Commons:Stock.xchng images/vote

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The vote is over. This page is now protected

The voting period started on 20 Feb 2005, 09:00 (UTC) and ended on 13 Mar 2005, 09:00 (UTC)

Situation of the copyright holder when uploading

Assuming that people uploading pictures on Stock.xchng are the actual copyright holders, the first thing to do is to scrutinize the agreement between them and Stock.xchng and seek which, if any, rights are transferred from the author to Stock.xchng.

When prepared to upload a picture on Stock.xchng, you are urged to read the upload rules and the license agreement. The upload rules are not related to the copyright issue but only determine the kind of pictures Stock.xchng is willing to accept on its site. So let's see what is in the licence agreement : again not much in relation to the legal copyright issue, in fact just a link to terms of use that, as a copyright holder and future uploader, you are invited to accept.

So here we are, what have I to accept as a copyright holder according to the terms of use?

  1. You are automatically assumed to grant license for the use of said images to any and all visitors to this website with the restrictions you specify at each photo. In the upload frame below, the uploader can choose the usage rights to be either no restriction, contact me, contact and credit me or written permission needed.
  2. All images uploaded must be original material created by you.
  3. You may not now, or at any time in the future, demand money or income from Stock.XCHNG or its owners or proprietors or those using images found on this site for the use of said images.

Obviously, only 1. is of interest to us, because it provides the way visitors can use the pictures with the specified permission of the author and teach us that the copyright of the author has not been tranferred to Stock.xchng for itself or on behalf of the photographer.

Hence, we have to consider, knowing the structure of Stock.XCHNG site, that the only copyright information we have to know is either at the bottom of the picture or - when the photographer wants to be more specific about the licende under which he relases his material - on his Stock.XCHNG's user page.

So that when the picture mention no usage restriction and the user states like "hi folks, enjoy", in this case, free means free. If the picture states no usage restriction and the user page says "please no commercial use", this not free and we don't use it. And when the picture mention no usage restriction and the user page states the picture is released under GDFL or CC, we can use it with the appropriate GFDL ou CC tags. Of course if, instead of no usage restriction, the picture states contact me: you have first to contact.

And so on, and so forth : we were seeking for the legal relationship between Stock.XCHNG and the copyright holder and all we've found is the way the copyright holder decides to release his material to us, visitors.

Downloading Stock.XCHNG material

Rationally, all we should know about downloading and use Stock.XCHNG pictures is above since, as we noticed, copyright holders do not delegate any rights to Stock.XCHNG itself.

Yet, Stock.XCHNG decided most strangely to put some more rules on downloaders (again in terms of use):

  1. You may use any of the photos in our system free of charge for any commercial or personal design work if you obey the specified restrictions concerning each photo you download. Fair enough and consistent with what we've seen.
  2. Selling and redistribution of these photos (individually, or as a whole) without written permission is prohibited. Using the photos in website templates, on postcards, mugs etc. doesn't count as selling or redistribution, however you are not allowed to build a gallery using the photos you downloaded from here. Here Stock.XCHNG crosses the red line:
  • decision on selling and redistributing belongs to the copyright holder, Stock.XCHNG never requested the uploaders to manage their rights on their behalf. So that this provision appears to be void.
  • As to the prohibition of building a gallery, this is not related to a copyright problem. It is very understandable that Stock.XCHNG does not want to find everywhere exact mirror sites of its own site, and in this sense only, the prohibition appears to be legitimate. This is related to fair trade laws, not copyright laws. But this prohibition could not imply that pictures dowloaded on Stock.XCHNG and put on a web site with plenty of other images from varied sources cannot use <gallery> feature. Only a copyright holder could say so and, again, Stock.XCHNG is not.

At the end of the terms of use, the disclaimer admits flatly that Stock.XCHNG has no copyright on the material: The owners of Stock.XCHNG cannot be held responsible for any copyright violations, and cannot guarantee the legality of the photos stored in its system. You have to contact the authors to make sure. You use the site and the photos at your own risk!

