Would any of you care to explain to this editor what the implications of his uploads to Commons are. Not only the implications to the editor, but also the implications to re-users of this content. In terms of case studies, whilst @Coat of Many Colours: considers this a positive example, if one reads comments by @Clindberg: closely, it is an absolutely atrocious case study. russavia (talk) 22:29, 10 April 2014 (UTC)
I feel this is a disappointingly aggressive response, Russavia, and I wholly don't understand that about @Odder: (I don't see a contribution from this user here). Regarding Carl's contribution, he merely suggested a possible loophole (I shan't quibble on the word) i.e. to say a small subset of Salomon's work was publishd simultaneously in the US in 1963 along with publication in the UK, Netherlands, Germany and Italy, before the present Foundation holding the copyright was formed (1971). That's what puts URAA protection in doubt. What exactly is your problem with that? Do you know better?
Your solicitous concern for my safety is comical. Coat of Many Colours (talk) 22:57, 10 April 2014 (UTC)
Just to add here, Russavia, amongst all those pings above, I can only find a couple or so that actually contributed to this discussion (one at least has since added a contribution). You're calling me out and bringing your mates along? Coat of Many Colours (talk) 07:01, 11 April 2014 (UTC)
@MichaelMaggs:, @Dschwen:, @EugeneZelenko:, @Jusjih:, @Juliancolton:, @Cecil:, @Kanonkas:, @99of9: are not "my mates" but rather they are the bureaucrats on this project that let the URAA discussion slip under their radar, and in the case of a couple of them they are still yet to acknowledge concerns by numerous people on this project. In relation to your assertion that some of the works were published simultaneously in the US in 1963; what is needed is this when they were FIRST published? There is zero evidence of this, particularly as some of them were works created in circa 1942. I suggest you go back and read Carl's comments again; for this is EXACTLY what COM:PRP is supposed to protect uploaders, re-users, and this very project, from. russavia (talk) 08:30, 11 April 2014 (UTC)
This is silly Russavia. I'm following the Pistorius trial at the moment and I'll come back to this in the evening. But the date of first publication of Salomon's work is not in question. It was 1963 as is confirmed in numerous sources, You can appreciate that the circumstances of Salomon's work first being noticed is of intense interest to historians. This issue here is the simultaneous publication in New York LCCN 63014210. I'm seeking clarification of that from the Joods Historisch Museum in Amsterdam. I repeat I'm not an expert on Salomon, neither could her principal biographer confirm for me the situation. I have been extremely careful about all this. Your whole attitude is suspect - above all why are you so passionate about it? - I'm flattered really :). I don't think I can usefully add more. I shall summarise this evening. I think you're being ridiculously non-constructive and I'm deeply underwhelmed. Coat of Many Colours (talk) 08:49, 11 April 2014 (UTC)
I now have a response just in from JHM:
Dear [redacted],
Thank you for your e-mail.
We thought that the first American edition was from 1981. But the page of the Library of Congress that you sent, says something else.
Tillich published the book in Dutch, German and English in 1963. In English in London in 1963, as far as we know.
I am sorry but we cannot clarify this.
Best regards,
[redacted]
Kenniscentrum/Resource Centre
Joods Historisch Museum / Jewish Historical Museum
Postbus 16737
1001 RE Amsterdam
Telefoon:+31 [redacted]
e-mail: [redacted]
e-mail museum: info@jhm.nl
site museum: www.jhm.nl
I have ordered a copy of the 1st edition of the American publication and when I receive it and have examined it shall know how to proceed. Thank you, and you will forgive me I'm sure if I don't waste any more of my time on this shit (your word for this poll) from you. I'm sorry you are so contemptuous of a good faith attempt from me to contribute to the debate. Coat of Many Colours (talk) 09:18, 11 April 2014 (UTC)
I said I would clarify in the evening. A subset of Salomon's works, comprising some 80 gouaches, were first published in the US, U.K, Netherlands, Germany and Italy in 1963. The rest of her opus was published, as far as US law is concerned, in 1971 when her entire work was gifted by her estate to the Charlotte Salomon Foundation. In the EU her work became PD at the beginning of 2014, as did the first tranche of 80 gouaches in the US. Thank you. Coat of Many Colours (talk) 21:45, 11 April 2014 (UTC)

A minor addition to this request, could someone briefly analyse the numbers of files involved, perhaps just the deleted and undeleted totals under a URAA rationale? Despite uploading over 250,000 images, I can only recall a couple having deletion requests where the URAA was included as a rationale and I cannot remember any occasion where this was the sole reason for an eventual deletion. My impression is that in comparison to our 20 million collection, the numbers that have been affected in the past are significantly less than 1% and (with common-sense and along with our shortage of administrators) is likely to remain at this level. -- (talk) 13:38, 10 April 2014 (UTC)

