User:Tomos/Legal discussions on Japanese Wikipedia

Note:

This is my personal opinion, and I am not representing Japanese Wikipedia in anyway here (that is why this page is a subpage under my user page). But my hope is to inform of wikipedians who are interested in these issues and who cannot read all the discussions in Japanese. (Even for native Japanese speakers, the discussion is sometimes hard to follow.)

I do not ask strict compliance to GFDL regarding the use of the text I wrote on this page. Not copying page history when translating it, for example, is no problem.

Also note that I am not a lawyer or a law school student. Terminologies and judgments may be incorrect.

Your input is very welcome - I am interested in how other language-wikipedias are doing on these matters. I am also interested in general opinions as well.

Current Topics

Fair use (Japanese equivalent of it)

There are a number of provisions in Japanese copyright law to limit copyrightholders rights. The general public can use copyrighted works in certain ways in certain situations.

For example, the following uses are legal.

Quotation following fair custom
Noncommercial (photo) reproduction of public arts

Can we release those items as GFDL? That's one of the questions. And, like Jimbo suggested on the mailinglist, another question is to what extent we should make use of fair use - it is something that other people cannot use based on GFDL (less "free"), and it is sometimes very difficult to judge if a particular image or quote is a fair use or copyright violation (= some legal risk for administrators).

The noncommercial nature of the exception for public arts is a problem as GFDL contemplates commercial use. en:User:Fred Bauder

Current proposal on the table include banning all kinds of quote or create a very conservative quotation guideline so that we do not have to discuss legality of individual quotes everytime there is something potentially problematic.

Sounds like you have a problem with fussiness. Brief quotes, at least of public figures, are generally ok. (At least under customary American usage). Quotes of passages from literary works generally are done with permission of the copyright holder. en:Fred Bauder

Trademark

Japanese trademark law (article 37) prohibits giving/ distribution of trademarks to let others use it for infringing use.

This seems to be in conflict with the general provision of the GFDL that seemingly allow any commercial use of the content upon certain conditions (such as perservation of history section). Does that mean we cannot use any trademark on japanese wikipedia?

Trademarks v. copyright

Trademarks are not the same as copyright. They can only be infringed if they are used in some way that dilutes the trademark, that attempts to pass off something else as being under the trademark that was not made by the same source or otherwise confuses the market. Wikipedia projects are information resources and documenting trademarks is a legitimate use of an encyclopedia. Does this mean that the GFDL gives anyone permission to use trademarks in violation of trademark law? No. If someone does that are they violating the GFDL? No, they are violating trademark law. They are not copying the trademark from Wikipedia but directly from the manufacturer/rights holder. No trademark rights are granted to Wikipedia by use of such marks (much like fair use). This is generally the analysis that would be used in the U.S. and other common law countries. I do not know if the legal reasoning would be similar in Japan. — Alex756 | [http://meta.wikipedia.org/wiki/User_talk:Alex756 talk] 07:41, 26 Mar 2004 (UTC)

GFDL and Wikipedia in general

This is a very broad topic.

What do "Document," "copyright notice," "title page," "license notice," "history," and other things mean in Wikipedia's context?

Is there any "right" way to interpret how the license apply to GFDL?

Depending on the interpretation, the following actions may or may not become legal (GFDL-compliant).

Copying and pasting from one page to another (simple moving of contents, use of boilerplate text, use of tables& standard format templates developed via Wikipedia project)
Copying an image from other language-wikipedia
Merging two articles when they are overlapping
Dividing a long article into two or more different articles
Archiving a long discussion into other pages
Translating an article from one to another
Is displaying an image in an article okay in terms of GFDL (is it an aggregation?)
After deleting a page for copyright infringement, is it okay to copy and paste the page history of the page, and then copy-and-paste a version of that deleted page as a new page, with the copied history ? (This is possibly a way to deal with copyright infringement).

Choice of law and jurisdiction

Should we just follow California law and ignore Japanese law?

Are we risk-free from any lawsuits in Japan or in Japanese laws?

