French Author Plagiarizes Wikipedia; Does That Mean His Entire Book Is Now CC Licensed?

from the a-legal-test dept

PrometheeFeu alerts us to a fascinating situation happening in France. Apparently, a successful French author, Michel Houellebecq, recently came out with a novel, La Carte et Le Territoire. However, it turns out that Houellebecq copied decent chunks of three separate Wikipedia articles in the novel, without any credit or indication that he was quoting another source. This is what is normally referred to as plagiarism -- or, in some views, sampling. This isn't all that surprising, and we hear stories of plagiarism in books all the time. In fact, we tend to think that people get way too upset over such things in books. After being called on it, Houellebecq appears to have admitted to copying those sections.

However, what makes this case more interesting, is what came next. Some folks realized that Wikipedia articles are licensed via a CC-BY-SA license, which in real terms says that you are free to share and remix the work, so long as it's with attribution and (most importantly):
"If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one."
If you're paying attention, you'll realize that it appears Houellebecq's La Carte et Le Territoire appears to "build upon" the Wikipedia works, which would then mean that his work, as well, must also be available under such a license. Thus, they've created a PDF version of the book -- with the proper Wikipedia references added back in -- and put it up for download under the very same CC-BY-SA license.

The question now is whether or not the author or his publisher will take legal action -- and whether or not the reading of the Wikipedia CC-BY-SA license is accurate. It certainly seems like a pretty strong argument can be made in favor of those now sharing the work. The terms of the Wikipedia content are clear, and thus, in using that content, it does appear that Houellebecq and his publisher may be required to abide by the terms of the license. Of course, there are other questions raised by this as well: such as the enforceability of a license that the person might not have read or understood. Before people automatically assume those posting the PDF are in the right here, remember all those stories we've discussed in the past about questionable end user license agreements that people agree to on websites without ever having actually seen them. In those cases, many of us feel that such licenses should not be enforceable. Is the same thing true for a Creative Commons license?

Update: As noted in the comments, the publisher has said it will take legal action against those who posted the work, though it's unclear if such proceedings have started yet.


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  1.  
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    Jay (profile), Nov 29th, 2010 @ 10:07am

    Well damn...

    Looks like all of the people involved are stuck...

    *Puts on shades*

    Between a Rock and a hard place.

     

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  2.  
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    darryl, Nov 29th, 2010 @ 10:10am

    No it wont mike, CC is not GPL

    The answer is no, for some reason the CC is not the GPL and for the same reason it is not viral. But nice FUD piece. :)

    You see mike, one is a CC license, and one is a GPL license, I dont think the terms of the GPL applies to the CC.

    But maybe im missing something, or maybe im not ;)

    Are you implying that anything you use from the CC has to be licensed under the CC ? does that not defy the whole idea of the CC.. ??

     

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  3.  
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    crade (profile), Nov 29th, 2010 @ 10:13am

    These "license contracts" always boggled my mind.
    How can you have a contract with no witnesses and no agreement?

     

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  4.  
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    crade (profile), Nov 29th, 2010 @ 10:14am

    Re: No it wont mike, CC is not GPL

    There are different types of CC licenses. Some are more "free" than others. This one seems to come with the restriction quoted.

     

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  5.  
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    Anonymous Coward, Nov 29th, 2010 @ 10:15am

    Sarkozy will go nuts on this one.

     

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  6.  
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    darryl, Nov 29th, 2010 @ 10:19am

    He did not "alter, transform or build upon" the wiki stuff,

    > copied decent chunks of three separate Wikipedia articles > in the novel, without any credit or indication that he
    was >quoting another source.

    "If you alter, transform, or build upon this work, you may distribute the resulting work only under the same or similar license to this one."

    Quoting directly, and including quotes in another work cannot be classified as any of:
    alter
    transform
    build upon

    You might think 'build upon' but no, he is using the quotes to 'build upon' his own work.