As far as I remember, URAA affected images estimates ranged into the thousands. This might be very few compared with the millions of images hosted in Commons, but those lost images are often of more value as they depict notable works of art or notable events ant can't be replaced by free images. Furthermore, sometimes those few images are the only ones we can have on its subject, and the same can be said about other borderline cases like non-US FOP. Therefore, your question is interesting, but quantity is not the reason to try to keep affected images.--Pere prlpz (talk) 15:46, 10 April 2014 (UTC)
Yes, I am not discounting that, though there is plenty in the other 99.9%+ of Commons that is equally valuable; URAA compliance is likely to be a haphazard filter for quality. If the numbers can be worked out, I can see no harm in having them published here, rather than choosing to not share this information with our contributors. This may help some of us to decide where to spend our volunteer time, if I am to upload another 2,000 research quality images from the Library of Congress digital collections, or help with this issue, the numbers might inform my choice. -- (talk) 17:23, 10 April 2014 (UTC)
@:, can you clarify what you mean when you say 'the URAA was included as a rationale'. Surely you don't mean {{Template:Not-PD-US-URAA}}? I'me a bit lost here and I should like to understand. Coat of Many Colours (talk) 19:33, 10 April 2014 (UTC)
I mean that in the deletion request that the URAA was raised as a potential copyright issue and discussed. However I do not have the specific examples to hand (I think one was pre-1946 Japanese PD based on creation date, digitally released recently in the US as copyrighted, not long after the photographer's death, which means calculated copyright from death rather than creation), and I doubt they would be illuminating because I do not recall any of my uploads ever being deleted for the URAA alone. My sources tend to be reliable, but in some cases curators make mistakes in the catalogue, sometimes the uploaders to the source sites make mistakes when uploading photos they thought they own the copyright for, and sometimes I am the one blundering in good faith but potentially liable, because I failed to filter out potential copyright material for a tricky batch upload - this latter case is the worst as it puts me at personal risk. -- (talk) 19:49, 10 April 2014 (UTC)
Erm yes, thanks, clearer. But isn't the point then that these files you uploaded, at least one of which I've used in Wikipedia article space incidentally (thank you very much), weren't URAA controversial/infringing anyway in the first place. I really can't see what your point is here. The sort of file we should be interesting ourselves would be this I note above were there would seem to be a URAA issue to address..Coat of Many Colours (talk) 20:47, 10 April 2014 (UTC)
I am adding Template:Wikilivres page from English Wikisource to be amended later. In order to apply precautionary principle to delete files affected by URAA, we should consider redirecting to Canadian Wikilivres: already receiving many files, so users who arrive here know better why we keep them out and where else to get affected files.--Jusjih (talk) 05:30, 11 April 2014 (UTC)
Though only indirectly related, the WMF now has received (and complied with) a DMCA deletion request, which is based on URAA, as the painter died already in 1932 (Category:Hermann Ottomar Herzog): Commons:Office_actions/DMCA_notices#Hermann_Herzog. --Túrelio (talk) 08:56, 11 April 2014 (UTC)
I think we are struggling to find good examples of URAA cases that are not muddied by other issues. In the Herzog case, the works in question are claimed to have been unpublished at his death and the URAA has not been used as a rationale for the claim of copyright. Further the works are in the USA, rather than being an example of PD in a non-US country and with a later claim in the US. The claim on some of these images may well be overturned once we can verify any prior exhibition history (as he regularly exhibited his works in the USA). -- (talk) 09:17, 11 April 2014 (UTC)
Before 1977 exhibition in itself doesn't constitute publication in the US unless copying was permitted. In American Tobacco Co. v. Werckmeister - 207 U.S. 284 (1907) it was ruled "The property of an author or painter in his intellectual creation is absolute until he voluntarily parts therewith. While the public exhibition of a painting or statue where all can see and copy it might amount to a publication, where the exhibition is made subject to reservation of copyright and to restrictions rigidly enforced against copying, it does not amount to a publication." So not only wiill you have to establish exhibition but also the right to copy, making your task doubly difficulty.
Fæ, you've said elsewhere that you're not prepared to act as aunt Sally this time round to uploaders over URAA, and I respect that. But do you have a view as to what liability an EU user might face in uploading an image PD in the EU? Thus in the affair where thousands of high resolution images from the National Portrait Gallery UK were uploaded after dezoomifying them, one of the submissions made in defence was that the uploader was an American citizen and it was legal in his jurisdiction for him to do so. I'm wondering whether symmetry applies over an EU citizen uploading a PD image in the EU. I rather doubt she can have any personal liability. Do you have or know of any opinion? Coat of Many Colours (talk) 21:22, 11 April 2014 (UTC)

I am sad to say that the idea of inter-country immunity is a false cloak. A parallel can be drawn with how allegations of a cybercrime under US law can forever ruin lives of UK citizens with threats of long prison sentences or claims of damages that would bankrupt any private person, even if the UK government resists full cooperation. Illuminating stories of UK citizens are those of Richard O'Dwyer and Gary McKinnon. As a volunteer with experience of several very large uploads from sources in the UK and elsewhere, I am cautious about uploading where I do not have explicit permission, and have often written to the holder of the digital archive explaining my plans in advance, so that I have a demonstrable record of good faith attempts to comply with both copyright and database rights, should I ever be subject to a later claim of damages. See some published examples at User:Fæ/email. I would strongly advise any volunteer uploading media on Commons to always ensure they cannot be accused of knowingly breaking the law or attempting to play theoretical games of fine interpretation with multi-national IP law, either in their home country or in the US. In a case of URAA interpretation, I frankly don't care what individual Wikimedia Chapters or the Foundation board might write as supportive letters, I would need a firm commitment that the Foundation takes liability for my actions and solid legal advice on record, should I follow their directive and volunteered to be the one systematically uploading files (or an administrator restoring files) that unambiguously breached the URAA.
It should be noted that despite making encouraging noises that unpaid volunteers in the Commons community should ignore our current understanding of URAA compliance, the fact is that the Foundation shall comply with DMCA notices using the URAA; the Foundation legal department has never stated they would officially refuse to comply with the act. This is to be expected, the job of WMF legal is to protect the Foundation from successful claims of damages.
The personal risk for the individual unpaid volunteer, is that though a claim of damages for a single file might be limited, so a judge might assess damages at only a few hundred or a few thousand dollars, batch uploaders like myself upload tens of thousands of files from the same source. Past legal cases show that courts just multiply up the damages. Consequently a smart US lawyer could make me the target of a multi-million dollar claim. This personal life-ending scenario scares the willies out of me, as the Wikimedia Foundation offers me no unequivocal guarantee of protection, nor has offered me any proper legal advice for the URAA.
A community !vote such as this, would be meaningless in court, regardless of how many thoughtful respected volunteers with considered opinions to put forward say the risk is quite low, or want to rant about how ghastly it is to have files deleted by aggressive Commons wikilawyers that they believe are useful or educational; unless they are the ones taking action to breach the URAA (or knowingly failing to take corrective action), they are not at risk of being sued. -- (talk) 22:13, 11 April 2014 (UTC)
Yes, a very full and thoughtful response. Thank you very much. Coat of Many Colours (talk) 23:24, 11 April 2014 (UTC)
Those emails useful, Fæ. I shall follow your example. I thought the Cecil Beaton especially interesting and shall read it closely. Thank you. Coat of Many Colours (talk) 23:46, 11 April 2014 (UTC)
@Túrelio: No, this DMCA is not based on the URAA. This painter, originally German, then emigrated to USA, and a big part of his works was first in USA. As the WP article explain: "Following his death, his family retained a large group of his paintings, most of which were released to the art market in the 1970s." These are most probably the paintings which are removed because of the DMCA. Regards, Yann (talk) 19:17, 12 April 2014 (UTC)

