I’ve been reading up on Wikipedia’s copyright policies lately and found some interesting items tucked away in the Wikipedia copyright policy guidelines and copyright FAQ. This is not to criticize the people at Wikipedia as they are working to do something really unique and original with little in the way of financial backing. But as a cyberlawyer, I’m interested in some of the advice they post about copyright for potential contributors. I’d be interested in people’s reactions to the following.
1. In several places in Wikipedia’s copyright policies and FAQs, references are made to copyright holders voluntarily placing copyrighted works in the public domain. Does this make sense as a matter of copyright law? Is it technically possible to “place” something in the public domain? I would assume the connotation there is that copyright ceases to exist for something in the public domain. So wouldn’t the correct terminology be more like a copyright holder “waiving” its rights to enforce its copyrights, rather than “placing” the work in the public domain as if those rights didn’t exist anymore?
2. Wikipedia’s policy also says that it never takes copyright in works published on its pages. But it goes on to say that contributors can “never retract or alter” the required public use licenses granted by them for copies of materials placed on Wikipedia. Is it possible for a contributor to contract out of his/her ability to alter license terms? What if the copyright holder has transferred copyright to someone else? Would this license bind the successor in title? Also, would this policy amount to an enforceable contract between the contributor and Wikipedia? What is the consideration? And is there truly offer and acceptance and mutual understanding of terms, particularly if the contributors don’t read the copyright policy before posting material?
3. The policy also states that “the copyright status of Internet archives in the United States is unclear”. The policy then goes on to say that: “It is currently acceptable to link to internet archives such as the Wayback Machine, which host unmodified archived copies of webpages taken at various points in time.” Is there any law that would support this policy? I’m not aware of any.
4. The policy also states that: “It is not necessary to obtain the permission of a copyright holder before linking to copyrighted material, just as an author of a book does not need permission to cite someone else’s work in their bibliography.” I’m not sure that the analogy with a book citation in a bibliography is accurate/appropriate here. And I’m also not clear that the proposition that it is not necessary to obtain permission to link to copyrighted material accurately reflects the current law on this which I understand to be pretty unclear at the moment.
5. The copyright FAQ also contains the following paragraph trying to give an example of how fair use and derivative works operate in U.S. copyright law: “If you produce a derivative work based on fair use, your work is a fair use work. Even if you release your changes into the public domain, the original work and fair use of it remains and the net effect is fair use. To eliminate this you must make the use of the original so insubstantial that the portion used is insufficient to be covered by copyright.” I don’t understand the concept of “producing a derivative work based on fair use” and what the concept of “a fair use work” actually is. This is also another example of the notion of voluntarily releasing a copyrighted work into the public domain – see point 1 above.
I found these issues interesting as the guidelines attempt to help contributors on Wikipedia avoid copyright infringement. I’m just not sure that they give awfully useful guidance as to how the law actually works in many respects.
There is definitely an element of norm entrepreneurship in some of Wikipedia’s policies, a tactic I wholly support. I’m not quite sure what all your questions mean, though; some seem directed at policy (that is, what’s wise for Wikipedia to take on as risks for itself) and others at the state of the law, which Wikipedia of course can’t determine. Deciding not to use Internet Archive pages is conservative; telling people they can rely on fair use is not conservative. On the law, anyone who tells you that a link to where a work might be found could directly infringe a copyright right is a fool or a knave; it’s true that there’s an early case or two uncertain about that, but that’s because judges had no idea what the technology meant. Wikipedia’s analogy to citation is useful for a lay audience–linking isn’t copying any more than citing is–and I don’t understand your concern about the analogy.
Thanks for your comments, Rebecca. I guess I’m more concerned about Wikipedia taking unnecessary risks given that what it’s doing is obviously for the public good and I wouldn’t like to see them get caught in unnecessary litigation. I’m not sure why telling people to rely on fair use is not conservative given how narrowly some U.S. courts construe the fair use doctrine, although I agree that as a matter of principle more of us should be able to rely on fair use more of the time than some copyright-holders would like us to believe.
You may well be right about the analogy to book citations, although a bibliography is somewhat different in scope and purpose than an actual link – which is probably more like a footnote than a bibliography cite. But this difference may be de minimus in the sense you’re talking about ie to give some guidance to the lay person on what a link is really “like” in terms of what they’re familiar with in the real world.
Jacqui, interesting post. I think the linking question is just one of those issues that’s so obvious it’s unlikely to get litigated much. I used to hate those in practice. But I would feel pretty confident as a defendant in such a suit. However I would put a caveat in there for linking to infringing material, where I think there *is* a substantial risk of secondary liability. I suppose there are also theoretical issues dealing with website terms of use as a sort of license to the copyright owner’s own site but those cases all tend to involve robot crawlers; I keep telling my Internet Law class that I suspect those cases will come out differently if and when humans are involved.
I don’t understand the quote in 5 at all. Perhaps it’s some sort of garbled effort to talk about transformativeness.
Re: 2, I might not be following your concern. How is the language functionally any different from the traditional “perpetual, irrevocable, worldwide” license? I haven’t heard of any issue about the enforceability of those. I can’t say I’ve researched what happens when the copyright owner transfers their rights, but I assume the buyer takes pursuant to the restrictions, similar to an easement on real property. As for consideration, wouldn’t getting your nuggets of genius published on Wikipedia count? Fortunately for Wikipedia, I think it just has to be important to the parties, not objectively important.
Thanks for your comments, Bruce. I think my concern in point 2 relates to some work that several people have done about the extent to which copyrights are/should be treated like real property to the extent that it is possible/desirable as a matter of law to attach real-property like concepts (easements, restrictive covenants etc) to them. I’m think of work by people like Glen Robinson, Molly Van Houweling, and Mike Madison along these lines.
Ah, OK, it’s the fact that the perpetual irrevocable license is in a consumer form contract that’s the issue — now I see the problem.
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