    He did not take a wike article, and build it into his own article, he build his own article, and used the quotes to build upon it.

    So he has not breached the license condition in any way, im sure he can sleep well tonight, and not worry about a thing..

     

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  7.  
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    out_of_the_blue, Nov 29th, 2010 @ 10:23am

    Why, it's GREAT for the author! Publicity and free distribution!

    Following Mike's model, even if inadvertently. All Houellebecq has to do now is have some T-shirts printed to sell on-line, perhaps: "Le Auteur et Plagiaire, sans pareil!"

     

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  8.  
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    crade (profile), Nov 29th, 2010 @ 10:25am

    Re: He did not "alter, transform or build upon" the wiki stuff,

    If you read the article, he wasn't quoting.
    "without any credit or indication that he was quoting another source"
    Quotes have references.. or at least quotation marks or some sort of indicator.

     

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  9.  
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    Anonymous Coward, Nov 29th, 2010 @ 10:27am

    Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    darryl is blatantly wrong twice in one morning?

    He's on a roll!

     

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  10.  
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    Anthony (profile), Nov 29th, 2010 @ 10:27am

    For more fun, consider 17 USC §103(a)

    (a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully (emphasis added)
    That might be a problem for them. Well, in the US, at least.

     

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  11.  
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    crade (profile), Nov 29th, 2010 @ 10:30am

    Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    I didn't say he was blatantly wrong.. Just offered up an opposing theory and a reason for it :)

     

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    darryl, Nov 29th, 2010 @ 10:30am

    Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    so he was either quoting from another source or he was not, but he was quoting, mike said so.. and for once Mike is right.. but he missed the bit about there being no restriction to quoting, you cant alter, transform, or build upon, but thats ok, because he did none of those things.


    where does it say that quoting is not allowed, even quoting without reference.

    alter
    transform
    build upon

    When you quote someone, you do not alter, transform, or build upon, what you are quoting.

    As I said, all he did was use quotes from a source to build upon his own work..

    So again, where does it say you cannot quote wiki ?

     

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  13.  
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    Anonymous Coward, Nov 29th, 2010 @ 10:30am

    Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    A troll roll?

     

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    Anonymous Coward, Nov 29th, 2010 @ 10:32am

    Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    Of course he is, but it is entertaining.

     

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  15.  
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    crade (profile), Nov 29th, 2010 @ 10:34am

    Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    Well, I don't know about legally, but to me, if your "quote" is indistinguishable from the text you wrote yourself, it deffinately isn't a quote.

     

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    darryl, Nov 29th, 2010 @ 10:36am

    Re: Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    In that case, by your reasoning,

    he did not do any of the following

    Alter
    Transform
    Build upon
    Quote

    So on what grounds does Wiki have a case ?

     

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  17.  
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    crade (profile), Nov 29th, 2010 @ 10:40am

    Re: Re: Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    Not sure what you mean, the article says that they are claiming "Build upon". My reasoning about quotes has no bearing on whether or not they have grounds to claim the book builds upon their work.

     

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  18.  
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    jakerome (profile), Nov 29th, 2010 @ 10:41am

    Fair use?

    Well, wouldn't the use of a few short sections be considered fair use, and therefore doesn't depend on the CC-BY-SA license. After all, CC doesn't bestow any additional rights upon the works.

     

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  19.  
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    Travis Miller (profile), Nov 29th, 2010 @ 10:44am

    Turnitin

    You know the database at turnitin.com must have all kinds of these unattributed Wikipedia quotes in its papers. Heck, I wonder how often students are accused of plagiarism by them just for quoting the same wiki article as someone else.

    Seems to me that they need to open up their database or their business is illegal.

    ;)

     

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  20.  
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    Richard (profile), Nov 29th, 2010 @ 10:45am

    Re: No it wont mike, CC is not GPL

    I dont think the terms of the GPL applies to the CC.