The WMF is not afraid of the boogey man in the closet so why are we?[edit]

Pictogram voting question.svg Question Do I understand correctly that opposition is predicated on the need to protect re-users? If that is indeed the case what re-users are we actually protecting? The only one I could think of are those in the US. However, it is obvious the WMF, a US based public charity, is not that concerned and is willing to deal with issues on a case by case basis. So why should we disadvantage the entire world for a few folks in the US who could be warned about re-use where it is a concern? The sane thing to do is adopt a policy where source country law prevails and place the onus on US re-users to check if it the item is free in the US (a simple template where the issue may exist). This would not be so different from what we do regarding personality rights, trademark issues and other copyright-like rights. Saffron Blaze (talk) 00:04, 12 April 2014 (UTC)

Yes; all these protests look like some US propaganda and a few people's anti WMF interests. Read my comments above. Ultimate losers are reusers from other countries, especially the third world who are the main beneficiaries of a such an educational project. But the current proposal is also not very professional, I prefer the one John suggested. Jee 02:32, 12 April 2014 (UTC)
@Saffron Blaze: we care about our re-users because that is our aim, see the Terms of Use where it spells it out The Wikimedia Foundation wants to ensure that the content that we host can be re-used by other users without fear of liability and that it is not infringing the proprietary rights of others." so unless that changes we are not able to host images on commons that are still in copyright in the US. LGA talkedits 03:05, 12 April 2014 (UTC)
But it is not "The Wikimedia Foundation wants to ensure that the content that we host can be re-used by other users in USA without fear of liability and that it is not infringing the proprietary rights of others. But we don't care the interests of the reusers from other countries. " :( Jee 03:14, 12 April 2014 (UTC)
LGA talk, the patronizing lectures people give out here is both laughable and sad. I had hoped that the phrasing of my questions would have perhaps given people the notion that I was using something like the Socratic method there instead of being ignorant of "our" terms of use. Je, understood clearly enough. Terms of Use that only concern themselves with copyright and ignore other copyright like rights shouldn't be held up as some laudable goal. Regardless, the point is we harm fewer re-users by adopting the source country law than we do by adopting US law. The needs of the many outweigh the needs of the few. Saffron Blaze (talk) 04:28, 12 April 2014 (UTC)
Then we need to get the WMF to move the servers out of the US, because as long as the servers are located in the US we have to respect that law. LGA talkedits 05:17, 12 April 2014 (UTC)
But it is a matter WMF look into. Why the community trying to educate them with our unprofessional knowledge while they have a well equipped legal team? Jusjih who endorsed the proposal closing stated on his talk page "I do not oppose massive restoration of deleted images by the URAA as long as the Wikimedia Foundation knows how to tolerate their existence here." Jee 05:41, 12 April 2014 (UTC)
And the Board in their response, clearly states "We agree that we should oppose, when possible, laws that interfere with our mission to distribute the same free knowledge to everyone in all countries." Jee 06:17, 12 April 2014 (UTC)
(Edit conflict) But I have not seen anything to show that the WMF does know how to "tolerate their existence here"; There is also the issue of 17 U.S. Code § 512 which only protects "service provider(s)" where they do not have "actual knowledge that the material ... on the system or network is infringing" any file which has been deleted at a DR citing URAA if it is then restored would not be covered by that protection as the service provider has knowledge the image is covered by a US copyright. LGA talkedits 06:23, 12 April 2014 (UTC)
But you can't choose to ignore laws. LGA talkedits 06:25, 12 April 2014 (UTC)
See this. It states "to date, we have not received a single takedown notice under the URAA. A valid notice would provide us with the facts necessary to make a determination under the URAA. It requires information that may not be available to a Commons volunteer trying to make a decision without a takedown notice. So WMF does not see a reason to delete content simply because of general concern about the URAA. If we receive a valid takedown notice or get actual knowledge of infringement, we will do a full legal analysis of the work based on all the relevant information that is presented in that notice and vigorously resist any invalid notices." Why not wait for the very first take down notice and see how WMF handles it? Then we can decide whether it is better to mass delete them or by case by case. I'm not advocating restorations; only talking about future cases. Jee 06:35, 12 April 2014 (UTC)
That logic can be used for any image, are you advocating that we should stop deleting images that are nominated for copyright infringement until we get a takedown notice ? There is no difference here, we have a set of images which it is not that hard to work out if copyright was extended and it looks like we are trying to bend the rules to allow us to keep them. LGA talkedits 06:48, 12 April 2014 (UTC)
Images must be deleted if that are nominated for copyright infringement in source countries. But no preference need to be given for US as this is an international project and our mission to serve "all people". The limitations per US law has nothing to do with our vision, mission or core values. Free in US not making anything more free or special for people outside that country. The current issue by URAA is a threat to our mission and let us see how WMF handle it. I'm a volunteer of Commons, the common people; don't want to become a soldier of US to fight for that country. :) Jee 06:58, 12 April 2014 (UTC)
  • That is exactly correct Jee. If the WMF is using the logic that unknown, albeit likely small, risks of URAA cases should not drive hosting policy to exclude valuable content then you can extend that logic to how we deal with any image that is legal in source country. Saffron Blaze (talk) 15:52, 12 April 2014 (UTC)
Yes, saying we can't host any images affected by the URAA because it puts our reusers in danger is complete nonsense. For a big part at least if not all, there is no real legal risk. The WMF would not obviously take that position if they was one. It is very sad that some people keep repeating this without any relevance to this issue. The minumum would be to show some proof that there is a legal risk.

