As per Wikimedia Licensing Policy a Wikimedia site is to either have an Exemption Doctrine Policy (EDP) which regulates when Fair use media might be used there, or do not have any unfree media in it. Since Wikimedia instance of Phabricator AFAIK does not have an EDP, the media in https://phabricator.wikimedia.org/macro/ and possibly other places (there already was a discussion concerning avatars IIRC) shall either be deleted, an EDP shall be developed (though even best FURs are probably to not be able to justify memes and other similar stuff), or/and for those media which are actually free — proper attribution shall be provided.
|Open||None||T87268 Copyright license and attribution issues (tracking)|
|Declined||None||T128771 Phabricator Macros and other media are to have clear copyright status|
@Base: I did read the description. My argument is simply that at least some of the content in macros is original work properly and freely licensed by myself. Disabling macros would remove access to this free content so that is not an acceptable solution. If we need to write an EDP for phabricator content, so be it. And if there is inappropriate use of copyrighted work then we should remove it, however, memes and image macros seem to me to be fairly clear examples of fair use.
Another thing, I am not sure that phabricator counts as a wikimedia project in the same way as, say, wikinews does. It's an internal use tool for the wikimedia developer community and not really intended as a very general educational resource.
For example testwiki is not a very general educational resourse either, but it is still a wikimedia project. I do not see phab using another cms changing much. It could be arguable if phab were only accessible for logged in people (at least that was kind of an argument I heard on otrs wiki where people disregarded licensing policy as well), but it is not.
I haven't checked with the board or legal, but I'm pretty sure when it comes to legal compliance, I bet project can be pretty safely interpreted to mean anything the foundation hosts on their servers.
Although @ZhouZ did assign this in the legal project over a and year and half ago with no response from anyone within the legal team…
It is a bit of a stretch to argue that it isn't a Wikimedia project, indeed.
Anyway the only position I feel strongly about is that properly licensed free content should not be removed. It would appear to me that the way forward is:
- Come up with an Exemption Doctrine Policy and exempt the stuff which is fair use.
- Remove improperly licensed content that does not warrant an exemption (and this can happen concurrently with 1.)
I am definitely not a lawyer and this opinion doesn't represent an official opinion of the foundation. I have no idea what WMF-Legal would/will have to say about this, however, after re-reading Wikilegal Primer on U.S. Fair Use I do believe that most memes are fairly strong candidates for fair use protection, at least in the US, This is especially due to the following:
- Transformative Purpose - Clearly memes serve a different purpose from the original - usually the primary purpose is simple amusement.
- Size and Quality of Reproduction - usually reduced size and quality compared to original
- Non-commercial use - they are not in any way commercial.
- Portion used - Memes might remix art or photographs but often that is only a small part of the overall image.
- Market effect - Unlikely to affect the original market for the original content in any way.
The licensing policy actually doesn't say anything about Wikimedia sites. It talks about "projects", which it defines as "A specific Wikimedia Foundation project in a certain language or a multilingual project, such as English Wikipedia, French Wikisource, or Meta." If you follow the link trail (which is not necessarily authoritative), you end up with https://wikimediafoundation.org/our-work/wikimedia-projects/ which is a list of wikis. Alternatively, if you follow common sense, it's clear the intent behind thee licensing policy is to facilitate content reuse ("Whereas the mission of the Wikimedia Foundation is to "empower and engage people around the world to collect and develop educational content under a free content license"). Phabricatory content is not meant for external reuse, so that concern doesn't apply. (Just like it doesn't apply to any number of other things, e.g. lists.wikimedia.org content.)
So IMO if someone feels Phabricator should count as a "project" for the purpose of the licensing policy, the onus is on them to seek clarification from the Board and demonstrate it. Until/unless that happens, I'd decline this task.
BTW the spirit of macros is to have memes, for addition, not in high quality. Simple graphics and memes in most countries do not fall under copyright and so this does not require any kind of attribution, so, no problem.
To highlight this, we could just adopt the Creative Commons Public Domain Mark 1.0. Please read its statement that is quite simple and solving.
In short, I've added this comment below a couple of macros I've created:
This macro has a very low threshold of originality and so it reasonably does not fall under copyright. So it's considered in the public domain.
Public domain go brrrrrr!
d. Non-text media: Non-text media on the Projects are available under a variety of different licenses that support the general goal of allowing unrestricted re-use and re-distribution. When you contribute non-text media, you agree to comply with the requirements for such licenses as described in our Licensing Policy, and also comply with the requirements of the specific Project edition or feature to which you are contributing.
While "Project" is still not defined, it is used throughout the Terms. If it were interpreted strictly to mean "just the wikis", then most of the rest of the Terms wouldn't apply to Phabricator either, and I doubt that was the intention.
