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COMMONS DISCUSSION PAGES Commons Help desk Village pump (general discussion) Copyright Proposals Technical Graphics and photography discussion Photography critiques Image improvement Illustration workshop Map workshop Photography workshop Video and sound workshop Categories for discussion Undeletion requests Deletion requests Volunteer Response Team/Noticeboard Translators' noticeboard Work requests for bots Contact administrators Vandalism User problems (Dispute resolution) Blocks and protections Bureaucrats' noticeboard CheckUser requests Oversight requests Telegram IRC webchat Commons mailing list (archive) Commons' bugs on Phabricator Welcome to the Village pump This page is used for discussions of the operations, technical issues, and policies of Wikimedia Commons. Recent sections with no replies for 7 days and sections tagged with {{Section resolved|1=--~~~~}} may be archived; for old discussions, see the archives; the latest archive is Commons:Village pump/Archive/2024/11. Please note: If you want to ask why unfree/non-commercial material is not allowed at Wikimedia Commons or if you want to suggest that allowing it would be a good thing, please do not comment here. It is probably pointless. One of Wikimedia Commons’ core principles is: "Only free content is allowed." This is a basic rule of the place, as inherent as the NPOV requirement on all Wikipedias. Have you read our FAQ? For changing the name of a file, see Commons:File renaming. Any answers you receive here are not legal advice and the responder cannot be held liable for them. If you have legal questions, we can try to help but our answers cannot replace those of a qualified professional (i.e. a lawyer). Your question will be answered here; please check back regularly. Please do not leave your email address or other contact information, as this page is widely visible across the internet and you are liable to receive spam. Purposes which do not meet the scope of this page: Please do not make deletion requests here: use the relevant process for it instead. For technical support and graphics talks (PNG, SVG, GIF, etc.), please post on the Graphics village pump. To ask for image improvement, see: Graphic Lab/Photography workshop for photographs. Graphic Lab/Map workshop for maps. Graphic Lab/Illustration workshop for other illustrations. To ask for video or audio improvement, see Commons:Graphic Lab/Video and sound workshop. For translation requests, please post at Commons:Requests for translation. For media requests, please post at Commons:File requests. Search archives:     Start a new discussion

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Village pump and gaslight at a meeting place in the village of Amstetten, Germany. [add]

Centralized discussion See also: Village pump/Proposals   ■ Archive Costumed character files (14 October 2024) Third-party images published by the National Weather Service (26 August 2024) Commons:Requests for comment/Hosting of free fonts in Commons (18 July 2024) How do we organize categories by date (14 May 2024) Should PD-CQ Roll Call be used for recent images? (5 January 2024) Technical needs survey (17 December 2023) When does PDART apply to textile works? (15 November 2023) Does this image contain "love hearts"? (17 August 2023) Definition of country (19 June 2023) Overhaul of categories by period (5 December 2022) Version of Saudi flag to use (11 July 2022) Concern regarding revocability of KOGL licenses (22 December 2021) Should deleting content from your own talk page be forbidden? (11 November 2021) Revise the COM:FOP Sweden section (1 February 2021) Change technical name of LRs to license-reviewer from image-reviewer(2 November 2023) Was the closure of the deletion discussion concerning the current lede image for Philippe Pétain proper under Commons policy? (22 September 2024) Template: View   ■ Discuss    ■ Edit   ■ Watch

November 4

DMCA Take-Down

A group of 59 photographs (see list below) have been removed based on the receipt of a DMCA takedown notice made pursuant to the Digital Millennium Copyright Act, 17 U.S.C. 512 (the “DMCA”). The Wikimedia Foundation (“WMF”) takes alleged copyright infringement very seriously and carefully examines each takedown notice received and the image in question for compliance with U.S. copyright law. This images were of various publicly-installed sculptures around the world created by Claes Oldenburg and Coosje van Bruggen

Some of these sculptures are located in countries that recognize “freedom of panorama”, while others are not. Currently, U.S. copyright law does not recognize freedom of panorama for works of art, such as sculptures, and thus the copyright holder of a sculpture has the right to exclude others from publishing images of that sculpture, so long as it still enjoys copyright protection. While it is true that some of the sculptures in question here are located in countries whose copyright regime conflicts with the U.S’s regime, current U.S. conflict of law principles indicate that U.S. copyright law would apply in evaluating the scope of a copyright holder’s rights.

WMF strongly supports a change in U.S. copyright law that would extend freedom of panorama to artwork so that more people can experience beautiful and thought-provoking works of art that they would not otherwise be able to enjoy. However, WMF is a U.S.-based organization that must comply with U.S. laws as they presently exist, including U.S. copyright law, conflict of law principles, and the DMCA.

What Can I Do?

If you want to express your support for the extension of freedom of panorama to works of art (and you are a resident of the United States), you can write your U.S. senators and/or representative.

If you feel that a particular image does not infringe the alleged copyright holder’s rights, you can contest the takedown notice by submitting a “counter-notice” to us. Before doing so, you should understand your legal position and you may wish to consult with an attorney. If you submit a counter-notice, the alleged copyright holder can stop us from restoring the content by suing you. Please note that WMF will not be a party to any legal action that arises from you sending a counter-notice, and that WMF is unable to provide you with legal advice.

More information on DMCA compliance may also be found at:

• http://www.chillingeffects.org/dmca512/faq
• https://www.eff.org/issues/dmca
• http://www.copyright.gov/onlinesp/

Filing a Counter-Notice

If you choose to submit a counter-notice, you must send a letter to legal@wikimedia.org asking WMF to restore this image. The letter must comply with DMCA standards and must contain the following:

• A link to where the content was before we took it down;
• A statement, under penalty of perjury, that you believe the content was taken down mistakenly;
• Your name, address, and phone number;
• If your address is in the United States, a statement that says “I consent to the jurisdiction of the Federal District Court in the district where my address is located, and I will accept service of process from the person who complained about the content I posted”; or if your address is outside the United States, a statement that says “I agree to accept service of process in any jurisdiction where I can be found”; and finally,
• Your physical or electronic signature.

Pursuant to the DMCA, WMF must inform the alleged copyright holder that you sent us a counter-notice and give the alleged copyright holder a copy of the counter-notice. We will restore this image within ten (10) to fourteen (14) business days, provided that the alleged copyright holder does not give notice of suit to restrain re-posting of the material.

Involved images

Thank you. --Philippe Beaudette, Wikimedia Foundation (talk) 21:27, 9 November 2012 (UTC)

I agree with that reminder from the Foundation: "WMF strongly supports a change in U.S. copyright law that would extend freedom of panorama to artwork [...]. However, WMF is a U.S.-based organization that must comply with U.S. laws as they presently exist [....]." indeed, we may wish that the U.S. changes that point of the law, but as it is now, Commons should not tolerate those copyvios and wait for the trouble of receiving formal takedown notices forcing the Foundation to take action. Commons should automatically enforce its policy that works must be free in the U.S. to be hosted. Instead of hosting copyvios of sculptures, we should make better efforts to keep the legal photos of buildings that some users nominate for deletion. -- Asclepias (talk) 22:12, 9 November 2012 (UTC)

Are these files considered copyvios because the authors of the works are American citizens, or would it be the same regardless of their citizenship?

(Meaning, if the latter, that we would have to consider as copyvios eg sculptures by German artists installed in Germany and still enjoying copyright protection) Jean-Fred (talk) 22:40, 9 November 2012 (UTC)

I don't think that their citizenship makes any difference as to their rights under the Copyright Act. However, their living in the U.S. may have made them more attentive to the images published in the U.S. and made it somewhat easier for them to know how to take action. -- Asclepias (talk) 22:58, 9 November 2012 (UTC)

The conflict of law principles that arguably apply here do not base the applicability of U.S. law on the nationality of the authors of the work, but on the idea that the law of the nation where the alleged infringement has occurred is the proper law to apply. -- Michelle Paulson, Legal Counsel, Wikimedia Foundation

See also Commons:Lex loci protectionis. Rd232 (talk) 23:06, 9 November 2012 (UTC)

Thought so, but I rather wanted to make sure. Thanks for clarifying. Jean-Fred (talk) 23:12, 9 November 2012 (UTC)

Also, it's not like we weren't aware of the situation. It's brought up from time to time. But people seem to be stuck into some sort of wishful thinking with arguments like maybe the Foundation will find a legal loophole, maybe the Foundation will change its policy, maybe a miracle will occur. Well, it doesn't happen. Not only the Foundation did not change its policy but it has reaffirmed it a few times, at least in theory. However, the Foundation sometimes appears to display some passivity. It does tells that such images cannot be hosted but it does not seem to take actual enforcement very seriously. It deletes files once in a while when it gets a takedown notice. This attitude causes that the message from the Foundation to the community is not understood clearly and may be seen as ambiguous by some users. This ambiguity is not healthy. The Foundation should state very clearly what it expects the community to actually do. It should state that the policy must be enforced and that it expects the community to actually delete the infringing files without waiting for takedown notices and suits, or it should state that infringing files may be tolerated as long as the copyright owners don't send takedown notice or sue. And if the latter, to what point such tolerance may extend. -- Asclepias (talk) 02:51, 10 November 2012 (UTC)

Well, maybe you were, but as for me, although I was aware of such a school of thought on FoP & the concept of Lex loci protectionis (though I did not know it was called as such), I certainly did not know the case was as clear cut as you make it sound. I have the weakness of believing that Commons policies on copyright matters are based on a bit more than merely wishful thinking − and more than that, the weakness to believe the Wikimedia Foundation would never let the Wikimedia Commons community go astray and implement policies allowing blatantly illegal files. I guess these are two things I should not have much faith in from now on (well, then again, it was Wikimedia Foundation “legal advice” that led us to the infamous COSTUME mess with its Kept per Mike Godwin deletion requests…).

I could not agree more with you on wishing a clear statement from the Wikimedia Foundation on such issues.