Here are 3 examples to make my point clear:

  1. Government works: foreign gouvernments won't make a copyright claim t in USA. That was explained by Carl L.
  2. Orphan/anonymous works: if the author is unknown, there obviously can't be a copyright claim, and much less in a different country.
  3. Works were the author is dead for years: if a work in the public domain in its country of origin, and the author is dead for say 30 years, it is very unlikely that heirs will come and make a copyright claim in USA.
There may be some other cases, but these are coming on the top of ny head. Regards, Yann (talk) 19:49, 12 April 2014 (UTC)

Case study: Fijian photos from the 1940s/1950s[edit]

Verbatim text of email sent to one our clients on 10 April 2014

G'day fellow Perthian -- sorry, I don't know your name so I'm unsure how to address you -- I hope you and your father are enjoying our fabulous April weather; it seems that summer doesn't want to end.

I am a volunteer on Wikimedia Commons and I am writing to you today in relation to your message that you left on Wikimedia Commons[1] about your fathers, Roland Stinson, photograph of Suva.[2]

I have the pleasure to advise you that I have gone ahead and deleted it, but I do feel I need to inform you as to why I have done so, and of your rights should you come across this photo, or other photos of your fathers, on Wikimedia Commons in the future.

With no evidence as to when the photograph was taken, as the photograph was published in Fiji in 1952,[3] its copyright expired, at the latest, in 2002 pursuant to the Copyright Act 1999, part II, division 4, 22 (2), Fiji.[4] In short, photographs from Fiji generally have their copyright expire 50 years after creation.[5] If Wikimedia Commons only had to abide by Fijian law, we would be able to freely use the photo as it is in the public domain.

However, Wikimedia Commons, is hosted by the Wikimedia Foundation (WMF), and with servers physically located in the United States, we are bound to comply with United States law.[6] Although the photograph is public domain in Fiji, and even in Australia, it is not public domain in the United States due it having its copyright restored in that country as a result of the Uruguay Round Agreements Act.[7] So whilst you may not have a case for copyright infringement for usage of this photo in Fiji, and many other countries, you would have a case for copyright infringement for usage in the United States as of 2014. It is upon that basis that I have deleted the photograph from Wikimedia Commons.

Please note that I am not a lawyer, and the above should not be construed as legal advice, but is rather my informed opinion as a result of my experience as an unpaid volunteer administrator on Wikipedia Commons for many years. If you need to seek legal advice, you should consult a lawyer. With this in mind, however, you are welcome to contact me directly on this email, or via my Wikimedia Commons talk page,[8] and it would be my pleasure to deal with any issues for your father if his images should appear on Wikimedia Commons in the future.

Having said all of this, the photographs your father has taken in Fiji from the early-mid 1900s would be highly valuable for our projects, and it would be fantastic if we were able to use such photos on Commons, but in an ethical way that complies with required laws. If this is something that your father might be interested in, and which I would I, as well as the entire Wikimedia community, would appreciate, I would welcome the opportunity to discuss this with you and your father, so that you can make an informed decision. I am free to discuss this via my direct email, or being in Perth would be happy to meet to discuss.

If you have any questions, please don't hesitate to hit reply and contact me directly on this email (russavia.wikipedia@gmail.com).

Kind regards,

xxx xxx (aka "Russavia" on Wikimedia Commons)

cc:

  • Jan-Bart de Vreede; Chair of the Wikimedia Foundation Board of Trustees (jdevreede@wikimedia.org)
  • Wikimedia Commons Bureaucrats (bureaucrats-commons@lists.wikimedia.org)
Their response

I heard back from Roland Stinson's daughter some hours later, and she has kindly agreed to discuss what I raised in the email, and will organise for me to meet her father to discuss with him a possible donation of images to Commons. Roland Stinson was a photographer in Fiji in the 1940s and 1950s and in conjunction with his father and his brother was a partner in Stinson Photographic Studios. As one can tell from this, this, this and this, amongst others, and as we can see from Category:Fiji, any sort of donation of images from Fiji, particularly from that period, would be most welcome. I will begin discussions with Roland's daughter in the next couple of days.