Conclusion

It therefore seems possible to recommend that:

  1. Commons can host pictures from Stock.XCHNG in sensible way, i.e. just checking the usage restriction at the bottom of the pictures and double-checking in visiting the user page. Stock.XCHNG being not a copyright holder is not in situation of prohibiting the use of galleries on Commons as long as Commons is not becoming a Stock.XCHNG illegal mirror site, which is not the case, and by large.
  2. To stay cautious though, it would be better never to use a Category:Stock.XCHNG nor to make a Stock.XCHNG page containing only Stock.XCHNG stuff, because in those cases we will be too close from the kind of gallery Stock.XCHNG legitimately prohibits.
  3. In case this vote is positive, I finally recommend we delete or modify the current {{Stock.xchng}} as well as the current Category:Stock.xchng photographs
  • The vote will start on Sunday, February 20, 09:00 (UTC) and end after three weeks on Sunday, March 13, 09:00 (UTC)
  • An absolute majority (50% or more) wins the vote, where neutral and abstain votes are excluded.
  • Please sign your name using four tildes (~~~~) under the position you support, possibly adding brief comments afterwards. Extended commentary should be placed below, in the section marked "Discussion" or at Commons talk:Stock.xchng images/vote.

Pictures from Stock.XCHNG can be uploaded on Commons as long as there is no conflicting usage restriction explicitly decided by the copyright holder (the photographer)

Agree

  1. Greudin 13:27, 20 Feb 2005 (UTC)
  2. Dbenbenn 19:31, 20 Feb 2005 (UTC)
  3. Chris 73 01:33, 21 Feb 2005 (UTC)
  4. MarkSweep 11:41, 21 Feb 2005 (UTC)
  5. Quadell (talk) 15:30, 21 Feb 2005 (UTC)
  6. nyenyec  23:56, 22 Feb 2005 (UTC)
  7. Morven 06:15, 23 Feb 2005 (UTC)
  8. Commons cannot get in any trouble by using these images; any possible badness is on the part of the person that downloaded them to upload to commons. Even this is very sketchy, and the most Stock.xchng can probably legally do is ban the user from their servers if they somehow prove that they are uploading stock.xchng images to Commons. If we do go with 'disagree', I suggest that the policy includes something like "if, however, you want to use an image from Stock.xchng, contact the copyright holder to find out if the images can in fact be used." --SPUI 08:59, 23 Feb 2005 (UTC)
  9. Habakuk 19:20, 24 Feb 2005 (UTC), see Commons_talk:Stock.xchng_images
  10. Fanghong 03:20, 25 Feb 2005 (UTC)
  11. m:Avoid copyright paranoia. Neutrality 23:49, 25 Feb 2005 (UTC)
  12. --Leopard 17:26, 28 Feb 2005 (UTC)
  13. Nataraja 13:32, 4 Mar 2005 (UTC)
  14. Tarry 20:52, 4 Mar 2005 (UTC)
  15. Lacrimosus 10:12, 6 Mar 2005 (UTC)
  16. --Juntung 11:33, 6 Mar 2005 (UTC).
  17. Ashibaka 20:35, 6 Mar 2005 (UTC)
  18. Eloquence 23:43, 6 Mar 2005 (UTC)
  19. Changed my mind reading villys and other comments over and over again Paddy 15:32, 20 Feb 2005 (UTC)
  20. --Elian 00:09, 7 Mar 2005 (UTC)
  21. Amayzes 03:28, 8 Mar 2005 (UTC)
  22. --Hautala 12:59, 8 Mar 2005 (UTC)
  23. --Mononoke 11:09, 9 Mar 2005 (UTC)
  24. Get_It 21:22, 11 Mar 2005 (UTC)
  25. Ævar Arnfjörð Bjarmason 22:10, 11 Mar 2005 (UTC)
  26. -- Stahlkocher 15:55, 12 Mar 2005 (UTC)

Disagree

  1. AFAIK problems with the germay data-base-right. --DaB. 15:40, 20 Feb 2005 (UTC)
  2. For me the problem with Stock.xchng is the enforcement of terms of use, if these terms are enforceable, I am against any image from this site, if these terms aren't enforceable there is no problem to categorize those images. Gbiten 01:18, 21 Feb 2005 (UTC)
  3. [quote Gbiten] -- Schorsch 21:29, 21 Feb 2005 (UTC)
  4. Sad but true :-(. I also follow Gbiten. --Avatar 21:32, 21 Feb 2005 (UTC)
  5. By the principle of caution. --CSamulili 08:44, 3 Mar 2005 (UTC)
  6. --Patrick-br 16:51, 13 Mar 2005 (UTC)

Pictures from Stock.XCHNG should not be categorized as such or listed as such in a special page to avoid setting up a Stock.XCHNG « gallery »