Jean-Fred (talk) 23:29, 10 November 2012 (UTC)

I understand what you say. Some years ago, I saw that Commons had photos of sculptures, and that left me with the same first impression as yours, to the effect that they seemed to be allowed, and so until 2010 I have uploaded a few photos of Canadian sculptures. Then I realized that the files were tolerated in wait of a general cleanup that might come eventually. I stopped uploading photos of sculptures. A discussion from circa early 2007 went somewhat like this: "-Something should be done about that problem with derivatives of so-called FoP sculptures. -Can we find a trick to keep them? -The law and our policy do not allow them. -Right. But wait, the Foundation is drafting a licensing policy. Let's postpone the cleanup for a few months and see if it comes up with some unexpected idea that might change something. -Okay, let's postpone for some time." In March, 2007, the Foundation affirmed its policy. In the meantime, the cleanup discussion on Commons seems to have been forgotten in limbo. Forward to 2012 discussions: "-We still have that problem with those derivatives and the licensing policy of the Foundation did not allow them. -Right. But wait, can we postpone until the new legal team of the Foundation looks at it again? Maybe they will come up with some unexpected new idea. -Okay, let's postpone the discussion." November 2012: "-We still have that problem with those derivatives and the legal team of the Foundation confirms again that such files can't be kept. -Right. But wait, maybe the Foundation, and its legal team and the whole legal community were all wrong when they believed for centuries that U.S. laws apply in the U.S. Maybe one day a U.S. judge will miraculously decide, against all established principles, to rebel and ignore the U.S. laws. Let's postpone the cleanup." Forward to 2038: "-Guys... derivatives... And now we've lost all the 371 suits that we fought over this issue and we're seriously in debt. We owe 3879056098 yuans. Will we finally do something about it? -Right. But wait, maybe they're all wrong! Can we postpone the cleanup until the president of the Galactic Court comes personally knock at my door and tell me that the files really, really, really can't be kept?"  ;-)

Don't get me wrong. If I wrote the laws, I would provide a FoP clause. I believe there should be one. But we should accept the fact that we are not the U.S. Congress. If the case sounds clear cut, it is because the law, as it exists, is clear cut: sculptures are protected by copyright and there is no FoP exception for images of them, and the advice of the legal team, whose job it is to advise the Foundation on such things, tells so. -- Asclepias (talk) 18:50, 11 November 2012 (UTC)

Thanks for the historic perspective, but I am unsure about the purpose of your conclusion: I do not really question the law, nor your/the WMF interpretation of it, nor your secret wishes on copyright law. I was merely stating my disagreement with your “Come on folks, everybody in the community knew these were copyvios!”. I for one did not (even though I have been serving as a sysop for nearly 3 years) and I can assure you it was not out of a blinkered attitude: I simply saw no reason to question our policies on this specific subject (no, I do not really wish I took part in every FoP discussion which may have occured during the last 5 years). Jean-Fred (talk) 23:43, 11 November 2012 (UTC)

I think, we should talk about an Revolution and bring down this WMF dictatorship. Unbeleavable, what happens here. And thanks, that we should write so our Senator. This will help us Germans. And once again the WMF ignore the fact, that it's alowed in Germany to take these pictures! This is called Panoramafreiheit. But once more, the Foundation only thinks in an US-american. Way. And I'm at the beginning: talking 'bout a Revolution! Marcus Cyron (talk) 22:54, 9 November 2012 (UTC)

@Marcus, mind your language and refrain from cheap WMF-bashing, please! Despite of your WP-age you still seem not to have realized that 1) the WMF is an U.S.-located organization and thereby clearly bound to US law, and 2) the WMF mains servers are located in the US. If you had actually read Philippe's third sentence, you would know that he and the WMF are well aware of the fact that some of the original works are installed in FOP-countries. The DMCA procedure per U.S.-law has advantages for the infringing hoster as well as for the rights holder, but has also the disadvantage that it does not allow for a thorough discussion as the infringer has to act swiftly to remain exempt from liabilities. --Túrelio (talk) 08:55, 10 November 2012 (UTC)

We have long established that media must not violate the copyright law of either the source country or the USA. Everyone agrees that some of these pics would be fine if published in Germany, but that's not where the server is. --99of9 (talk) 23:03, 9 November 2012 (UTC)

Like it or not, the WMF is a US organisation, and doesn't get to pick and choose which US laws to apply. Oddly enough, this is not any different than if the WMF was a German organisation - it wouldn't get to pick and choose which German laws to apply either... This has been discussed before, and the attempt to come up with solutions (Commons:Requests for comment/Commons Abroad and related ideas) hasn't gone anywhere. Rd232 (talk) 23:05, 9 November 2012 (UTC)

Don't foreign works obtain copyright protection in the US only through international treaty that causes the foreign coypright to be recognised? If there is no foreign right, e.g., because it's waived through FoP, then there's no reason to expect that right to be created when the work is imported to the US. Hoever the situation may be different with a scultpure that is first "published" in the US, and then exported elsewhere. ghouston (talk) 00:14, 10 November 2012 (UTC)

FoP isn't a waiving of copyright, it's a limitation on what constitutes infringement of it. A better question would be: if something is not copyrightable in country X but is copyrightable in country Y, can the copyright be enforced in Y (assuming copyright relations exist, which they usually do now)? Per en:lex loci protectionis, probably yes, because under international law Y normally can't give foreign works fewer rights than domestic ones. The only doubt is because this choice of law rule is not entirely consistently applied. Rd232 (talk) 00:27, 10 November 2012 (UTC)

OK, I see after reading Commons:Lex_loci_protectionis that it's not so simple - copyright law is just a mess. ghouston (talk) 00:23, 10 November 2012 (UTC)

copyright law is just a mess - quite (at least when there are international dimensions to an issue). I find that "it's probably worse (more complicated) than you think" covers most situations! :( Rd232 (talk) 00:35, 10 November 2012 (UTC)

.oO( A copyright holder, who does not want his works be published in wikipedia possibly is also no more interested to have any other related images or an article of himself. No more relevance...) -- Smial (talk) 23:30, 9 November 2012 (UTC)

Since the question of choice of law with regard to freedom of panorama cases is unsettled, current practice on Commons is to retain photos based on the more lenient of the country in which the object is situated and the country in which the photo is taken.

Commons:FoP#Choice_of_law

It is nice that the rules in commons say something other than the WMF and we encourage people to upload pictures at the WLM-contest to commons where they will be deleted because the WMF is not able to repel a wrong DCMA-notice. --DaB. (talk) 00:11, 10 November 2012 (UTC)

Those are the existing Commons guidelines. In view of WMF response to this DMCA, we might want to change them. Rd232 (talk) 00:21, 10 November 2012 (UTC)

Or start hosting servers in other countries? I'm curious to know if the reverse situation would apply. If I took a photo of a sculpture in the USA, then published it on a server in Germany, does German FoP prevent any claims of infringement? ghouston (talk) 00:39, 10 November 2012 (UTC)

hosting elsewhere is a can of worms, but it's been discussed (eg Commons:Requests for comment/Commons Abroad and related ideas). To your hypothetical: the Hundertwasser decision (first example in the Examples section at Commons:Lex loci protectionis) suggests the answer is yes. But it's hard to be sure. Rd232 (talk) 00:46, 10 November 2012 (UTC)

On the plus side, the US gives FoP of buildings, so perhaps all those deletions of photos of buildings in France, Russia, etc., can stop? ghouston (talk) 01:19, 10 November 2012 (UTC)

Indeed. Actually, that should be a priority. -- Asclepias (talk) 02:01, 10 November 2012 (UTC)

No, you're confusing US law with Commons policy. Maybe those photos of buildings outside the US are not copyright violations when published in the US (it's not certain, but there's a logic there), but they are copyright violations when published in the source country, and COM:L requires media to be free in both the US and the source country. Rd232 (talk) 12:04, 10 November 2012 (UTC)

These works can be uploaded to projects like English Wikipedia right now that accept any work that is public domain in the US. If other projects wish to do the same, and develop a consensus to do so, they may do so as well, all they have to do is enable local uploading. They don't even need an exemption doctrine for this type of work, just a policy. Dcoetzee (talk) 12:07, 10 November 2012 (UTC)

Yes, but that's going in a weird direction. COM:L has the "free in source country" idea fundamentally, AFAIK, to ensure that Wikimedia projects using the file can be freely distributed in the country most likely to be using the file (or some logic in this direction). If we're going to encourage projects to circumvent that, we might be better off re-assessing the Commons policy. Rd232 (talk) 13:09, 10 November 2012 (UTC)

Surely you're free to publish your photo in Germany if it complies with the copyright law of Germany. That's exactly the point of the internationally agreed principle of the lex loci protectionis. You may have to check if there's not some little-known bilateral treaty that forbids it, but if not, then you can legally publish that photo in a newspaper in Frankfurt and on a web server in Berlin. The only thing is, you can't distribute that Frankfurter newspaper in some countries, where that photo of that U.S. sculpture is not free, for example in France. When it comes to applying that principle to websites, it may still be a bit fuzzy, but the current judicial trend in the recent years, in some countries, is that, for example, you might get into some trouble in France with the sculptor (assuming the sculptor of the U.S. scuplture decides to sue you in France) if the content of your Berliner website is mostly written in French and if that website targets specially and obviously the audience of the citizens who live in France. If your German website does not target specifically the audience of France, the scupltor might just ask that the service providers in France block the access of their subscribers in France to your webpage containing the photo. But we digress. The fact is that the Wikimedia servers (the content-hosting servers, at least) are situated in the U.S., and images of copyrighted sculptures can't be freely published in the U.S.. Having Wikimedia servers in another country instead of in the U.S. would only displace the problem, as you would have to live with other types of peculiarities and inconvenients of the copyright law of that other country. -- Asclepias (talk) 02:01, 10 November 2012 (UTC)

Another joke is that the WMF spared pictures of the english wikipedia (example: w:File:Typewriter-eraser.JPG because they claim to be fairUse – a great service in the idea of "free content": just mark it a "unfree" and you can keep it. --DaB. (talk) 00:32, 10 November 2012 (UTC)

It's not a joke - "fair use" is an important part of US copyright law and English Wikipedia makes use of it (generally, much more strictly than the law requires). German Wikipedia chooses not to allow fair use, but could if they wanted (see wmf:Resolution:Licensing policy). (I think German WP doesn't use "fair use" because Germany doesn't have "fair use". I've suggested it could use "fair use" to allow it to host files that are free in Germany but copyrighted in the US, but no-one seemed to like the idea.) Rd232 (talk) 00:38, 10 November 2012 (UTC)

it is interesting that they challenged "PD no notice" image, but not the "fair use" image of the same work, i.e. w:Clothespin (Oldenburg). the clothespin was a mistake on my part, but the eraser is after 1978, so requires "fair use" in the u.s. the WMF is merely responding to the "joke" copyright law. this will require a culture change: the FUD copyfraud can not continue forever. Slowking4⇔ †@1₭ 22:49, 12 November 2012 (UTC)

Counter-notice?

Argh, horrible! This is one of those cases where I feel that it would have been better to try to have this thing settled in a court once and for all so that we can tell if Commons policy is wrong or not. If the policy is wrong, then this is going to lead to the deletion of lots of images... --Stefan4 (talk) 01:14, 10 November 2012 (UTC)

You mean if the policy is right and if we apply it. The policy is still that one necessary condition for files to be hosted is that they must be free in the U.S. -- Asclepias (talk) 02:01, 10 November 2012 (UTC)

Yes, but the question is whether these photos are free in the United States or not. --Stefan4 (talk) 02:25, 10 November 2012 (UTC)

This can still be done. A counter-notice needs to be filled. I did this for files deleted on French Wikisource after a DMCA from the French publisher Gallimard. Actually I expected Gallimard to sue me, but nothing happened. The files are still in Wikisource. Yann (talk) 07:22, 10 November 2012 (UTC)

Nobody knows for sure, since as far as I'm aware, there's really no U.S. precedent for it. The U.S. will use foreign law to determine the copyright owner, but U.S. law to determine infringement and penalties, per a couple cases (one of them involving TASS if memory serves). The FoP situation is an additional wrinkle which hasn't been tested. It's entirely possible that courts would rule along the lines of that one Germany cross-border FoP case -- the sculptor owns the copyright of the statue, and while the photograph is not deemed a derivative work in the country where the statue is located, it is in the U.S., and thus there is possible infringement based on how the photograph is used. Or, it may be judges take into account that the photographer expected to fully own the photograph in the source country, using foreign law to determine that the copyright owner of the photograph is entirely the photographers, or that the FoP situation alters the fair use calculation, or other possibilities. It sounds like the WMF has decided not to risk that -- which is entirely reasonable. The question is whether we should delete all such works... that could be a community decision. For several years, we allowed URAA-restored works here while the case was pending before the Supreme Court, despite the fact that the only challenged portion of the URAA wouldn't have affected Commons anyways, so there was next to no chance that those works would be considered "free". We kept them based on that very small uncertainty, while noting the issue and allowing authors to file DMCA notices, and being aware we'd probably have to delete if such notices were filed. The uncertainty here is much greater than the URAA status was while we were keeping all those files, but in reality we'll still probably have to be more circumspect if DMCA notices are filed -- there is no clear-cut ruling to base a defense on. But there is also no clear-cut ruling to base deletions on. Carl Lindberg (talk) 07:51, 10 November 2012 (UTC)