The statement that Simple graphics and memes in most countries do not fall under copyright is without basis in any country's copyright law, and certainly not US law.
list of macros I created:
bikeshed - By Wester, CC BY-SA 2.0 BE, via Wikimedia Commons
flowchart - unknown
hasharrabbit - By @hashar
hulk - fair use in US I would say, but I just disabled it, but that does not mean it is deleted completely
cathug - has "gifak.net" water mark, I like it, do I need to disable it? - disabled
progress - too trivial for copyright? pretty sure I took it from commons
ostrich what ?
seal of approval ?
tech barnstar - import from commons afair
vote cat - own work, collage, if I can PD my own work even if I used elements from elsewhere, I hereby did it.
wikilove - I don't really remember. Wanna send images through reverse image search?
|Macro||Apparent copyright status|
|ambiguitytape||Unknown, likely unattributed copying|
|antoine-approve||Own work, default CC-BY-SA-3.0|
|asd||PD-ineligible, attributed to https://commons.wikimedia.org/wiki/File:Asd.gif|
|bikeshed||Previously-unattributed copying from https://commons.wikimedia.org/wiki/File:Station_Oudegem_-_Foto_3_(2009).png (CC-BY-SA-2.0-be)|
|bite-my-patch||Non-free derivative work of non-free television screenshot|
|carltondance||Non-free gif of television show|
|cat-strawberry||Unknown (own work?)|
|catbowtie||Unknown (own work?)|
|challenge-accepted||Non-free gif of television show|
|dcops||Text is not protected, source for handcuffs is unknown. Looks to also be used by some social media pages about police, so...|
|facepalm||Previously-unattributed copying from https://commons.wikimedia.org/wiki/File:Facepalm_(7839341408).jpg, no idea what the copyright status of the stained glass is (splitting hairs, I know)|
|farmer||Previously-unattributed copying from https://commons.wikimedia.org/wiki/File:Farmer,_Nicaragua.jpg (CC-BY-SA-2.0)|
|flowchart||first put on the Internet by http://highscalability.com/blog/2010/7/11/so-why-is-twitter-really-not-using-cassandra-to-store-tweets.html, may or may not be protected|
|full-steam-ahead||https://commons.wikimedia.org/wiki/File:Ribble_Steam_Railway_-_No_6_and_Princess_(Courageous).JPG (CC-BY-SA-4.0/GFDL 1.2+)|
|hasharrabbit||Ambiguous, should have a license stated|
|macro-deployed||Unattributed, derived from PD-USGov https://commons.wikimedia.org/wiki/File:Athena_1_rocket_launching_from_Kodiak_Island.jpg|
|opcache-was-here||Previously-unattributed derivative of https://commons.wikimedia.org/wiki/File:Kilroy_Was_Here_-_Washington_DC_WWII_Memorial.jpg. As a concept, Wot/Kilroy is in the public domain. The WWII memorial representation probably did not introduce sufficient new copyrightable authorship for it to be protected.|
|ostrich-what||Previously-unattributed copying from https://commons.wikimedia.org/wiki/File:Ostrich_head_04.jpg (CC-BY-SA-3.0)|
|over9000||Non-free television screenshot|
|peanut||Non-free commercial image per watermark (Pitterpatterfurryfeet/Caters News Agency)|
|scap-book||Previously-unattributed derivative of https://commons.wikimedia.org/wiki/File:Sus_scrofa_avionica.png, rest is not protected by copyright|
|seal||I am the copyright police, here to get you (image is CC-BY-SA-3.0)|
|seal-of-approval||KYM says https://www.flickr.com/photos/rickpics/1230599764/in/gallery-23882161@N03-72157622641251326/ is the source, which is All Rights Reserved|
|server_kitty||Previously-unattributed copying from https://commons.wikimedia.org/wiki/File:Computer-kitten.jpg|
|shits-on-fire||Previously-unattributed copying from https://commons.wikimedia.org/wiki/File:Agnolo_Bronzino,_ritratto_di_ragazzo.jpg|
|slowlydisappears||Non-free television gif|
|southparkfan-approves||Derivative work of non-free television screenshot|
|tech-barnstar||Previously-unattributed copying from https://commons.wikimedia.org/wiki/File:Barnstar_-_technical_works.svg (CC-BY-SA-3.0)|
|therockapplauds||Non-free movie/television gif|
|thumbs-up-down-left-right||Non-free television gif|
|tiger-wearing-a-sombrero||Deleted from Commons, see https://commons.wikimedia.org/wiki/Commons:Deletion_requests/File:Stuffed_tiger_wearing_a_sombrero.jpg|
|toomanybugs||Unknown (own work?)|
|toomanybugs2016||Unknown (own work?)|
|votecat||Actually looks like it came from https://commons.wikimedia.org/wiki/File:Vota_cat.jpg, which appears to be derived from non-free stock images.|
|whereismypopcorn||Non-free television screenshot|
|wikilove||Previously-unattributed copying from https://commons.wikimedia.org/wiki/File:Soapy_heartonly.png (CC-BY-SA-3.0)|
|zoidberg-heckle||Non-free television screenshot.|