This provision will cause the deletion of the current Category:Stock.xchng photographs and the modification of the current {{Stock.xchng}} (include categorization)

Agree

  1. Greudin 13:29, 20 Feb 2005 (UTC)
  2. Should be Ok. --DaB. 15:40, 20 Feb 2005 (UTC)
  3. Dbenbenn 19:32, 20 Feb 2005 (UTC). I didn't think of that when I made the category.
  4. James F. (talk) 21:25, 20 Feb 2005 (UTC)
  5. Chris 73 01:34, 21 Feb 2005 (UTC)
  6. Even if such a thing is legal for Wikipedia to do, why cause trouble unnecessarily? Even if they would lose such a lawsuit, why don't want to ask for one. Quadell (talk) 15:36, 21 Feb 2005 (UTC)
  7. Morven 06:15, 23 Feb 2005 (UTC)
  8. Aphaia 06:57, 24 Feb 2005 (UTC)
  9. Fanghong 03:22, 25 Feb 2005 (UTC)
  10. --Leopard 17:28, 28 Feb 2005 (UTC)
  11. Tarry 20:52, 4 Mar 2005 (UTC)
  12. Juntung 11:34, 6 Mar 2005 (UTC)
  13. Ashibaka 20:35, 6 Mar 2005 (UTC)
  14. Eloquence 23:44, 6 Mar 2005 (UTC)
  15. Amayzes 03:45, 8 Mar 2005 (UTC)
  16. --Hautala 13:00, 8 Mar 2005 (UTC)
  17. --Mononoke 11:50, 9 Mar 2005 (UTC)
  18. Get_It 21:24, 11 Mar 2005 (UTC)

Disagree

  1. For me the problem with Stock.xchng is the enforcement of terms of use, if these terms are enforceable, I am against any image from this site, if these terms aren't enforceable there is no problem to categorize those images. Gbiten 01:18, 21 Feb 2005 (UTC)
  2. Full ACK Gbiten Paddy 15:32, 20 Feb 2005 (UTC)
  3. The SXC terms are not enforceable, so putting images in a category is not problematic. --MarkSweep 11:38, 21 Feb 2005 (UTC)
  4. Sad but true :-(. I also follow Gbiten.--Avatar 21:33, 21 Feb 2005 (UTC)
  5. [quote Gbiten] -- Schorsch 21:41, 21 Feb 2005 (UTC)
  6. Why are people voting yes on the above option and no here? Either these terms are enforceable or they're not, it seems to me that they aren't so no heed should be paid to this particular stock.xchng clause just like the others. Ævar Arnfjörð Bjarmason 22:10, 11 Mar 2005 (UTC)
    • That's the logical thing to do if you believe (as I for one do) that the SXC terms are not enforcable: we can use their images under the terms set by the photographer (yes above), and we shouldn't be worried about creating a gallery (no here). --MarkSweep 01:50, 14 Mar 2005 (UTC)
  7. --Patrick-br 16:52, 13 Mar 2005 (UTC)

Discussion

Seems to me a bit like http://www.flickr.com but this seems a bit fishy to me:

personal + contact information
we need these to filter out abusive users and fake content. your data will be held confidentially.

What is their confidence policy? One person has access to my data or everyone knows? Otherwise OK I like it. --Paddy 15:30, 20 Feb 2005 (UTC)

2.) Selling and redistribution of these photos (individually, or as a whole) without written permission is
prohibited. Using the photos in website templates, on postcards, mugs etc. doesn't count as selling or
redistribution, however you are not allowed to build a gallery using the photos you downloaded from here.

OK that is it these Fotos are NOT free! --Paddy 06:21, 21 Feb 2005 (UTC)