Additional info

On the basis of what I raised in the email I sent to Roland Stinson's daughter, I have deleted File:Lautoka postcard.jpg (circa 1956) and File:Victoria Parade postcard.jpg (circa 1950s). However, I will not be touching File:Fijian women ceremonial.jpg, because being published in 1935 it was out of copyright in Fiji in 1985, and not eligible for URAA protection; I will, of course, explain this to Roland and his daughter. I am certain that they will be appreciative that someone is looking out for their interests, rather than expecting a 91 year-old man to file a DMCA takedown notice. russavia (talk) 04:50, 12 April 2014 (UTC)

Do you think he is thankful to US for "looking for his interests" than his home country? In my case, I don't want any favour than my country can offer me. Better die than be a slave of them. :( Jee 05:54, 12 April 2014 (UTC)
If you want the rights on your work in the US arbitrarily limited (having to do with country of first publication, not your country), then say so. I've never seen anyone who was worried about their rights 69 years from the death of the author but didn't care a year later.--Prosfilaes (talk) 08:50, 15 April 2014 (UTC)
@Russavia. Not sure what your point actually is, but File:Victoria Parade postcard.jpg was noted as probably being from the 1940s and thus might well have been ineligible for URAA protection. The precautionary principle as currently worded talks about "significant doubt", and on that basis deletion is justified. If however the principle was shifted closer to "actual knowledge" then we could keep it. Coat of Many Colours (talk) 12:03, 12 April 2014 (UTC)
Phrasing this as protecting the rights of the creator is bunk. The only protection going on here is for WMF or potential users in the US. In the case of WMF they have said they are not concerned enough to require deletion. Saffron Blaze (talk) 19:31, 12 April 2014 (UTC)

Closing this RFC?[edit]

Based on the raw !votes (and ignoring any additional weight of those with with extra cheese) I count 15 in favour so far, with 18 opposed. Clearly, the possibility of changing our deletion test from "significant doubt" to something else while remaining within the confines of US law is a contentious issue, and I see no emerging consensus. If this discussion seems useful, and likely to throw up new ideas, it may be worth keeping it open, but as things seem to have become rather sidetracked now I'd have no objection if someone wants either to pull the discussion back on point or to close the RFC down. Alternatively, other innovative ideas would be more than welcome. --MichaelMaggs (talk) 18:16, 24 April 2014 (UTC)