• Fantastic summary of the issues thanks Carl, it's great to have you here! --99of9 (talk) 08:52, 10 November 2012 (UTC)

Yes, it cannot be known for sure before an actual court case take place. Yann (talk) 09:17, 10 November 2012 (UTC)

•  Question It is my understanding that the artists are US citizens and/or residents (one of them deceased). This means that COM:URAA doesn't apply at all to these works. Essentially, this means, according to another Commons policy, that artworks erected before 1978 have to have a visible copyright notice in order to be copyrighted in the United States, regardless of whether the works are located in the United States or not. Some of these works were erected before 1978. Do all of the pre-1978 artworks in Europe carry a visible copyright notice? I've never seen a public artwork with a copyright notice anywhere in Europe. Are they also disputing the policy on how we define publication? --Stefan4 (talk) 02:25, 10 November 2012 (UTC)
  • (i) nationality is irrelevant for URAA - see Commons:URAA#Tests. (ii) the URAA means a copyright notice wasn't necessary for foreign works, as long as they were still in copyright in the source country on the URAA date. Rd232 (talk) 12:00, 10 November 2012 (UTC)
    • As far as I know, if a work was:
      1. First published in country X, or
      2. Made by a citizen of country X,

then country X regards country X as the source country of the work (but other countries may define other source countries). This is at least true within the European Union (meaning e.g. that the rule of the shorter term doesn't apply to a work by a British citizen which was first published in Japan), and I thought that this was the case also in the United States. COM:HIRTLE is silent on the matter: it says that the rules for US works apply to "Works Registered or First Published in the U.S." and that the rules for non-US works apply to "Works First Published Outside the U.S. by Foreign Nationals or U.S. Citizens Living Abroad". In this case, we are talking about works first published abroad by US citizens living in the US. That's not covered by any of the sections as it is written now. Probably an error, but we need to figure out if we should use the US table or the non-US table for such works. --Stefan4 (talk) 12:47, 10 November 2012 (UTC)

The general definition for Berne Convention countries is described at en:Berne_Convention#Country_of_origin, and it relies on nationality for unpublished works and works first published in a non-Berne country - otherwise it's country of first publication. So I'm not sure nationality ever matters for URAA issues, but if it does, it must be quite rare. Rd232 (talk) 12:56, 10 November 2012 (UTC)

• • • Nationality is not irrelevant for the URAA; as the US Copyright Office puts it, in s:Highlights_of_Copyright_Amendments_Contained_in_the_URAA, "To be eligible, the work must meet all the following requirements: (1) At the time the work was created, at least one author (or rightholder in the case of a sound recording) must have been a national or domiciliary of an eligible country. An eligible country is a country, other than the United States, that is a member of the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), is a member of the World Trade Organization (WTO), or is subject to a presidential proclamation that extends restored copyright protection to that country on the basis of reciprocal treatment to the works of U.S. nationals or domiciliaries;" (emphasis mine). So if we can establish that they did not follow US copyright rules, and that all of the authors were nationals and domicilaries of the US, then we can argue the underlying works didn't have their copyrights restored by the URAA.--Prosfilaes (talk) 22:05, 10 November 2012 (UTC)
      • Aaahaaa, I knew that and I'd forgotten :( Tweaked Commons:URAA-restored_copyrights#Exceptions for clarity, since I did look there before commenting here. Rd232 (talk) 22:22, 10 November 2012 (UTC)

• I believe the WMF's legal interpretation is valid, and as such will not seek to issue a counter-notification. Moreover, I believe this implies that all images of sculptures that are not in the public domain must be removed from Commons, and reuploaded to a foreign repository such as Wikilivres, and COM:FOP must be updated accordingly. User:Commons fair use upload bot can also help reupload them to local projects which allow fair use. Needless to say, this would be an enormous and highly controversial undertaking. If anyone does wish to seriously contest the WMF's legal opinion, please do file a DMCA counter-notification with them using Chilling Effects' counter-notification generator. Dcoetzee (talk) 05:29, 10 November 2012 (UTC)
  • I don't think the community will support mass-deletion without a clear legal precedent. WMF's opinion in this DMCA case is significant, but probably not enough, for most people, to justify pre-emptive mass deletion. One thing we could do, at least, would be to create an explanatory/warning template to tag affected files with. Rd232 (talk) 12:08, 10 November 2012 (UTC)
    • I think this is like the URAA before the Supreme Court ruling - only delete following takedowns, but ensure affected works are tagged with the appropriate FoP templates. We suspect that the courts will find against what we want, but have no proof that they will. In this case its a US sculptor claiming US copyright over a work, would a non-US sculptor be able to claim US copyright in the same way?

      With regards to moving content to another site, we should be doing that anyway and pre-emptively. eg Move to Wikilivres, or wherever, all FoP-tagged works ASAP instead of waiting for takedowns. One thing we should not do is wait until after the DMCA takedown is processed and file deleted. If we then use admin rights to access the deleted file, then WMF hasn't prevented us from accessing the file, and so might be failing to comply with the Safe Harbor rules. Such behaviour from admins might compel WMF to oversight, not just delete, the files.--Nilfanion (talk) 12:48, 10 November 2012 (UTC)

      • would a non-US sculptor be able to claim US copyright in the same way? - yes. Does WMF need to oversight DMCA-affected files? Interesting question. Deletion does remove from general public access, but it leaves the file available to several hundred admins. Rd232 (talk) 13:03, 10 November 2012 (UTC)
• As I understand it, the DMCA notice not only claims that the two sculptors hold copyright over these photos, but also that their use here is not authorised by the law. If anyone has a good faith belief that the use here of these photos represents a fair use under US law, they would be able to file a counter-notice. It isn't necessary that it meets the requirements of any Wikimedia project's Exemption Doctrine Policy (EDP), only that US law allows it. If any of the photos was used in a Wikipedia article, it seems to me that their hosting here could well qualify legally as fair use. But IANAL. --Avenue (talk) 13:33, 10 November 2012 (UTC)
  • the two sculptors hold copyright over these photos - technically no, it's that the photos violate the sculptors' copyright in the objects photographed. As to fair use - I see what you're getting at, but since Commons doesn't allow fair use, I don't see that happening. Rd232 (talk) 13:46, 10 November 2012 (UTC)

• I didn't say that "the two sculptors hold copyright over these photos". I said that I think the DMCA notice claims this. If I'm right (that they've claimed this), and you're right (that this claim is incorrect), this may constitute a mistake in the notice that would provide even further ground for filing a counter-notice.

I'll go through my logic about what they seem to have claimed. In the first sentence of their notice, they define the "copyrighted work at issue" as "the text [sic] that appears on the Wikimedia Commons website (http://commons.wikimedia.org)". I presume that by "the text" they mean the photos.

The next sentence begins "The URLs where our copyrighted material is located include" followed by a list of sculptures and the URLs on Commons where photos of them were available.

In the penultimate sentence of their notice, they assert a good faith belief that "use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, [...]".

From their wording, I understand they are claiming at least a good faith belief that the sculptors own a copyright over the photos at the listed URLs. I think you're right (that technically this belief is incorrect), but IANAL. --Avenue (talk) 22:31, 10 November 2012 (UTC)

OIC. Well having now read the DMCA takedown notice - no, even with the English a bit mangled by squeezing it into a standard letter, they're not saying that. The "copyrighted materials described above" refers to the sculptures listed, which are "used" in the photographs. This use is not authorised and is claimed to be an infringement. Rd232 (talk) 22:57, 10 November 2012 (UTC)

Well, I'd agree that's what they should have said. I guess we disagree about what they actually did say. --Avenue (talk) 23:24, 10 November 2012 (UTC)

• • • Well, if the use of the files by WMF qualifies for fair use under United States copyright law, then that would help as a defence in a US court. What we want is to have a court ruling on international FOP so that we know the correct legal situation, and fair use could help as a way to protect the uploader if FOP arguments fail, although we would of course not want to keep the images if fair use is the only thing making such use legal in the United States. --Stefan4 (talk) 14:48, 10 November 2012 (UTC)
    • The "doesn't allow fair use" thing is policy, but if it comes to an actual court case, that would be one line of defense (and not the only one). It's a lot less clear-cut than say a use on Wikipedia, since the possible uses here are broader and we have tags that say "hey anybody can use this file" but yes our actual use is primarily educational (and the photo is certainly free to use in many countries around the world). It may more easily qualify for fair use if we note on a tag the uncertainty of the U.S. situation, thus warning potential U.S. users -- maybe the FoP tags should distinguish between sculpture or buildings so we can put up a better U.S. warning. But it's still a pretty muddy situation. Everyone would like a clear-cut ruling, but usually not at their own expense :-) Carl Lindberg (talk) 15:01, 10 November 2012 (UTC)

First, I'd like to say that WMF didn't have a choice here. And I'd like to thank Philippe for the information sent here, and Michelle for her detailed explanation regarding sending a counter-notice. That's much better than the Gallimard case I was involved. So communication is improving, at least. ;o)

I would not hesitate to send a counter-notice if there is a fair possibility to gain something vs. the risk of a court case: either the stake is huge, and even a little chance of winning and a lot of publicity make it worth the try; or risk is low whatever the potential gain. In the Gallimard case, it would have create a lot of bad PR for them even if Gallimard would have won, as their claim was more FUD than anything else. I don't know this artist, so I can't say what is at stake. Yann (talk) 15:43, 10 November 2012 (UTC)

Thanks for your kind words, Yann. Philippe Beaudette, Wikimedia Foundation (talk) 21:23, 10 November 2012 (UTC)

I agree with Yann about the WMF's actions here. However, without wanting to seem unkind, I think the notifications to uploaders could be improved in one significant respect. I understand (e.g. from point 7 here) that the WMF is legally required under the DMCA to ban "repeat infringers" from their site, and that failing to file a counter-notice means that an incident counts against you regardless of the real legal merits (or otherwise) of the case. If this is correct, I think the notification to uploaders should mention this potential consequence of not contesting the notice. --Avenue (talk) 23:17, 10 November 2012 (UTC)

Thanks for the suggestion, Avenue, I'll bring it up with the team. Philippe Beaudette, Wikimedia Foundation (talk) 00:20, 11 November 2012 (UTC)

DMCA "requires that service providers 'adopt and reasonably implement' a repeat infringer policy that provides for termination of users' accounts 'in appropriate circumstances.' Definition of "repeat infringer" is not established in law. See http://www.chillingeffects.org/weather.cgi?WeatherID=605 and https://www.eff.org/deeplinks/2011/01/dmca-copyright-policies-staying-safe-harbors-while. Perhaps more worrying is that if a court found WMF didn't have/follow such a policy, they'd then be liable for users' infringements... Rd232 (talk) 21:51, 14 November 2012 (UTC)