This is not the point, the point is that this provision is void since prohibiting such way of selling and redistributing belongs to the copyright holder, i.e. the photographer, unless he has transferred it to its publisher, which is not even claimed here by Stock.xchng. Hence my offer to merelery ignore this illegitimate prohibition. villy 08:41, 21 Feb 2005 (UTC)
I agree with villy. We should not be intimidated by what appear to be unenforceable third-party claims. As I see it, there are two possibilities:
  1. The photographer is the copyright holder. SXC is merely given a license to publish the images. All license terms are set by the photographer. We can use the images if we have a license from the photographer and can disregard anything SXC as a third party has to say.
  2. SXC is the copyright holder, i.e., the photographer transfers copyright by uploading images to SXC. In that case, the photographer is not in a position to issue a license at all. Still, it could be that SXC simply respects the wishes of the photographer, so a statement like "credit me" should be interpreted as "SXC grants you a license to use these images subject to the SXC terms of use and provided that the photographer is credited".
I'm inclined to think that the first theory is correct. However, I don't think this can be resolved through a vote, only by obtaining an expert legal opinion. We can vote all we want, if it turns out that the legal situation is different from what we thought, the votes won't matter. We need to be clear on the legal situation first. --MarkSweep 11:30, 21 Feb 2005 (UTC)
I'm somewhat a legal expert Mark (see villy on Foundation) and you can ask Michael Snow on w:en. That's about you'll have right now I'm afraid. And it's never useless to put an end to and undermining issue ... villy 12:24, 21 Feb 2005 (UTC)
Ok, then let's follow your opinion. For what it's worth (IANAL), I agree with your analysis, which is why I voted No on the second question. --MarkSweep 15:22, 21 Feb 2005 (UTC)
Please correct me If I am wrong, but the terms are IMO enforceable. Not because of Copyright, but if you create an account on Stock.xchng (and you need to do it to be able to download Images) you sign their Terms of Use. By sign the Rules you make a contract with Stock.xchng, you accept the Rules and granted access to the full size pictures. If you then download the images and ignore the terms of use you break this contract. The Prob is that its not an issue of copyright, but of access. Stock.xchang don't have the copyright, but offers the possibility to download only under cerain terms. -guety 17:04, 21 Feb 2005 (UTC)
Right, but the terms have nothing to do with the Commons. As a stock.xchng user, I have agreed to, for example, not use the images "to defame or victimise other people". And I don't do that. If others get the image from the Commons and use it for defamation, that's fine, since they never agreed to stock.xchng's download conditions. And there's nothing about agreeing to enforce the terms on other people. That is, the download agreement doesn't translate to a copyright license. Dbenbenn 17:02, 24 Feb 2005 (UTC)

I agree fully with guety. We may ask the authors to upload some of their images. However we may not download them from Stock.xchng and upload them here. Sounds verry silly. But a contract is a contract. If it is enforceble is completly different question. And I suppose this varies from country to country. --Paddy 19:11, 21 Feb 2005 (UTC)

The provisions of an agreement have to be related to one's legitimate rights or they're void and unenforceable, no matter you accepted them. As I said, Stock.xchng is legitimate to prevent unauthorized attempts of mirror sites and is wrong when trying to arrange or regulate a copyright regarding which it is a third-party. Even if you accepted the terms of use, you are not supposed to break the law, even the copyright law. And what if the terms of use imposed you send a defamatory libel to the photographer before using the picture, would you prevent yourself from downloading because of this provision that you wouldn't want to respect or would you sign on anyway since nobody can oblige you to act illegally ? It would have been a different matter if the uploaders had to accept that their work will not be sold nor redistributed. But it's not the case,to the contrary, uploaders <quote>" automatically assumed to grant license for the use of said images to any and all visitors to this website with the restrictions you specify at each photo"</quote>  :) villy 21:19, 21 Feb 2005 (UTC)
Please address the possible applicability of a compilation copyright or a database copyright. Jamesday 00:51, 7 Mar 2005 (UTC)
No user here may use any picture you have uploaded without my permission. Jamesday 00:51, 7 Mar 2005 (UTC)
Are you laughing yet?:) The problem is that I have no right to make that condition, which is what is happening in this case also - the claim isn't valid because there is no legal basis for it. Sadly, it's quite common for people to make bogus claims. Similarly, Commons can't say that nobody can use a PD image from Commons without following the GFDL, because Commons isn't the copyright holder and has legal basis to make that restriction.
There is one problem on Commons though - people are copying images to Commons which have been uploaded and licensed to en.wikipedia.org with a GFDL tag requiring incorporation of the en Wikipedia disclaimer at the time of upload (incorporated by reference at that time) and Commons isn't including that old en disclaimer version with the images. That breaches the GFDL license granted by the uploader, so it's a copyright infringment. It also requires all users of the image on en to include that en disclaimer at the time of upload, not just the GFDL and gets in teh way of other reusers as well as Commons. Jamesday 00:51, 7 Mar 2005 (UTC)

Since the copyright holder has not assigned their copyright to stock.xchng, any copyright issues are solely between the copyright holder and the user. No matter what they try and claim, stock.xchng is not a party to this.