Before this is closed, can @MichaelMaggs: please answer the question that was asked of him on his talk page a couple of times, and which has been avoided by him on several occasions now. Because this is not as simple as just closing this RFC, and any bureaucrat that should close this should know that. Thank you Michael for your expedited response to the question. russavia (talk) 20:40, 24 April 2014 (UTC)
@MichaelMaggs: can you also explain to the community how this discussion has gotten sidetracked. Because from where I (and undoubtedly others) sit, the discussion on this RfC is absolutely relevant. russavia (talk) 20:51, 24 April 2014 (UTC)
Can you just shut the fuck up? Your petulant whining is borderline harassment. Saffron Blaze (talk) 23:30, 24 April 2014 (UTC)
^^^^^ I understand where this sentiment comes from, but I find this expression problematic. ^^^^^ See COM:MELLOW -Pete F (talk) 19:00, 25 April 2014 (UTC)
If I thought Russ had delicate sensibilities I might have used other words. Russ is tremendously productive but when he grabs one of these bones and gnaws on it, it gets tiresome and disruptive. Saffron Blaze (talk) 00:33, 26 April 2014 (UTC)
@Saffron Blaze:: Nobody said anything about Russavia's feelings, and I agree with your assessment of that. But this statement is very far outside the bounds of what anybody else should have to put up with, to participate in a discussion about policies. If you personally have a problem with this one user, please find a less disruptive way to deal with it. -Pete F (talk) 01:48, 28 April 2014 (UTC)
Saffron Blaze, Please restrain yourself from using profanity. If you want to use that kind of language with your friends or family that is your business but do not do it at public Wikipedia forums. It does not help with cordial discussion and distracts others from the point you are trying to make. --Jarekt (talk) 03:12, 28 April 2014 (UTC)
Please refrain from lecturing me. Has lecturing someone on the internet ever been effective for you? I doubt it. So stop it and get back to something productive, which was my advice to Russ. Saffron Blaze (talk) 03:17, 28 April 2014 (UTC)
  • As far as I see, at least three admins have said Russavia to refrain from personal attacks, edit wars and misbehavior on this single topic. (Trijnstel at Template_talk:Not-PD-US-URAA#Editwar.3F, Túrelio in the votes section of this very thread, and Bidgee at User_talk:MichaelMaggs#Vandalism_is_not_appreciated. But it seems he has no plan to respect them, and continues his uncivil conversation against anybody on his way. "No, fuck off and have a nice day. russavia (talk) 01:40, 25 April 2014 (UTC)" and repeated reverts to ignore a user is just another example. I wonder why Pete F and Jarekt didn't see that "profanity" but saffron's comments. Does we have separate evaluation standards for different users? Jee 04:04, 28 April 2014 (UTC)
    • We should not do, but in practice yes - deletionists and others who wish to uphold or enforce a very strict interpretation of Commons' rules, policies and scope get much greater leeway than those with different views. Those who are more equal in this regard are permitted by practice to make arguments with lower standards of evidence, use much swarthier language, and engage in a much wider latitude of behaviours. Not all of those who hold the conservative views act make use of this freedom by any means - most are happy to engage with the same standards of behaviour and civility as those who disagree with them are required to, but there are notable exceptions. Thryduulf (talk) 09:28, 28 April 2014 (UTC)
      • Polarizing the Wikimedia community or individuals as deletionists and undeletionists is unhelpful and untrue. Similarly promoting the view that administrators are the ones doing the "permitting" is misleading. If you don't like decisions of the current community of administrators then run your own RFA, it is not a closed shop and administrators on this project are easily held to account by creating a desysop !vote, which anyone is free to do. This is a system that unfortunately does not exist on other Wikimedia projects, where being an administrator is like joining the House of Lords. -- (talk) 10:13, 28 April 2014 (UTC)
        • I don't want to polarize the community into deletionists and undeletionists, most active and sleepy admins, top N contributors and people with a few edits and give special considerations to a particular group. But all I see since I joined Commons is "some people" holds special considerations, dare to attack others or ignore to answer simple questions, as they think they are unquestionable. They holds the admin chairs for a long period and any ANU/de admin attempts by the desperate victims will be "killed" by their fellow admins. And, if the rule breaker is a big one; even our most respectful admins like Trijnstel failed to control them. What a fate. :( Jee 10:56, 28 April 2014 (UTC)
Jee, Sorry we do not notice everyone one of so mature users that have to resort to profanities once they run out of the actual arguments, but when I see uncivil conversation I try to alert the parties that it is not OK. I did not follow this discussion very closely but I agree with that if you feel that some admin abuses his powers, does not follow our (few) policies or behaves in a way that reflects badly on the rest of the community than please request de-adminship. Many of them do not succeed but it is not a pleasant process for anybody and if nothing else it catalogs pattern of misbehavior which might be helpful in the future de-admin proceedings. --Jarekt (talk) 12:44, 28 April 2014 (UTC)
Jarekt: Yes; I too agree that responding to an uncivil user in the same manner is no way helpful. But I've not much hope in our dispute solving process as far as some of our brave admins and senior users collectively make a bold step. That said, I remember we succeeded in one case when Slaunger made a brave step. :) Jee 13:23, 28 April 2014 (UTC)
Is this related to closing the RFC? Just curious how this has been going so far. No one has commented on the RFCs I open. :( TeleComNasSprVen (talk) 17:32, 28 April 2014 (UTC)
This RfC can be closed as abandoned as 33 self practicing lawyers can't make a policy that affects hundreds of thousands users here. Moreover, this is a matter needs highly professional guidance so best think we can do is to consult Wikilegal and the Board. But they already expressed an opinion that many of our members are not satisfied. I failed to see a concrete opinion from the three community elected board members; neither see somebody contacted them and raised the concern how a policy change affect our members like uploaders and admins, if any. I asked about this arlier; but he refused to do so as he had some previous bad experiences (which is a valid reason). So TeleComNasSprVen, if you are interested to proceed, do consult them. People like Sj are very helpful and interested in comunity related matters. Otherwise, just abandon this discussion for now and continue as what we did earlier (deleting any file which is not known to be PD or freely licensed per the law which is applicable to WMF.)
What Saffron Blaze said is to concentrate on the point instead of using this discussion to attack a few users like MichaelMaggs, Jusjih, Yann, or our Chair. Attacking the WMF will not lead us anywhere as far as they have full control over this project. I wonder whether some of our users have a hidden agenda to destroy this project and setup a new one suitable to their needs. If so, go out and do it under the lights instead of playing under darkness. I had noticed this move; that is why I stroked off my oppose here. Jee 02:38, 29 April 2014 (UTC)
Is "some of our users have a hidden agenda to destroy this project" a way of admitting that's your goal? Because that seems to be a possible consequence of constantly accusing other users of having hidden agendas.--Prosfilaes (talk) 03:55, 29 April 2014 (UTC)
Yes; this is how I'm working for destroying this project, spending most of my time wandering in the wild, returning home with scars, wounds, and dehydration. I'm not a user spending all of my life in front of computers in an air-conditioned room scanning Flickr for other's works. Jee 05:08, 29 April 2014 (UTC)
Since you saw the need to sow dissension again, implying that certain users are inferior for the way they add to Commons, I'm going with yes, you are trying to destroy this project.--Prosfilaes (talk) 08:33, 29 April 2014 (UTC)
  • Being naïve or deliberately obtuse are just as effective means to destroy a project. Saffron Blaze (talk) 12:24, 29 April 2014 (UTC)
So you know to answer yourself; just noticed how you protect this project too. :) Jee 08:55, 29 April 2014 (UTC)

Means vs. mission[edit]

I think there is some confusion between what are your mission and the means to fulfill it. Our mission is to host files for Wikimedia projects and educational use which are under a free license or in the public domain. But not all our files are usable for everybody, either because of the local copyright law or other legal issues (privacy, etc.). The legal details of how these files are usable are the means, not the mission. And the means need to be adapted to fit our mission.

Because the WMF and the servers are in USA, we have initially a requirement that files need to be in the public domain or under a free license in the USA. Now, the WMF itself said that we don't need to fulfill this requirement for URAA-affected files. I don't think we need to be stricter than the WMF itself. The claim than hosting any URAA-affected would put our reusuers in danger is not reasonable. There are at least 3 categories where hosting these files is safe: government works, anonymous works, and works where the copyright owner died long ago. Beside, we can decide on a case-by-case basis, or put some safe for our purpose rule.