 Comment an email exchange between a German WP user and the WMF was posted to German WP here (surely with their permission, I assume). Although the diff includes German, the email exchange itself is in English. Rd232 (talk) 05:02, 15 November 2012 (UTC)

Do dispel any doubt, that conversation was absolutely okay to post - she asked permission first and it was granted. :) Philippe Beaudette, Wikimedia Foundation (talk) 01:55, 17 November 2012 (UTC)

Threshold of originality

There doesn't seem to have been any consideration of whether all of these sculptures are actually copyrightable under U.S. law, which excludes simple geometric shapes. The "Pool Balls" installation, for example, seems to be just spheres. Postdlf (talk) 06:11, 10 November 2012 (UTC)

I don't think the concept of a threshold of originality (I guess that is what you mean) extends to fine art. --Rosenzweig τ 07:10, 10 November 2012 (UTC)

There is no concept of "fine art" or extra protection gievn to it in U.S. copyright law. Either a work is creative or it isn't, regardless of whether it's a hobbyist's birdhouse or a world-renowned sculptor's public installation. Basic geometric forms fail that threshold of creativity. Postdlf (talk) 16:54, 10 November 2012 (UTC)

There is some precedent for this. Consider Commons:Undeletion_requests/Archive/2009-12#File:Untitled_by_Daniel_Buren.png and again at Commons:Undeletion_requests/Archive/2010-08#File:Untitled_by_Daniel_Buren.png in which a painting consisting of some green and white rectangles was undeleted (twice!) on the basis that threshold of originality applies in the US. Dcoetzee (talk) 08:20, 10 November 2012 (UTC)

Not entirely sure about the US, but I still don't think the corresponding German concept of de:Schöpfungshöhe is really applicable to fine art. At least the threshold is very very low in such cases (as opposed to applied art like logos, where the threshold is considerably higher). Since the pool balls image cited is of a sculpture/installation on display in Germany, that may be relevant here. --Rosenzweig τ 08:40, 10 November 2012 (UTC)

I've heard all sort of conflicting information about ToO in the US, so I would be interested in any kind of analysis on the subject. FWIW, French copyright is granted regardless of form and merit, the only citerion being originality. This has led to faucets and boxer briefs being copyrighted. Conversely, most legal writings doubt that copyright can be granted to conceptual art, monochromes or readymades for instance. There's little case law in the matter though. Jastrow (Λέγετε) 11:26, 10 November 2012 (UTC)

I haven't seen a thorough treatment, but if you haven't, read over Threshold_of_originality#United_States and see examples at Commons:TOO#United_States. If FOP protects use of the photo in the source country, and TOO makes the original work PD in the US, I think together those satisfy the necessary conditions to retain it. Dcoetzee (talk) 12:11, 10 November 2012 (UTC)

Yeah, that's my thinking too. Postdlf (talk) 16:54, 10 November 2012 (UTC)

Threshold issues could apply... the pool balls one in particular seems quite dubious. For the U.S., it is indeed only the creative expression actually present which is judged. For example, the Copyright Office denied the copyright registration of the orange cloth-colored Reichstag by Christo and Jean-Claude (while that *was* granted copyright protection in Germany I believe, and was not a permanent work). Aesthetic merit does not matter -- a child's scribble can be copyrightable, but neither should it matter if something is on display in a museum, if it does not have the requisite amount of expression (which is low, but there is a threshold). Also, utilitarian objects are generally not copyrightable (elements of them can be, if they can be conceptually separated from the utilitarian purpose, like a drawing on the surface). The pool balls... are three spheres from the looks of it. While the U.S. does have a "selection and arrangement" aspect to copyright. i.e. the arrangement of uncopyrightable items may itself be creative enough to support a copyright, it seems unlikely it can be achieved with just arranging three items. I'm sure a lot of the works would be copyrightable, though. One way to see is to look if any of the works have been registered in the U.S. -- if they have, then obviously the Copyright Office thinks there is enough expression. However, in looking on copyright.gov, I only see a single cardboard sculpture (NYC Pretzel) which has been registered. It's possible that Oldenburg simply hasn't submitted the others. Submitting them for registration would be a prerequisite for Oldenburg to actually file suit however. Of course if they are... then that defense won't work so well ;-) A couple of other ones in the deleted list were from the U.S., where it appears they may have been published without a copyright notice. Carl Lindberg (talk) 06:30, 13 November 2012 (UTC)

Wider view

Maybe a stupid question, but Google street view has most of this pop-art (an ironical example) available online. They are also California-based. How do they deal with FoP, DMCA and all that crap? — Mikhail Ryazanov (talk) 09:51, 10 November 2012 (UTC)

Google is big business, that alone is enough difference to the WMF, and in doubt will also claim hoster privilege per DMCA and take images down if they receive enough DMCA requests. --Túrelio (talk) 09:58, 10 November 2012 (UTC)

I thought, the law for a "big business" and a non-profit organization is the same... In principle, they might have more resources for court actions, but they still must do something about it. And I was talking about their own street view imagery, which has "© Google" marks on it. Will they eventually censor all copyrightable stuff from the street views (as they do with faces and license plates now) or lobby a more sane law? ;-) Nevertheless, what do they do now? — Mikhail Ryazanov (talk) 11:15, 10 November 2012 (UTC)

Google will act with any DMCA claim they receive, but it's a little hard for Google to see what is copyrighted and what isn't, no way can they use the same algorithm which blurs faces and rego/number/license plates, before being put online for Google Streetview. Also Google blurs faces and license plates for privacy and not "copyright" issues. Bidgee (talk) 11:29, 10 November 2012 (UTC)

Probably qualifies as fair use. At least "probably" enough that it's reasonable for Google not to worry about specific cases until someone complains. Rd232 (talk) 11:55, 10 November 2012 (UTC)

Unlike YouTube, DMCA takedowns don't actually protect Google on Google Street View, because that is not material submitted by a third party, and they are not merely a service provider but the author. They handle this the same way they handle copyright on Google Books, which is to say, if somebody sues them, they'll have a big settlement and work out some kind of deal. So far, that hasn't occurred. Recognising copyrighted art automatically is not only a very hard problem, but removing it would affect the quality of the service, so if they can get away with it, they will. (When they added the interior of the Prado Museum to Google Earth, of course, they had to work out a deal there.) Dcoetzee (talk) 11:59, 10 November 2012 (UTC)

Photos of Claes Oldenburg sculptures deleted from Commons due to DMCA takedown… and nothing of value was lost. Seriously, if these modern artists prefer to be such d***s about their artworks of highly questionable merit, I say let them! I for one would rather have one high-res Bosch than 10 Oldenburgs on Commons and rather one Tchaikovsky than 10 John Cages. DMCA notices can be a blessing in disguise. Consider them content quality control. I see no reason at all to fight the takedown notices in this particular case. --Morn (talk) 12:45, 10 November 2012 (UTC)

Blech, I bet those grapes were sour anyway. :) Rd232 (talk) 13:05, 10 November 2012 (UTC)

Well, those infamous Oldenburg sculptures are uglyfying virtually every major German city, which is admittedly quite an achievement in and of itself. So those overvalued grapes have very much been tasted before discarding them. I guess with a little luck, we'll get takedown notices from Christo, Yves Klein, and Yoko Ono too and the world will be a happier place for it. :-) --Morn (talk) 14:53, 10 November 2012 (UTC)

If you're really committed to your position, get to work and find reliable sources which agree with you, and expand the articles on the artists or the artworks. Because, if you're right, and the art sucks, shouldn't people be warned, and shouldn't they see it here before they waste their tourism dollars to go see it in person? --Lexein (talk) 02:21, 11 November 2012 (UTC)

Well, I don't want to come across as someone who is against all modern art. In fact I even like Klein's blue squares somewhat, at least they are not as pretentious as some other artworks. But 90% of modern art is crap, because 90% of everything is crap, at every given time. The difference to me is that e.g. a mediocre Baroque composition or a so-so fresco in a church usually at least have a certain level of solid craftsmanship behind them which tends to be absent in many incongruously slapped-together pieces of modern art. I have no doubt that in a 100 years or so, wide swathes of 20th-century music, art, architecture, and pop culture will be widely seen as a mostly failed experiment, a race to the bottom in terms of quality and effort. In fact that realization is already slowly dawning on a few people I think… --Morn (talk) 16:12, 11 November 2012 (UTC)

Followup DR

Some Oldenburg files appear to have been missed by the DMCA notice; I thought it best to nominate those for deletion. See Commons:Deletion requests/works by Claes Oldenburg. Note that there may be other files like those, not categorised or described properly. Rd232 (talk) 23:59, 10 November 2012 (UTC)

I opposed, there. These DR should be reverted immediately. By the so-far-I've-seen-applied-everywhere rule of "we deal with it as it comes up", please note that these images are not listed in any DMCA notice. Wikipedia/Wikimedia is not obligated to guess what will be listed next by, or to do the work of, an alleged copyright holder. Let's not be driven by fear. Let's not encourage deletionism, either. I suggest another solution, for example: moving to Wikipedia with appropriate fair-use rationale if and only if needed. In fact, are there tools for moving images from Commons to Wikipedia, or what's the correct template to add? --Lexein (talk) 01:49, 11 November 2012 (UTC)

Um no - valid DRs don't get reverted. And it's not like I'm nominating everything on Commons vulnerable to the same logic, which WMF seems to agree with. Only those things which Oldenburg's lawyers seem to have missed. Rd232 (talk) 08:05, 11 November 2012 (UTC)

If these images are valid under FoP they would need another DMCA takedown notice to get them removed. Currently there's no legal reason to remove them as they were not mentioned in the original notice. --Denniss (talk) 17:12, 11 November 2012 (UTC)

I find it quite extraordinary that people so happily invite another DMCA takedown from the same copyright holder. I wonder too whether people realise

1. the potential consequences for uploaders: see en:Online_Copyright_Infringement_Liability_Limitation_Act#.C2.A7_512.28h.29_Identify_infringers.
2. the "red flag" test, with unknown consequences for WMF liability en:Online_Copyright_Infringement_Liability_Limitation_Act#Red_Flags. Rd232 (talk) 18:43, 11 November 2012 (UTC)

The best solution is to write to the DMCA author, and ask if these were omissions or not. No need to delete unless they answer. Yann (talk) 18:47, 11 November 2012 (UTC)

All deleted images can be uploaded to Wikilivres. Yann (talk) 19:01, 11 November 2012 (UTC)

German discussion

For those who read German, there is also an interesting and already quite extensive discussion about this over in the German-language Wikipediat, at de:Wikipedia_Diskussion:Kurier#Oldenburg_Office_action. Pavel Richter of Wikimedia Germany has stated there that on Monday, they will consult with their lawyers regarding possible actions. Gestumblindi (talk) 02:21, 11 November 2012 (UTC)

Not an FOP issue

2 of my photos were part of the takedown notice, one of CO's Clothespin (1976) and his 3-way-plug (1970), both in Philadelphia. Neither has a visible copyright notice, and from websites it seems clear that they were actually published (standing in open space without copy restrictions) before 1978. For Clothespin, I closely checked while I was taking the photos, that there is no visible copyright notice, and I went back Saturday and my wife and I checked again - there is no visible copyright notice. For 3-way-plug, I haven't gone back yet, but I did carefully check while I was taking the photo. The SIRIS database also has entries on these. They usually (I won't guarantee always) record all inscriptions - and they didn't record any copyright notice. Thus it seems pretty clear that these aren't copyrighted since they were published before 1978 without a visible copyright notice.