Thus, the terms of use is a contract between the downloading user and stock.xchng only. Note that contracts can claim all kinds of things that they can't actually legally enforce. I also note that if I take a photo from stock.xchng and place it in Commons, Commons is legally in the clear, as is anyone else who uses that image. No contract exists between them and stock.xchng. The only person stock.xchng can legally go after is me. This is not a copyright law issue.

Database copyrights / database rights only apply to the duplication of the entire content or substantial look-alike chunks, so I think the individual who is worrying about Germany's database rights law is wrong. Just as such laws do not prevent you from copying individual facts from the database, so they do not prevent us from copying individual images.

So, my reading of the law is: if an image which says it's free on stock.xchng is copied to Commons, Commons and reusers of Commons are completely and utterly legally in the clear. Depending on one's reading of the law, it's possible that the uploader - but nobody else - may be in breach of their stock.xchng contract.

However, the chances of stock.xchng actually giving a damn are slim to none. What they're worried about is (1) someone mirroring their site, and (2) making sure they say they disapprove of certain uses that might be bad publicity. Morven 06:25, 23 Feb 2005 (UTC)

Well, what I've got in mind is the uploader! In my Opinion the uploader is the first who can be sued. If someone upload something by accident or just because he/she doesent know I put it on RFD to protect them from getting made liable. -guety 02:33, 26 Feb 2005 (UTC)
Please refrain from protecting me, at least. Dbenbenn 20:51, 27 Feb 2005 (UTC)

Question

I would have a big problem registering at SXC. They require a lot of private information that I would not like to give them even though I would like to have some of the images. Who would register their personal information on their site? --Paddy 13:01, 26 Feb 2005 (UTC)

I did. If you ever want a high-resolution pic from that site (which requires logging in) just drop me a note at my talk page. Dbenbenn 20:51, 27 Feb 2005 (UTC)

Why are we voting?

Either we are allowed to use these images or we are not. The outcome of our vote doesn't affect this fact. Saying that if more than 50% of Wikipedians think the terms are unenforceable then they are, is somewhat absurd. We need to bring our issues up with SXC. If they are unresponsive or continue to claim their terms are enforceable, then we need to find someone who can tell us for certain if they are, unless someone here is a lawyer... ed g2stalk 18:14, 26 Feb 2005 (UTC)

Did you see villy's comment above? He is a lawyer. --MarkSweep 21:48, 26 Feb 2005 (UTC)
I wish Villy had made that clear before starting the vote. I think allowing discussion a bit longer would have been productive. See m:Polls are evil. Dbenbenn 20:56, 27 Feb 2005 (UTC)
Dbenbenn, I like m:Polls are evil. Like every page on Commons, this poll can be modified or even nullify :) So why did I post it? Because it seemed, to me, that as discussion was going (or not, by the way), a SXC copyright tag appeared. And User:Ed g2s sticked it on pictures here, therefore recommending or even asking for deletion. Even removing Image:Closeup_of_an_blue-green_human_eye.jpeg from FP page and deleting the photo. So, since the default policy regarding SXC pictures was about to be « shoot 'n delete at first sight » because of the view of a single individual, I thought it was about time to offer people an opportunity to decide differently on the basis of clear rationales. I'd be more than happy to discuss instead of vote if, in the meantime, we can get rid both of compulsive deletionnists or copyrigth paranoids and of this deceptive {{Stock.xchng}} tag. I'd have no problem with the community deciding to prohibit SCX material (I don't care that much on these pictures anyway) in the Commons as long as it is a collective consensus and not some ukase decided unilaterally by somebody and let it alive by pure inertia. I insist that this poll is totally unofficial, as to wikimedia foundation, and unrelated to my job, of course, or to voluntary positions I have in different wikimedia projects, including this one. This is just out of me as an irritated contributor :) villy 22:45, 27 Feb 2005 (UTC)

My actions were based on my, and others I had consulted on the matter, interpretation of the situation and also erring on the side of caution. I am perfectly willing to accept villy's statements as as a lawyer he probably does know better than I, and I suggest Commons:Stock.xchng images is rewritten accordingly. This probably affects the usage of images from htpp://www.pixelquelle.de which were deleted from the German Wikipedia. ed g2stalk 00:12, 2 Mar 2005 (UTC)