In short, there is no need to put "public domain in USA" on marble. This is not our mission, only a means, which may need to be adapted. Yann (talk) 05:38, 26 April 2014 (UTC)

However we have an obligation under the DMCA to remove material hosted that is in violation of US Copyright law, were we have either "actual knowledge that the material ... is infringing" or "is not aware of facts or circumstances from which infringing activity is apparent". With all the URAA-affected files we are clearly aware of circumstances which infringing activity is apparent and therefore we should not host them, the WMF position looks for all the world looks like one of "we are going to ignore a law we don't like and wait and see if someone sues us". They choose to host servers in the US because it gives the community the protection of US free speech but they wish to ignore URAA, is that not, as they say, "Having their cake and eating it" ? LGA talkedits 08:04, 26 April 2014 (UTC)
I agree that WMF has made their position clear, they are only obliged to remove copyright infringing content from their servers upon the receipt of a valid DMCA notice or actual knowledge of infringement (on the part of the WMF). A very confrontational approach might be for the Commons community to send an e-mail to WMF Legal very explicitly listing all the files the Community believes are copyright infringements due to URAA restored copyright. A sufficiently detailed notice from the Community to the WMF might count as actual knowledge of infringement, a very dangerous position for the WMF to be in if they were ever sued by a copyright holder. How the WMF responded to such a notice would be very illuminating with regards to their actual position on hosting URAA-restored files. However, while the preceding might be interesting as a thought experiment, I want to make it clear that I don't think it's a good idea (it's probably born out of a bit of frustration with how the WMF can't seem to take a clear position on this issue).
If Commons wanted to take the approach Yann proposes, a much better way forward would be for Commons to petition the WMF to relax the Foundation Licensing policy in order to permit Commons to have an Exemption Doctrine Policy (see the failed Commons:Exemption doctrine policy for WMF logos). An EDP could then be devised that permitted Commons to host U.S. copyrighted materials that are no longer protected by copyright in their country of origin, but that nonetheless had their U.S. copyright restored by the URAA. Presumably the terms of the EDP could be written narrowly, to ensure that Commons only hosted on fair-use grounds media that had their U.S. copyright restored by the URAA. This would, in turn, allow Commons to revise Commons:Licensing and Commons:Project scope to include such images. No change to the PRP would be necessary. This approach has the advantage of getting explicit support (or rejection) from the WMF for the change, and more importantly, support that is not constrained by the limits placed on WMF Legal (i.e. can't offer legal advice to the Community, etc.). —RP88 08:42, 26 April 2014 (UTC)
I actually rather like the thought experiment of Commons Admins deferring all these actions (deletion/undeletion) to WMF Office actions. It leaves no room for ambiguity, nor does it put any volunteer administrator or uploader at personal risk of a future claim of damages. Were this to be incarnated as a proposal, I would support it. -- (talk) 09:28, 26 April 2014 (UTC)
Explicitly forcing WMF Legal to take notice and delete (or to take notice of an undelete and then not redelete) is interesting as a thought experiment, but it is very adversarial for the Commons community to adopt a policy explicitly designed to undermine the Foundation's legal position. But you're right, adopting that as a policy would address the concerns about volunteer liability. Wow, I can't believe you actually have me thinking my outrageous proposal might actually have some merit. Still, petitioning WMF for permission to adopt an EDP seems much less confrontational. —RP88 09:48, 26 April 2014 (UTC)
I'm concerned that other Commons users might be averse to handing power and decisions over to the WMF. For all that the WMF staff know, they only delete files to comply with DMCA takedown requests, under their own policy; they don't know about how to follow Commons community consensus, or Commons policies and guidelines. As I've explained at Template talk:Not-PD-US-URAA#Editwar:

this has nothing to do with the WMF, they could care less what we do to curate our content and they've explicitly stated multiple times they cannot give legal advice on these issues even with regards to DMCA takedown requests. Simply speaking, they've stated their "official" position, and whether it has any bearing on what we do is ultimately up to the Commons community. For all the WMF knows, we could be hosting a bunch of copyrighted files that no one has complained about and the WMF will not care unless they receive a DMCA takedown request.