Can we declare (like some license or terms of use does) the choice of law and jurisdiction for legal troubles related to Japanese Wikipedia? If so, which ones are better?

Ongoing understanding is that because many postings are made from Japan mainly for Japanese recipients. (This is not necessarily a bad thing. For example, when a Japanese person is defamed in an article in Japanese Wikipedia, we have legitimate reason to delete such a material).

The ways to declare choice of law and jurisdiction are still under discussion.

Some pointed out that American laws and courts are riskier than Japanese ones. While Wikimedia Foundation should make choices regarding troubles involving Wikimedia Foundation, Japanese Wikipedians would want to make different choices, if possible.

We also assume that Americans can sue Japanese Wikipedians based on American law. Non-japanese may seek copyright protection based on Japanese law (because of Berne convention).

Disclaimer

Is disclaimer viral? Can downstream users potentially get rid of disclaimer? What should and can we include in the disclaimer?

Contracting and Incorporation

How can we make a contract as a Japanese Wikipedia? Do we need Jimbo's permission everytime? Is it better to create some non-profit organization for Japanese Wikipedia?

Currently, I am doing all the permission stuff with external bookseller sites. But is this a legally valid contract/ permission? Can they possibly claim one day that our links are bringing too much customers and Wikimedia Foundation is liable for that? Is this permission invalid for other Japanese Wikipedians?

In drafting Disclaimer, Terms of Use, Submission Standards, etc. how can we make them legally effective?

Not so current topics

General legal risk

This is not a very "current" topic.

Are wikipedians risk-free?

Are administrators (sysops) legally risk-free?

Our ongoing assumption is that we could legally be held responsible for what we have done, or for what we have chosen not to do.

Deletion is particularly tied to legal liability, according to the ongoing understanding. Administrators, upon proper notice, bear the responsibility to delete pages containing illegal content. We have been discussing copyright violation, defamation, obscenity, privacy invasion, and some other legal matters related to contributions made to Japanese Wikipedia. If administrators keep potentially illegal materials on Wikipedia, with the knowledge of the potential illegality, AND if the material is indeed found to be illegal in the court, the administrators might have to pay compensation.

Deletion and GFDL

Once upon a time, there was a practice of "reconstruction," which meant deleting a page and copying-and-pasting the latest non-infringing version of the deleted page.

It was pointed out on wikipedia's mailing-list that this is a violation of the GFDL.

We stopped doing this, and all versions are deleted when there is one or more versions in the article history which is potentially in violation of others copyrights.

It also means that we have to delete a page with long history of revisions, if one version is in violation. This is a source of pain for many, since many pages, including the main page are now found to contain potentially infringing material in its history.

There was also a case of intentional copying-and-pasting of infringing materials. Some allege that that act was to eliminate certain problematic pages dealing with porno stars and other sex-related topics.

External links

Can we hyperlink to external web sites without their permission?

This might sound like an absurd question, but in Japan, many (really many) sites have explicit "link policies." Many Japanese think this is an absurd custom, and many think this does not have any legal effect/ground. But we are currently very cautious in linking to external sites.

Sites having link policies include governmental, non-profit, individual, as well as for-profit sites. Policies vary depending on sites - some require prior permission to link, and the request of the permission may involve specification of purpose of the link, identity of the applicant, etc. Others ask reporting after the act of linking. These policies often include designation of which pages one can link to (most often the main, front page of their web sites, and nowhere else).

There have been some cases where companies with link policies issued what are seemingly legal warnings to some site owners whose sites contain many links in violation of those link policies. None, except for one, was brought to the court (because the parties settled or such claims were withdrawn).

The one exceptional case have been fought between a major newspaper company (plaintiff) and another for-profit company (defendant). The defendant is selling a service of delivering linked headlines that its clients can display on their site - and those headlines go to news articles on the third party (Yahoo! Japan)'s site. The third party site contains some newspaper articles that are purchased for a fee from the plaintiff. The defendant makes money based on advertisement inserted in between headlines.

The question, therefore, is if Japanese Wikipedia also have to respect link policies of other sites.