So I am quite reluctant to let COs lawyers dictate how I can use my property (my photos) when CO doesn't seem to have any property rights in them. I'd also be reluctant to expose myself to $1,000s in damages and court costs. I've thought about just writing to his lawyers and asking why they think he has copyright. Any other suggestions? Smallbones (talk) 17:27, 12 November 2012 (UTC)

That's interesting. Also, it seems that if you can prove that a sculpture is a work of Claes Oldenburg alone (that is, without involving Coosje van Bruggen), and made in 1954 or later and erected before 1978, then the United States copyright notice requirement also applies for works in Europe and elsewhere, so some older European works may be in the public domain in the United States. --Stefan4 (talk) 18:35, 12 November 2012 (UTC)

Does anybody have a general estimate of the $ amount of damages I might face if I did file a counter-notice? Of course I'd check with a lawyer before proceeding, but for now an order of magnitude estimate would be ok. $100? $1,000? $10,000? $100,000 $1,000,000 ???? Smallbones (talk) 19:31, 12 November 2012 (UTC)

well, the korean war memorial potential damages was for percentage of sales [1]; but the main exposure would seem to be legal fees. perhaps the eff would take the case. the siris appears clearcut [2]; no registration at copyright office [3] i only uploaded sarah's flickr as "fair use" in earlier days, in an excess of caution, before i knew to look there. i take it they feel no risk of copyfraud by DCMA, but will have to decide about their risk at trial. Slowking4⇔ †@1₭ 20:45, 12 November 2012 (UTC)

Stefan4 is partially right. His argument holds for works erected in the US, but for works outside the US, their copyright was renewed by the URAA agreement, regardless of formalities. Kaldari (talk) 22:00, 12 November 2012 (UTC)

URAA doesn't apply to works created by Claes Oldenburg alone (i.e. without involvement by his wife) in 1954 or later because those works were created by a US citizen residing in the United States. However, works by his wife, and works made before Oldenburg became a US citizen in 1953, are subject to URAA restoration. See COM:URAA#Exceptions 1.3. If URAA doesn't apply, then you need to look for copyright notices instead when determining the USA copyright status, and this also applies to works outside the United States. --Stefan4 (talk) 15:53, 13 November 2012 (UTC)

@Smallbones: Both Derrick and I have successfully filed counter-notices in the past with no problems. It is unlikely that Oldenburg's lawyers would challenge the counter-notice, as:

1. They would have to agree to U.S. jurisdiction for the case (I believe)
2. They would have to start spending real money
3. They don't have much of a leg to stand on in your case specifically

Kaldari (talk) 22:04, 12 November 2012 (UTC)

Interestingly enough, at least some of the objects (including that Clothespin) were commissioned [4], possibly constituting work for hire. It means that: (1) Hallie McNeill, who claims to be the copyright owner, actually might not have exclusive rights; (2) these rights might belong to many different people and institutions, leading to weaker or stronger restrictions for different works. — Mikhail Ryazanov (talk) 03:36, 15 November 2012 (UTC)

Thanks for the information and the the support. I won't impose on anybody for financial support, there are more important "charities" than me. I did notice that an image search on Google returns over 3,000 pix on the internet (probably only about 1,000 actually of the Clothespin) so it's hard to imagine what any damages would be. I'll just assume good faith by CO and his lawyers, send them an e-mail and ask if I'm overlooking anything. If they don't come up with something reasonable, I'd feel that I'm on safe ground. Thanks again. Smallbones (talk) 02:34, 13 November 2012 (UTC)

Sounds like a good approach. Keep us posted, there are lots of us interested in this case. --99of9 (talk) 13:20, 13 November 2012 (UTC)

I've contacted them and given them the facts of the case and asked if they had any corrections or additional material that they thought I should consider. I've waited a week but haven't gotten a response. Smallbones (talk) 16:10, 20 November 2012 (UTC)

UK law blog mention

I pinged the story to the IP Kat, one of the top law blogs in the UK, much read by all sorts of practitioners.

The blog owner's quick take is that "while s.62 applies in the United Kingdom, the United States courts, when asked to enforce a United States copyright against a local infringer, wouldn't give tuppence for any number of s.62s."[5] -- though he confesses to being "not the world's greatest expert on the bits and pieces of copyright law that stray from one country to another", so would be happy to be corrected.

A commenter, himself a noted lawyer, notes also that one authoritative legal text suggests that the UK CDPA s62 "relates only to copyright in such structure itself, and does not provide an exception to infringement as to any underlying architect's design drawings" -- which frankly IMO would be truly miserable, if correct, and defeat the whole point of the exception. Jheald (talk) 17:38, 12 November 2012 (UTC)

Interestingly the prominent Canadian lawyer Howard Knopf has posted a comment, suggesting WMF may be wrong, and a photograph of a sculpture should not be considered a derivative work under U.S. law. He cites Bill Patry at §3:18. Any thoughts? Jheald (talk) 23:37, 12 November 2012 (UTC)

Knopf, in his ultra-short comment, seems to have misunderstood Patry's argument and he is pulling it out of its context. If you want to read what Patry thinks, in his own words, you can read this entry, from 2008, on his blog. The reader's comments section below it is instructive too for more details (although I din't have the patience to read all comments to the end - maybe another day). Note that Patry makes a theoretical point about how to qualify a photograph: should it be qualified a "derivative" or a "depiction" (reproduction) of the 3-D work. Patry is not saying that the photographer does not need the permission of the author of the 3-D work, or that photographs of sculptures can be freely published as if there was a FoP for sculptures. He simply says that the photograph should be defined as a depiction, and not as a derivative of the 3-D work. He specifies (more clearly in the comments section) that the photographer needs the permission of the author of the 3-D work. The labelling distinction between derivative and depiction may have some practical consequence in somes cases about other issues, but it does not change the fact that an unauthorized photograph (whether people want to label it a depiction, a reproduction or a derivative) of a sculpture is still unauthorized anyway. Aside of the fact that Patry's opinion didn't address our problem, I think that it is an interesting opinion, but you can also note that he's quoting court cases that went in both directions about it, so it's not exactly established either. (And some reader's comments remarked that it is not obvious that he can exclude photographic reproductions of artistic 3-D works from the definition of "derivative work" in the Copyright Act.) You can read a 2009 update about one of the cases he criticized, in the blog of another attorney (I'll have to explore more of that blog too, when I get time). If you want to read that case, we have it here. -- Asclepias (talk) 03:30, 13 November 2012 (UTC)

Quite right. See here for my take in 2008 on this. The upshot being that "derivative or not" doesn't really matter for us; if it's not a derivative, it's still a reproduction. Lupo 07:54, 13 November 2012 (UTC)

RFC

Can I suggest that discussion of practical ways forward (like the new template, for example) moves to Commons:Requests for comment/non-US Freedom of Panorama under US copyright law? Thanks, Rd232 (talk) 01:05, 13 November 2012 (UTC)

Dutch FOP

In the Netherlands we have Freedom of Panorama. This means that photo's of objects placed permanently in the public space may be published. Please restore the pictures taken in the Netherlands: the DMCA and US law do not apply to photo's taken in the netherlands. Zanaq (talk) 12:15, 13 November 2012 (UTC)

The DMCA applies to US organisations serving works from the US: like the Wikimedia Foundation. See discussion above. Rd232 (talk) 12:25, 13 November 2012 (UTC)

There is no issue around people in the Netherlands taking and distributing such images to other people in the Netherlands. The question is whether a US person or organization (like WMF) can distribute such images, or whether this activity is limited by the US copyright that is automatically granted to foreign artists on foreign works. The WMF must comply with any valid DMCA takedown request or risk losing their safe harbor. Dcoetzee (talk) 19:57, 14 November 2012 (UTC)

Adding to that (as I said elsewhere recently): "valid DMCA takedown request" means formally valid: the copyright claim itself may be completely and even quite obviously bogus. The WMF has very limited grounds to reject a request, and those grounds amount to basically "you haven't given us enough info to act on" - the accuracy of the info is almost irrelevant, and challenging a dodgy notice is not something they can do, it's something Commons users have to do (see en:DMCA_takedown_notice#Notice_from_Copyright_Owner). Rd232 (talk) 21:03, 14 November 2012 (UTC)

The WMF can challenge a DMCA takedown notification, as well as the user. The difference is in the manner to express that challenge.

A decision to comply with a takedown notification is the exercise of an option that is available to a service provider who receives a takedown notification and who chooses to use that option to shield itsef from the risk of civil liability (injunctions and money for damages), a risk that would otherwise be incurred if the notificator decided to file a suit and if a tribunal decided to award such relief. By itself, a refusal to comply with a DMCA notification does not expose the service provider to an additional category of penalty. A refusal to comply with a takedown notification is a refusal by the service provider to hide itself behind the optional shield made available by the DMCA. It replaces the parties in the situation into which they would be if the DMCA shield option did not exist, that is to say, a situation where the complaining author may file a civil suit and ask for relief against the parties he claims are responsible, and said parties may challenge the suit, and a tribunal decides the case, if it ever gets to this point.

Thus, the service provider who wants to challenge a takedown notification just has to not comply with it. This opportunity of the service provider to challenge the notification comes before that of the user. If the service provider decides to comply with the takedown notification, then an opportunity to challenge it becomes available to the user, through a counter-notification to the service provider. By sending the counter-notification, the user is accepting that the service provider can use the DMCA shield and the user is accepting to take upon his shoulders the risk corresponding to the part of the liability that the service provider might otherwise have incurred for keeping or replacing the material online.

The challenge is similar. The obvious differences are in the manner to formally express that challenge and the party who takes the risk of that part of the liability should the notificator decide to sue and is awarded relief. It could be conceptualized by imagining that a refusal by a service provider to comply with a takedown notification is virtually the equivalent of the service provider sending an immediate counter-notification to itself. But, of course, it doesn't need to actually send a counter-notification to itself. It simply expresses the challenge to the takedown notification by refusing to comply with it. Whereas the user, being a person distinct from the service provider, must send a counter-notification if he wants to counter-notify the service provider. If the service provider has opted to use the shield available through the DMCA, and if the user has opted, through sending a counter-notification, to take the burden, then the risk that would have normally been taken by the service provider is transferred from the service provider to the user, by the addition of the voluntary decisions of those two parties. (Then again, the service provider is under no obligation to comply with the user's counter-notification, no more than it was under an obligation to comply with the takedown notification. If the service provider chooses to comply with the user's counter-notification, then it uses another option made available by the DMCA to shield itself against the civil liability that it might otherwise have incurred if the user had some possibility to file and to win a suit against the service provider for having removed the material.)