Transferring power and curation decisions to them would burden WMF staff resources even more than they already have, and is likely to irk about half the Commons userbase. The WMF would probably receive the liability of section 230 and would make deletion decisions based on their own policies, not Commons policies. TeleComNasSprVen (talk) 18:53, 26 April 2014 (UTC)
For about the 45th time, I'm tired of "I don't think we need to be stricter than the WMF itself." coming from people who support Commons deleting files out of copyright in the US because they are in copyright in the EU. It doesn't make any sense to me to delete files if and only if they break the Commons copyright law, an exceedingly complex set of rules that is an incredible pain to follow that means nothing legally, where anyone distributing Wikipedia with pictures can be sure to have unlicensed copyrighted pictures in their locale. Saying something is public domain under Commons copyright law doesn't mean anything.--Prosfilaes (talk) 20:39, 28 April 2014 (UTC)
@Prosfilaes: Sorry, but I have difficulty to understand you here. Laws, and particularly copyright laws, are not black and white. There is always room for interpretation. That's why we have courts and judges. Laws are complex by nature, not because of Commons' way of puting them in practice. I see that some people want to apply some copyright laws like an building manual. But it doesn't work that way. Or do you mean something else? Regards, Yann (talk) 06:05, 29 April 2014 (UTC)
Huh? I don't understand your response.
(a) We are stricter then the WMF. If we shouldn't be, let's take off those self-imposed chains of non-US copyright first.
(b) We have a set of complex rules for Commons. Despite that, a Wikipedia with all its images may not be legally distributable in any country. Then what do we gain by having this set of complex rules?--Prosfilaes (talk) 08:51, 29 April 2014 (UTC)
@Prosfilaes: Is this a question, a statement, or just a rhetoric mocking my message? Yann (talk) 09:00, 3 May 2014 (UTC)
  • Prosfilaes, I actually find Yann's logic easy to follow, but you lost me with your comment. What exactly is your position? Saffron Blaze (talk) 18:24, 3 May 2014 (UTC)
  • It's great and all that we got this ideal vision of creating a database of free images, but it's actually very difficult to put into practice properly. For example, I recently tagged for deletion an image that was apparently copyrighted from a brief google search at the source website, and that had been uploaded to Commons and remained here since 2006. There are plenty of other websites that believe we are indeed a repository of free images, including several news websites citing us as sources for their images (which is great for CC-BY-SA), but when we find out an image is copyrighted and take it down, it leaves a lot of broken redlinks on those websites. What are they going to do when we do them such a disservice? Are we really better than any of those other image-sharing repositories like Flickr, which is probably swamped with copyrighted submissions every day, but also has a dedicated and paid staff to curate them? The only difference has been that unlike other websites our primary clients are simply Wikimedia Foundation projects. TeleComNasSprVen (talk) 06:16, 14 May 2014 (UTC)
  • Sites like Flickr only accepts "own works" except from only a few trusted firms like LOC, NASA, etc (white list). So every copy right violation, the uploader is responsible and they will block the entire account and delete all their uploads if a complaint arises. Here the main problem is uploads by anonymous third parties. Most of those uploads are useless too. I had suggested to create white lists here (for Flickr and similar cases) too; but nobody cares. Jee 07:10, 14 May 2014 (UTC)
    If "nobody cares" then Commons:Questionable Flickr images/Users would not be maintained. The last edit to this list was 3 days ago, and it gets several additions every month as new accounts appear. Your proposal for a whitelist would be a massive barrier to any user wanting to upload their perfectly valid Flickr album, a blacklist is a community accepted approach that learns from evidence rather than a default assumption of bad faith for all new users. -- (talk) 08:22, 14 May 2014 (UTC)
    1.Yes; I'm aware of the blacklist. But it will only prevent future uploads, when once caught after we get some copyvios. The question above was how we can avoid deleted contents that make broken links in reuser space.
    2."Your proposal for a whitelist would be a massive barrier to any user wanting to upload their perfectly valid Flickr album." How? A white list will guarantee the Flickr user and uploader are same, if true. It will save our LR time too as it is no more need for such cases.
    3."Default assumption of bad faith for all new users." AGF, is good; but why a new user suddenly starts uploading third party contents? All tools are not for newbies. We can restrict third party uploads only to autopatrolers.
    4."Anonymous users" We can't do nothing here as it is a WMF policy to edit anonymously. But IMHO, some generic policies are not very useful for this project.
    5.The main advantage of a white list (a site or Flickr stream pre reviewed by a trusted user) guarantee at least the profile is somewhat trustable. I agree with you the current practice provide us more contents; but credibility is the price we have give. It is up to Commons to choose which; I just answered to the question of TeleComNasSprVen on how we can improve our credibility. :) Jee 09:09, 14 May 2014 (UTC)
  • @User:Saffron Blaze: It is a fact that we delete files that we don't have to as per the WMF. As far as I know, the WMF has never said we should delete any file in the public domain in the US, yet we do. Naturally, I object to people saying we shouldn't delete any files we don't have to, when they support policies that say that we should delete files we don't have to.
    Deleting files that are in copyright in the US means that we can say that all our (non-freely-licensed) files are in the public domain for some non-idiosyncratic sense of the public domain. Without that rule, when we say a file is "public domain" or "in copyright", it doesn't mean anything outside a Commons-specific sense, defined in part by the 25,000-word Commons:Copyright rules by territory. If we're going to walk away from what the law says is public domain and what isn't, then our self-imposed rules shouldn't be 25,000 words long.--Prosfilaes (talk) 03:36, 15 May 2014 (UTC)
  • Prosfilaes, understood. Frankly if were up to me I'd host any file free in the source country and place a disclaimer to cover anything else. It is what we do with FoP and now URAA. Let the WMF deal with those that want to pursue issues in the US through the server location loophole. Saffron Blaze (talk) 12:06, 15 May 2014 (UTC)
  • I think Prosfilaes has simply been calling for us to be more consistent in applications of our policies. If something is PD-EU but not PD-US (e.g. URAA-affected files) and we do not delete it, then if something is PD-US but not PD-EU we should also not delete it. (PD-EU is an example, but it could apply to any PD-source-country.) If we delete one, we should decide to delete the other. TeleComNasSprVen (talk) 23:12, 16 May 2014 (UTC)
  • Not really. We are drowning in legal complexity. I've accepted the rule that our files had to be PD in their source nation as a restriction on PD-US, but giving up PD-US makes it an arbitrary vast set of rules that doesn't actually correspond to anything in law.--Prosfilaes (talk) 04:44, 6 June 2014 (UTC)
Why the US of all countries then? The "servers" explanation does not apply anymore, as per WMF, and after URAA neither does the "freest country" explanation. If this is a global project, how is the US law different from any other law? • Yael (Meronim) • 00:44, 17 June 2014 (UTC)
The servers and the foundation are still US entities, and the WMF still deletes files that a copyright holder files a DMCA notice for under US law.
The Marshall Islands have no copyright. Iran doesn't recognize any foreign copyrights. Why the URAA?--the big change in US law was when we signed the Berne Convention, the URAA merely retroactively enacted parts of the Berne Convention. If freedom is ignoring foreign copyrights, well, Iran is much more consistent about that then the US has been since 1909.--Prosfilaes (talk) 07:07, 17 June 2014 (UTC)