Some suggested we should ignore such legal risk because some companies and others will do anything to pursue their interest, including suing Wikipedia based on absurd argument.

(The first verdict was in March 2004, and it rejected the argument that the delivery of linked headlines is an infringement of the newspaper company's copyright, pointing out that headlines are not creative enough to be copyrighted. The newspaper company announced that it will appeal.

It seems that there are some opinions suggesting that linking and copying headlines cannot be a violation of copyright, but could constitute tort, and the company would make that argument in the next round. If that is the case, site administrators may be obligated to remove certain links upon request of the site owners of the linked pages, or the admins would face legal charges.

However, the court clearly stated that the defendant's action cannot be understood as tort unless there is an intention to harm or to make an unjustifiable profit. )

General background

Japanese Wikipedia became active in mid-January 2003. In spring of 2003, some administrators were selected among those Wikipedians. There was some discussions on legal responsibility of administrators, choice of law, etc.

Copyright issues are discussed constantly. For the first few months, there were mostly cases of dead copying. These days, we are discussing the legality of summaries, transformative uses, and other very subtle uses. Is it a copyright violation if a Wikipedian posts a lecture note of a class he attended without professor's permission? Is it a copyright violation if a selection of facts is copied when the selection can be deemed creative? Is it a violation of copyright if two or more texts are mixed and posted?

There was a long discussion regarding alleged obscenity material (about a picture of clitoris and female genital). (Summer of 2003) This was the first item where an item was deleted without unanimous agreement (one user did not agree that it was obscene).

There was a big debate on legal risk surrounding the external linking. (Fall of 2003)

Related to this concern, we are currently using ISBN links only with the sites which gave us explicit permission via email.

There was a long discussion regarding alleged defamation. (Winter of 2003 to 2004)

There has been a long discussion regarding GFDL, copyright, and many other legal issues (listed as current topics above). Related to these discussions, there are some drafts for Japanese versions of en:Wikipedia:Terms of use, en:Wikipedia:Submission Standards, en:Wikipedia:General disclaimer, en:Wikipedia:Copyright, etc. Since the discussion was so complicated and in detail (especially the part which discussed various potential interpretations of GFDL and their respective consequences), we are having more plain discussion with more participants with the same topic, so that we can have broader concensus.

Difference in policies and procedures

There are a few major differences between en. and ja., in my personal opinion, that deserve mention here.

One is that we do not assume that we can interpret GFDL liberally. I remember Alex pointed out [1] that American courts are not very strict in interpreting contracts so as long as we follow the spirit of it the GFDL, we are in compliance. This argument may not stand in Japanese court, so Japanese wikipedians are careful not to violate the letter of the GFDL.

Another is that we do not have the ground to legally keep copyright violation in the past version. English Wikipedia uses "Title 17 United States Code § 108 archive notice" (referred in Terms of Use) and claim that past versions are not for general use or distribution, but only archival copy for internal use. We do not have Japanese equivalent of that in our drafts. So, when there is a potential copyright violation at en., people can edit and make it okay, but at ja., the whole article has to be deleted.

Third, my impression is that there is a rather widely-held agreement that we should not take legal risks regarding Japanese Wikipedia - this means things like:

Deleting materials that is not clearly but possibly illegal
Accepting certain inconveniences
Getting permissions from outsiders

Discussions of legal matters and deletion-related issues are mostly done by a limited number of administrators. It is somewhat of a big burden for some administratos. There is rarely a disagreement, perhaps because of the general concensus to minimize legal risk.

Fourth, most decisions are based on consensus. It is not even a rough consensus, but the consensus without any opposition. Deletion, blocking, and other decisions are mostly made through this way. If this sounds puzzling, unrealistic, or otherwise needs any explanation, I would point out that people have an assumption that we need to achieve a consensus, or things do not move on. When there is such a shared awareness, that would prompt us to find reasonable compromise and mutual understanding through discussion. It may also be inhibiting some to express their minority opinions vocally, because holding on to minority opinion is not going to bring things forward.