We may suppose that, in practice, many service providers who are primarily commercial businesses will easily jump on the possibility of using the DMCA shield option, that is to comply with a DMCA takedown notification, whenever they have no particular incentive to challenge it, or even to spend time and money to examine its merits. But this attitude should not be generalized. In particular to the WMF. The WMF is not primarily a commercial business. It is basically dedicated to promoting free material and free use. The WMF has expressed its willingness to support challenges in cases where it thought there was a reason to. Understandably, the WMF, and I think we can agree with that, will not risk wasting all its money through risking challenges without being reasonably certain to be on very safe ground. However, I would think that when the WMF receives a takedown notice they would first analyze it, and if it comes to the conclusion that it is abusive, or that it is unfounded on an important legal point of principle worth fighting for with a good certainty of winning, it would challenge it. In the recent case of the scupltures, the WMF has clearly expressed that it has submitted it to the analysis and advice of its attorneys and they came to the very clear conclusion that the notification was well founded. If they did not challenge it, it is not because there is anything in the DMCA that would specially forbid a challenge, it is because they concluded that the notification was well founded and there was no reason to challenge it. -- Asclepias (talk) 02:44, 15 November 2012 (UTC)

I would love to agree with your conclusion regarding the WMF refusing to comply with abusive takedown requests, but their compliance at en:Texas Instruments signing key controversy suggests otherwise. That was a case where the request had no merit whatsoever under any section of the DMCA, as explained in detail in the EFF's letter to Texas Instruments. I can only hope that was a different time when the WMF was not so careful in their analysis. Dcoetzee (talk) 08:19, 15 November 2012 (UTC)

I'm skeptical of your theory that the WMF could choose not to comply with a takedown (because they think the material isn't infringing) without affecting their "safe harbor" status for other (infringing) materials. Do you have any sources (or at least quotes from the law)? Rd232 (talk) 12:35, 15 November 2012 (UTC)

I know that Wikilivres hosting company refused to comply with a request from Gallimard. It may not have been a formal DMCA notice, I don't know the details, but I know that Gallimard's lawyer complained to them. They agreed that the documents were in the public domain in Canada, and that was sufficient for them to refuse the take-down request. That was in Canada, not in USA. Yann (talk) 13:40, 15 November 2012 (UTC)

Since neither Wikilivres nor Gallimard are US organizations, it's unlikely that it was a DMCA notice. cmadler (talk) 14:59, 15 November 2012 (UTC)

If a good-faith person, today, chooses to not use one of the optional rights available to him in case A, for which he thinks that this option is not useful or appropriate, that person is not forbidden to use his right tomorrow in case B, for which he thinks that it is useful and appropriate. The contrary would be shocking to legal logic. Every law does not need to restate that common principle. It applies by default, unless a particular prohibition is specified. The safe harbor provision of the DMCA is an optional right available to hosts. It is a very advantageous option, sure, so advantageous that most hosts will probably almost always choose to use it. But still, it is an option, not an obligation. There is nothing in the DMCA that says or implies that if you choose to not use your right in one case you can't use your right in the future in other cases. I think perhaps you may have in mind some other aspects of the DMCA, through which bad-faith hosts or hosts who fail other types of requirements may be denied the benefit of safe harbor. My previous comment did not address that level of discussion about how the safe harbor may be affected by those other elements of the context, such as bad faith or failure to enforce a copyright policy. My comment, in reply to your previous comment, was simply adressing a straightforward case, where the host is of good faith, carefully examines the situation, sincerely concludes that the notification is unfounded, has a reason to want to challenge that particular notification, and exercises his right to host the material that he sincerely considers to be non-infringing.

Quotes would be really long, but for the essential overview of the general structure of this aspect of section 512 of the Copyright Act, one can focus in particular on:

• subsection (c):
  • paragraph (1) - its introduction and its subparagraph (C)
• subsection (g):
  • paragraph (1)
  • paragraph (2) - its introduction and its subparagraphs (A), (B) and (C)
  • paragraph (3) - its introduction and its subparagraph (D)
  • paragraph (4)
• subsection (l).

And to examine some of the actual reasons why a host might be denied the possibility of using the safe harbor, one can focus in particular on:

• subsection (c):
  • paragraph (1) - yes, we've already read part of it, but this time focus on its subparagraph (A), clauses (i), (ii) and (iii)
• subsection (i):
  • paragraph (1) - its subparagraph (A)

To make sure that we are speaking about the same things, it may be useful to review some details. Let's start with this. Some users have recently suggested that Commons and the WMF should simply host copyvios (or if we must use an euphemism, we can call them "files whose legality is notoriously under very serious doubt"), put their heads in the sand, and that such behaviour would be safe until the concerned authors send DMCA takedown notifications for each file, and as long as those files are removed upon reception of such notifications. Now, such attitude just can't work, because one essential condition, for a host to be able to claim the protection of the DMCA when he complies with a DCMA takedown notification, is that the host must be of good faith, that is to say, that he genuinely was not previously aware that the (real) problem existed (or if he became aware of it, through any means, he took action). That might go without saying, but it's even better when said, so the Act does spell it out, as we have seen, in 512(c)(1)(A). The fact of being aware of the problem, putting one's head in the sand, claiming not to be aware of the problem when the context shows otherwise, is the opposite of good faith. It is even a perfect example of the definition of bad faith. If Commons were to take such a path of feigned ignorance, it would be easy for an author to find and show evidence that WMF agents had "actual knowledge" of the situation or at the very least were "aware of facts or circumstances from which infringing activity is apparent". It is not possible to claim good faith, and thus it is not possible to use the safe harbor option, when evidence, or obvious inference, shows that the host was, or should have been, aware of the infringing situation. Another reason why safe harbor can be denied is mentioned in 512(i)(1)(A): if it is shown that the host has failed to reasonably implement a policy to terminate accounts of repeat infringers.

It can be noted in passing that a formal paragraph-C takedown notification is merely one of several ways mentioned at 512(c)(1) and through which a host can be made aware of an potentially infringing situation. A paragraph-C notification has sowewhat of a special character because such a notification, when validly formatted, would, if a case were to go before a tribunal, be considered almost indisputable proof of the fact that the host was informed of the situation. But three things must be remembered: 1) The notification is not proof that the host was wrong. If a host thinks he did not infringe anything and decides to challenge the notification and if the complainant decides to sue, the judge will still decide with the ordinary standards who is right and who is wrong under the law. 2) There are many other ways by which it can be proven that a host was aware of a situation, although, depending on the available evidence, it may be more or less easy or difficult to prove. 3) There's not necessarily a "good guy" and a "bad guy" in the story. Both parties may be sincerely convinced of being in their right and may deem it worth to have their difference settled by a tribunal.

In short:

• If a host reasonably enforces an anti-infringing policy and takes reasonable actions when he knows of a problem, there is no reason why this good-faith and diligent host should lose his safe harbor for future cases for the sole reason that he did not use it in specific cases where he challenged formal DCMA notifications that he considered and found to be unfounded.
• Even if a bad-faith or otherwise grossly irresponsible host complies with all the formal DCMA notifications he receives, he will not benefit of the safe harbor if his bad faith or gross irresponsibility is evidenced by the fact that he is aware of and deliberately tolerates infringements that were not the object of formal DCMA notifications. Therefore, the safe harbor is not a candy that a host would receive for blindly complying, without thinking, with all formal notifications. However, if for example it is shown that a host systematically ignores or automatically rejects most apparently serious notices or signals, formal or not, that could be a symptom of bad faith or carelessness.

Lastly, it should not be forgotten that the Wikimedia projects do not necessarily fit easily into the frame of the DMCA. The general logic of 512(c) and (g) is made for passive hosts who offer server space to subscribers who are in decisional control of storing and deleting their material. This is not exactly the situation of Commons, for example. But let's keep that for another time. -- Asclepias (talk) 07:03, 16 November 2012 (UTC)

Thanks for the detailed explanation. It raises some interesting possibilities about how much scope WMF has to publicly discuss infringement alleged by DMCA takedown with the community, or at least privately with uploaders, rather than just deciding internally. Of course the final decision to comply or not is theirs, but in this particular case, for example, could the information that's come to light about some of the files probably not being infringements have been used by WMF to decide to take down some files but not others? Rd232 (talk) 14:48, 16 November 2012 (UTC)

If a complainant groups into a single letter the deletion demands of ten files and then the notified host deletes nine of those files and keeps one which is non-infringing, does the host enjoy safe harbor about the nine files he actually deleted? IMO, yes, the notified party can do that, because the opposite would be unfair and would not serve any legitimate purpose. It would mean that a complainant, just by arbitrarily bundling together a number of apparently founded demands with a number of clearly abusive demands, could have free rein to bully the host and place him in a situation where the host should choose between A) complying to all demands, including the clearly abusive ones, or B) challenging only the abusive demands and still lose his safe harbor for the files he did actually delete. That would hurt fairness.

That said, just because someone can do something, doesn't mean that he will want to do it or that he will see any interest in doing it. An organization (or an individual) who receives any sort of formal notice will evaluate its options in function of several factors and of its priorities. If the WMF receives a formal notice to delete a file from Commons, I suppose it will consider a combination of factors including what is the level of certainty of being correct, how serious does the complainant seem to be, is the file worth it, what principle is at play, how many other files are in a comparable situation? In some cases, even if there's almost a 100% chance of being correct in keeping a file, it may not be worth the effort of a challenge. And we probably would not want the WMF to spend its efforts and its money challenging comlaints for only a small chance of success just to test an unimportant detail in the Copyright Act. However, if, for example, a museum seriously demanded the deletion of PD-Art files, that would more likely be worth a challenge, as the WMF would feel on solid ground with judicial precedents and it's an important principle for the WMF.

In your comment, I suppose you were thinking of the sculptures erected before 1978. On Commons, in deletion discussions, this argument seemed reasonable, but I don't know what's the degree of confidence in it. We don't know if the legal team of the WMF considered that argument and, if they did, what they thought of it. Maybe they didn't consider it. Maybe they considered it unfounded. Maybe they thought keeping those particular files was not worth a specific challenge anyway. The answer of the complainants to one uploader's request for information could be enlightening. -- Asclepias (talk) 23:48, 16 November 2012 (UTC)

November 10

Marking FP/POTY to automate the categorization and classification efforts

• Commons talk:Picture of the Year#Marking POTY candidates through Assessments template

I am posting this here to give the discussion a more broad audience.

-- とある白い猫 ^ちぃ？

New html5 player issues

Tracked in Phabricator
Task T44266

I'm not sure if this is the right place to ask questions about the new html5 media player used at Wikimedia Projects, so please let me know if I should report this elsewhere. I'm having an issue opening pages with high numbers of audio files (which is often the case with categories like Category:Ogg files of music by Frederic Chopin): browser window (Firefox) or tab (Chromium) becomes unresponsible for about 20—30 seconds until that page can be successfully viewed/scrolled. It seems that the loading of the player is the bottleneck. A possible solution would be to load and render the player conditionally, only when the user decides to play a media file. Also, is there a way to temporarily disable the player, and use the native browser html5 media element UI instead? --YurB (talk) 21:05, 15 November 2012 (UTC)

I´d here (Win 7, SeaMonkey) a similar issue with video pages. Disabling the prefetch function of the browser catch solved this problem for me. --Pristurus (talk) 21:32, 16 November 2012 (UTC)

Thanks for reporting this! I can confirm the problem and I've forwarded it to the issue tracker at https://bugzilla.wikimedia.org/show_bug.cgi?id=42266 so the developers can investigate. --Malyacko (talk) 16:27, 19 November 2012 (UTC)

November 16

Problem with image thumbs

I started again scanning and uploading Journal de Bruxelles images. The server seems to have problems with rendering images of File:Journal de Bruxelles nr 136 1800 (362 363).png. Wat is the problem? PS: I will have to rename to keep the same standard: It should be: Journal de Bruxelles nr 136 1800 (362, 363).png (with comma)Smiley.toerist (talk) 01:00, 16 November 2012 (UTC)

Looks like a typical COM:MAXTHUMB case - see the link for templates to use to link a jpeg version which can be thumbnailed. NB you have the printer fr:Jean-Louis de Boubers as the author; I'm not sure that's correct. Rd232 (talk) 01:39, 16 November 2012 (UTC)

808 kB is not oversize. I suspect it is because it is scanned in png format and then cropped. Cropping png files can probably lead to technicaly incorrectly coded files. I chose the png formaat because due to the bad quality of the printing I have to edit image extensively to remove ink stains, double images from other pages, etc. jpeg images are not stable by extensive editing due to the re-rendering of the image after every edit. Jean-Louis de Boubers seems to be the correct editor. He lived in Brussels at the time (1800). The adres given is: rue de la Montagne.Smiley.toerist (talk) 09:42, 16 November 2012 (UTC)

I try the gif format but it doesnt work. File:Journal de Bruxelles nr 136 1800 (362, 363).gif Smiley.toerist (talk) 10:15, 16 November 2012 (UTC)

I have another scanner than in the past and I am trying out different parameters. File:Journal de Bruxelles nr 136 1800 (361).jpg. Is this better than File:Journal de Bruxelles nr 136 1800 (361).png? Smiley.toerist (talk) 11:16, 16 November 2012 (UTC)

Thumbnails are not made for PNG and GIF images larger than 12 Mpx (3000 x 4000). Yann (talk) 11:50, 16 November 2012 (UTC)

I scaled down the PNG to 3,963 × 3,000 and the problem is fixed. File:Journal de Bruxelles nr 136 1800 (362 363).png. The GIF can be deleted. Yann (talk) 11:57, 16 November 2012 (UTC)

The limit moved up to 25MPx recently. See COM:MAXTHUMB. --99of9 (talk) 12:36, 16 November 2012 (UTC)

A suggestion. As these images are predominantly text, I suggest to scan in high resolution in TIFF and convert them to PDF with Acrobat Pro including OCR. A part will be not recognized by the OCR, but the quality of the image remains with the right settings. A big advantage is that the text can be searched. Moreover more images can be combined in one PDF. Wouter (talk) 20:07, 16 November 2012 (UTC)

I though PDF is not uploadable on the commons. I tried an OCR program but it wasnt a bigg success. The lettertype is ancient and there where to many errors. Even after I removed a lot of noise (ink blots etc). At least halve the words got mangled. I havent got Acrobat Pro anyway. But anyone can try and I can deliver an TIFF file. Typing it out by hand is to much work. We could enter a lot of key words to help the search engines. By the other journals I have added a lot of categories. For example on the first page of nr 136, there is the mention of finding of a feral child in Aveyron. (but first I have to move the "Feral Childern" category. One thing leads to an other)Smiley.toerist (talk) 00:03, 17 November 2012 (UTC)

PDF's are allowed. There are several on commons. But if you are scanning as TIFF why not upload as TIFF (A tiff file can contain more than one page too)? Bawolff (talk) 00:32, 17 November 2012 (UTC)

A note on 808kb comment above - compressed file size doesn't matter (It's uncompressed file size that we care about). For certain types of images PNG compression can be very effective (In this case it looks like the image consists of only two colours, which is probably why the file size is so small). What does matter is the resolution of the image. The original version exceeded the resolution. Bawolff (talk) 00:32, 17 November 2012 (UTC)

I have tried with Acrobat Pro and OCR. The OCR did not give a useful result. Wouter (talk) 16:15, 20 November 2012 (UTC)

I have a copy of ABBYY which is much better OCR, if you want to send the images to me. However with ancient fonts and languages normally some kind of extension package is required. Dcoetzee (talk) 18:05, 20 November 2012 (UTC)

500px Creative Commons license

Hi, just want you to know that from today users of 500px.com can upload their photos under the Creative Commons license (source: http://support.500px.com/customer/portal/articles/846504). Maybe we can upload them here just like we do for Flickr. That's all. Bye! --Viscontino (talk) 16:10, 16 November 2012 (UTC)

Hey, I was coming here for the same good news. Indeed, there are not so much CC photos for now, but there are some very qualitative ones! Quick links : CC-BY photos & CC-BY-SA. Also we can now easily ask 500px photographs to use a CC license if they want on a photo that interests us for an article, like with Flickr photographs before. Nclm (talk) 19:58, 16 November 2012 (UTC)

Unless I missed something, those photos are with only a CC type symbol but no more indication nor link to a specific license version. Not sure what we can do with that. Looks like they need to work on how they present the licensing. -- Asclepias (talk) 20:42, 16 November 2012 (UTC)

CC-BY-SA is clearly indicated below the image (see [6]). Yann (talk) 10:46, 17 November 2012 (UTC)

Which version? Do we just assume 3.0? —LX (talk, contribs) 11:16, 17 November 2012 (UTC)

We could ask for this information. In the meantime, I would use the most restrictive one. Yann (talk) 11:46, 17 November 2012 (UTC)

They don't appear to be aware of the need to give a version. (In fact, they don't seem to link back to the CC license texts anywhere). So I sent them an e-mail. This, that and the other (talk) 06:57, 18 November 2012 (UTC)

Yes, sorry, my wording was not clear. By "type", I did mean the "type of license" (by, by-sa). But no specific license version. On other websites, in situations where a specific license is not immediately apparent, it is often possible to find the exact information by looking around and finding a link to the specific license on the CC website, or by exploring the website and finding the specific license information on another page of the website that answers the question. Even where there is no such link or information page, if at least the version number is mentioned, it's probably okay to assume the corresponding generic or unported license (but not necessarily okay to assume a corresponding localized or ported version). But if the version number is not specified, making an assumption about a version number would be an additional step, more problematic. Maybe it would not be unreasonable to assume something like "this image is offered under the most recent version of this type of license at the time when the image was offered on this website or any later version of the same type of license", but the absence of mention leaves a doubt about if the photographer really expressed a valid consent to such an implicit license. It would be much better if that would be clarified on the 500px website (or made more obvious if it's already there somewhere). -- Asclepias (talk) 14:52, 17 November 2012 (UTC)

I think we can assume they intend to use the 3.0 (current) versions of the licenses. BTW, can someone License Review this photo from 500px for me: File:New River Gorge Bridge by Donnie Nunley.jpg? Kaldari (talk) 05:38, 19 November 2012 (UTC)

I sent an email to 500px about this, let's see what they say... in the meanwhile, can someone do a license review of the last photos I uploaded? There are some great pictures, help me uploading them all! :) --Viscontino (talk) 13:14, 19 November 2012 (UTC)

Reply from 500px: "Thank you for bringing this to our attention. I have forwarded it to our founders, as they're much better versed in how CC works. We'll do our best to address these concerns." --Viscontino (talk) 19:15, 19 November 2012 (UTC)

I got a reply from them saying they are using CC 3.0 licenses. So there we have it. This, that and the other (talk) 22:34, 19 November 2012 (UTC)

Many of these photos are of great quality. Can you post this on the Wikipedia Village Pump to let others know, as well? Mahanga (Talk) 20:36, 20 November 2012 (UTC)

November 17

Correct naming of a category I'd like to create

This afternoon I've taken around 8 pictures at 2 rest areas along Interstate 75. I'd like to make a category that had the cateogies Category:Rest areas in the United States and Category:Interstate 75. Should the correct category name be something like "Rest areas along Interstate 75", "Interstate 75 rest areas" or what? --Mjrmtg (talk) 20:25, 17 November 2012 (UTC)

I would probably name it "Interstate 75 rest areas", though either would be OK. You may also want to do rest areas by state; I see that other countries have the organized this way (see, for example, the subcategories of Category:Rest areas in Germany and Category:Michinoeki in Japan‎). cmadler (talk) 14:45, 19 November 2012 (UTC)

How do I get an acceptable picture

The Rijksmuseum museum had a piece of petrified wood from the Drees estate that was mistaken as a "moon rock" and looked like this. <--- How could I use this picture in the English Wikipedia "Netherlands lunar sample displays" article? Screenshot? Any ideas here where Wikipedia will accept the picture as or how it is a copyright free image? U.S. government image?----Doug Coldwell (talk) 20:46, 17 November 2012 (UTC)

Questions specifically about a Wikipedia should preferably be asked on that Wikipedia. But since you're asking if there are any ideas here, my impression is that the answer might be that such an unfree photo should not be used there. Because you want to illustrate the subject, not comment about the photographic work. Normally, the possible solutions should be to ask permission from the author, or look for a free photo, or find someone who can go to the museum and take a free photo. -- Asclepias (talk) 21:08, 17 November 2012 (UTC)

Although, if the mistake in labeling has been corrected a free photo can not be created, and we'd be reliant on what's out there, which does open up a possible fair use claim. Either way, you want Wikipedia, not Commons. cmadler (talk) 15:04, 19 November 2012 (UTC)

Approaching a museum about releasing low-resolution images of copyrighted work into the public domain

Has anyone had experience approaching a museum about releasing low-resolution images of copyrighted work of 20th Century artists into the public domain? I would like to get some images for the en:Ray Yoshida & nl:Ray Yoshida articles, & then eventually for de:John Marin, en:John Marin, es:John Marin, it:John Marin, ja:ジョン・マリン, & ecetera.

If folks have already have discussed this, please just point me to the link(s).

Mahalo! Peaceray (talk) 23:44, 17 November 2012 (UTC)

There's Commons:Guide to content partnerships... -- AnonMoos (talk) 00:05, 18 November 2012 (UTC)

Thank you! I think that was exactly what I needed. Peaceray (talk) 00:53, 18 November 2012 (UTC)

Be careful; there was a recent court case where people paid an archive for copies of copyright work and permission to use them, and the artist sued them and the institution. Museums often don't have the copyright to the works they display.--Prosfilaes (talk) 05:37, 18 November 2012 (UTC)

Yes, you should generally assume if a work is still in copyright, that the copyright belongs to the original artist, not the museum. It is very rare to transfer copyright to a museum. Dcoetzee (talk) 18:04, 20 November 2012 (UTC)

Help! Now I need some legal advice on licensing from the Wikimedia Foundation.

The institution, Hawai`i State Art Museum / Hawaii State Foundation on Culture and the Arts (the latter runs the former) just sent me a "Photographic Material Request" form. I am wise enough to know that it is out of the scope of my knowledge on how to proceed with this, as I am one individual editor & cannot be a knowledgeable Wikicommons representative in this matter. Please point me to someone who can look at this document & figure out if & how we can proceed.

I am sure others working with GLAM must have run into this situation, but this is new territory for me.

Peaceray (talk) 04:00, 20 November 2012 (UTC)

November 18

Rendering of SVG text

The SVG thumbnailer is currently producing erroneous output on File:Asterisk.svg: the top quarter of the image is empty and the asterisk is cut off at the bottom. Viewing the native SVG gives no such problem. Has a font suddenly been lost on the server? Or is poor old librsvg having a bad day? This, that and the other (talk) 06:46, 18 November 2012 (UTC)

The image has been reverted, but the problem still stands with the old versions. They worked up until very recently! This, that and the other (talk) 09:15, 18 November 2012 (UTC)

I'm not sure what you're using to view the native SVG, but I've used three different programs (Inkscape, Firefox, Image Viewer) and they all show a similar result to the thumbnail shown here. I don't know what's changed, but I've tweaked the old (2007) version so it works fine here now. --Avenue (talk) 17:09, 18 November 2012 (UTC)

IN case you're sure that there's really an issue in the SVG renderer (and not in the file), please file a bug report with the testcase and good comparisons under https://bugzilla.wikimedia.org/enter_bug.cgi?product=Wikimedia&component=SVG%20rendering after checking for existing tickets under https://bugzilla.wikimedia.org/buglist.cgi?list_id=160992&component=SVG%20rendering&product=Wikimedia . Thanks for your help! --Malyacko (talk) 16:35, 19 November 2012 (UTC)

Move category

We have a category Category:Towers in Belgrad, could someone please move it to Category:Towers in Belgrade ?. Kind regards, Bjoertvedt (talk) 08:49, 18 November 2012 (UTC)

• Uncontroversial category moves like this can be requested at User talk:CommonsDelinker/commands. - Jmabel ! talk 09:14, 18 November 2012 (UTC)

USAP photo deletion

I noted the deletion of a large number of photos from the US Antarctic program: Commons:Deletion_requests/Files_in_Category:US_Antarctic_Program_photo_library_images. I don't contest the deletion, but I feel fairly sure that many of the photographers and copyright holders would be willing to license their work on suitable terms. Do we have a list of links to the original USAP pages for the photos that were deleted? Also, it would be handy to have a list of articles that were previously using the now-deleted photos. I can provide similar (but probably lower-quality) photos to replace at least a few. --Amble (talk) 22:31, 18 November 2012 (UTC)

I've started putting a list of source links together on the DR's talk page. It will take a while though. You can get a list of the articles each photo was in by clicking on its redlink and then on the "delinker log" link, but I don't know an easy way to get a full list covering all of these photos. --Avenue (talk) 03:43, 19 November 2012 (UTC)

By the way, if you do contact people to request a license, keep in mind that you may need to establish whether each photo was taken in their spare time, or as part of their employment duties. If it was part of their job, the photo is probably a work for hire and we would need permission from the employer, not the photographer. And it wouldn't hurt to mention we've deleted the file, and apologise for our previous mistake in infringing on their copyright. --Avenue (talk) 22:08, 19 November 2012 (UTC)

Thanks, that list is quite useful. --Amble (talk) 23:18, 19 November 2012 (UTC)

And while you're right that an apology wouldn't go astray, I'm not sure that Commons has infringed their copyright. We unintentionally misstated the licensing terms, but inclusion on Commons and in Wikipedia articles is in line with the explicitly allowed uses. --Amble (talk) 23:22, 19 November 2012 (UTC)

You're right, our error was more in mistakenly labelling them as PD (so perhaps leading others to infringe their copyright) than in infringing it ourselves. --Avenue (talk) 11:45, 20 November 2012 (UTC)

By the way, what's the proper procedure if one of the photographers does want to relicense their photos in a compatible way? --Amble (talk) 01:54, 20 November 2012 (UTC)

See the instructions at Commons:OTRS#If_you_are_not_the_copyright_holder. In point 2, you could upload the photo afresh, but it might often be better to undelete it (to restore its history here, translated descriptions, FP status etc). To do so, list it at COM:UNDEL, or just drop a note on my talk page. --Avenue (talk) 11:45, 20 November 2012 (UTC)

November 19

Adding a cat to a protected file

I regularly want to add categories to protected files and I'm wondering why some are protected... Anyway, can anyone add Category:LG Group to File:LG 시네마 3D TV 새 모델 ‘소녀시대’ 영입.jpg ? Thanks. --TwoWings * to talk or not to talk... 14:08, 19 November 2012 (UTC)

Files used on the front page are protected for a day. I assume the file will not be protected tomorrow. --Jarekt (talk) 14:21, 19 November 2012 (UTC)

Planned semi-automatic tagging of copyrighted sculptures with {{Not-free-US-FOP}}

Following no objections to the new tag {{Not-free-US-FOP}} at Commons:Requests_for_comment/Non-US_Freedom_of_Panorama_under_US_copyright_law#Tag_files_potentially_affected_by_US_FOP_clashing_with_source_country_FOP, I'm planning a semi-automatic high volume tagging job using User:DcoetzeeBot. I would use a semiautomatic tool which would briefly show me, for every file bearing an FoP tag, the image and its description. If the image prominently depicts a sculpture and the sculpture is either copyrighted, or no evidence is provided to show that the sculpture is in the public domain, the file would be tagged with {{Not-free-US-FOP}}. The new tag would directly follow the existing FoP tag. An example of what this might look like is shown at File:Houseball detail.jpg. Techniques like preloading, background editing, and hotkeys would permit this to be done at a very high rate (up to maybe 20/minute for files where only brief inspection is required).

The primary goal of this task is to help warn content reusers in the United States that the image may not be safe to use without a license from the sculptor, contrary to other statements on the file description page (such as the license statement and FoP tag). A secondary benefit is that it will help identify how many files would be affected by policy changes regarding photographs of copyrighted sculptures. I'd like to get a quick straw poll to see if there is consensus to run this task. Dcoetzee (talk) 19:34, 19 November 2012 (UTC)

I assume this is only going to be for sculptures outside the U.S.? Kaldari (talk) 21:13, 19 November 2012 (UTC)

I'm not happy at all where this is going. Looks like a rushed panic reaction. I don't support this at all. Multichill (talk) 22:45, 19 November 2012 (UTC)

The tag is simply a statement of the facts as regards US FOP for foreign works. Tagging is a sensible measure to warn US reusers and to track the scale of the issue. It's entirely separate from the question of what to do with such works. Rd232 (talk) 23:23, 19 November 2012 (UTC)

Of course, I presume. Sculptures in the US should either be deleted or not require FoP at all due to being out of copyright. -- King of ♥ ♦ ♣ ♠ 23:35, 19 November 2012 (UTC)

Seems sensible to me. However before going off and doing thousands, I'd suggest doing maybe 100 and letting people have a look at the results. The tag should be changed to categorise into its own tracking category. Rd232 (talk) 23:23, 19 November 2012 (UTC)

I also think this needs a test run first. And the usual recommended maximum bot speed limit of 10/minute (especially since each needs some limited human review). --99of9 (talk) 23:56, 19 November 2012 (UTC)

Okay, I modified it to cat into Category:Freedom of panorama works possibly copyrighted in the U.S. and I'll do a test run on the order of 100. Dcoetzee (talk) 01:40, 20 November 2012 (UTC)

Okay I've finished the coding and the trial run of 100 images, see the category linked above. Feedback welcome. (Note that a few of them were tagged by others.) Dcoetzee (talk) 03:07, 20 November 2012 (UTC)

If the statue is out of US copyright, and there is modern architecture in the picture, the tag should not be applied, because the FoP is about the architecture. --99of9 (talk) 23:56, 19 November 2012 (UTC)

• Yes, that's a good point. This tag expands on the claims in the existing FOP tag, so it shouldn't be applied to elements that tag doesn't apply to. --Avenue (talk) 01:09, 20 November 2012 (UTC)
• Yes, that's why it's semiautomatic - I would not apply it to files where the sculpture is in the public domain, unless it was missing evidence of such. More to the point, I don't trust people not to use FoP tags indiscriminately on PD works. Dcoetzee (talk) 01:40, 20 November 2012 (UTC)
  • Keep in mind that it would need to be under U.S. copyright, not necessarily under copyright where the statue is located. In other words, a pre-1923 statue should not get the tag even if the statue is still copyrighted in its source country. And conversely, a URAA-restored statue might still have U.S. copyright even its foreign copyright has expired. Carl Lindberg (talk) 14:34, 20 November 2012 (UTC)
    • Yup I'm following US copyright on the sculpture when applying the tag. Dcoetzee (talk) 15:34, 20 November 2012 (UTC)

The template seemed too definitive to me for widespread semi-automatic tagging. I've changed it so it doesn't claim as much certainty about the particulars of each image. I also added the common requirement that the underlying works be permanently located in a public place, which was missing before. --Avenue (talk) 01:09, 20 November 2012 (UTC)

My feelings about this template were well summarized by Multichill. It looks to me like a solution in search of a problem. I also think that despite of the template being clear and well written, I had a hard time figuring out what it is about. On my first read I was under impression that I should contact Sue Gardner if I would rather have my upload deleted, than being tagged with strange templates like that. Of course that is not what it says, but it took another read or two to properly parse it. --Jarekt (talk) 12:52, 20 November 2012 (UTC)

No problem? We've had files deleted by the Office under a legal theory we haven't been following, and just tagging files that may need to be deleted is a solution in search of a problem?--Prosfilaes (talk) 14:07, 20 November 2012 (UTC)

The form of the template is based directly on {{Not-PD-US-URAA}}, which has been in use for years, including the bit you're referring to. Nevertheless it might confuse some new users if their files are tagged with it. Could you suggest an alternate wording that might be more effective? I also indicated very clearly above the problems that this tag addresses. Dcoetzee (talk) 15:37, 20 November 2012 (UTC)

Notes on the trial run

• File:Cardiff St.John - Fenster 2a Lukas und Maria.jpg is ok for the US as far as I can tell, because for them the base artwork is {{PD-1923}}, but for everyone else it's FOP. --99of9 (talk) 03:42, 20 November 2012 (UTC)
  • Woops, right you are, didn't catch that that one was pre-1923. Reverted. I also looked for any others that were pre-1923 (found 4 others). Will be more careful about that in the future. Dcoetzee (talk) 04:05, 20 November 2012 (UTC)

What is our policy on which kinds of templates must be substituted?

There is a pending bot request which, if approved, will result in all templates listed in Category:Templates which must be substituted actually being substituted. This seems obvious enough, but there is some question about whether those templates actually all need substitution. Please could the community point me to any policy/guidelines on substitution, or at least weight in on which types of template must/should/shouldn't/mustn't be substituted. For the details people amongst you, please can you check the actual list, and remove {{Must be substituted}} from any templates you don't want substituted. --99of9 (talk) 23:43, 19 November 2012 (UTC)

November 20

UN and Taiwan

There's currently a dispute around File:United Nations Members.svg, with another user continuously making the change of Taiwan to grey instead of blue. Arguments can be seen in the file summaries, but in essence they say that as Taiwan isn't under the control of China, it shouldn't be coloured in. My argument is that the UN recognises the One-China policy (like every country in the world, including China and Taiwan) and recognises the PRC as that China. This is the situation for all similar areas on the map as well, each state is coloured in as much as the UN recognises them to cover, with Somalia including Somliland, Serbia including Kosovo, and Morocco not including the Western Sahara. It's anomalous to just change Taiwan. I took this to Commons:Administrators' noticeboard/User problems, and was informed it belonged here. Any opinions would be appreciated. Cheers, Chipmunkdavis (talk) 04:03, 20 November 2012 (UTC)

 Info As a third party, I reverted the picture to the version supported by Chipmunkdavis (talk · contribs) due to the amount of arguments being brought up for having Taiwan marked in blue — the other party in this edit war seems to be sticking to its mind for emotional reasons only. I have also protected the image against re-uploads, and am awaiting a peaceful ending to this discussion. odder (talk) 06:15, 20 November 2012 (UTC)

IMHO, there should be 3 colors in this map: members, non-members, territories considered as part of a member state, but non controlled by it (i.e. Taiwan, Kosovo?). I think 2 different shades of blue would appropriately show the distinction. This seems fair to me. Yann (talk) 09:17, 20 November 2012 (UTC)