    But maybe im missing something, or maybe im not ;)


    The particular cc license in question has similar provisions to the GPL. This was made clear in the article.

    The license in question (CC BY SA) is similar to the GPL in requiring redistribution under the same terms - and adds a requirement of attribution.

    By my reading there are only two possible outcomes here.

    1) The book is cc licensed.

    2) The usage of the book breaks the cc license (no attribution) and therefore the author has no license, all copies of the book should be pulped and statutory damages are due. The option that "I didn't understand the license so it doesn't apply" in incredible here since the default for copyright is "all rights reserved" not "public domain".

     

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  21.  
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    Pouet, Nov 29th, 2010 @ 10:47am

    More info

    The editing company has annonced a few days ago that they are going to sue those who have shared the pdf, you might want to update your article.

    Source : http://www.numerama.com/magazine/17454-houellebecq-sous-licence-libre-flammarion-attaque-et-c-est-ta nt-mieux.html

     

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  22.  
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    Berenerd (profile), Nov 29th, 2010 @ 10:48am

    Re: Fair use?

    Fair use would be the book was talking about those quotes specifically and I believe there also can be no commercial gain for such, though I might be thinking wrong on that.

     

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  23.  
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    crade (profile), Nov 29th, 2010 @ 10:49am

    Re: Re: No it wont mike, CC is not GPL

    What difference does the default make as to whether he understands the license? Knowing that it isn't the default is a giant leap away from understanding the license.

     

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  24.  
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    Richard (profile), Nov 29th, 2010 @ 10:49am

    Re:

    These "license contracts" always boggled my mind.
    How can you have a contract with no witnesses and no agreement?

    If the license restricts your rights compared to the default then I would agree with you. However a cc license extends your rights relative to the default (all rights reserved) so I see no problem with it.

     

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    darryl, Nov 29th, 2010 @ 10:49am

    Re: Re: Re: Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    fair enough, but he did not 'build upon' the wiki stuff, and the article says quoting.

    To build upon something would mean you take the entire wike article, and build upon IT, you make it better, bigger, more accurate, you modifty if, by adding to it.

    He did not do that, he did not create a competing article that would compete against the wiki info.

    He just used the quotes from wike, to build upon his own work, his book.. Not the other way around.

    And you would have a difficult time trying to show that he built upon the wiki info in any way.

    so he has not breached any of the CC license conditions. As they state them.

    You might want to look up what the CC defines as "built upon" as terms like that legally have a very concise definition.

    Im sure, without checking it means build upon the wiki info, not use the wiki info to build upon your own independent work.

    Plus the factual information from an exclopedia, is public domain, it is hard to claim copyright or such for facts and public facts, and in that case he used quotes, and not the entire article, so 1. he did not build upon the article
    2. he has a very good fair use case.

     

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  26.  
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    crade (profile), Nov 29th, 2010 @ 10:51am

    Re: Re: Re: No it wont mike, CC is not GPL

    Assuming ignorance of the license terms were a valid legal excuse (good luck with that), I would think "it says CC so I though it was ok" would be perfectly credible

     

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  27.  
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    Richard (profile), Nov 29th, 2010 @ 10:52am

    Re: He did not "alter, transform or build upon" the wiki stuff,

    he build his own article, and used the quotes to build upon it.

    So he has not breached the license condition in any way, im sure he can sleep well tonight, and not worry about a thing..


    I suggest you take another book from this author, extract similar sized passages, insert them into your own book without attribution and see how long it takes for his publisher to sue.

    The only possible defence this guy has is fair use/fair dealing and it doesn't sound like he has obeyed the rules for that.

     

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  28.  
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    Anonymous Coward, Nov 29th, 2010 @ 10:53am

    Re: No it wont mike, CC is not GPL

    Darryl,
    I wanted to compliment you on, what has been perhaps you most pleasant and conversation reply I've seen.
    Please don't misunderstand, I am not heckling you here. I actually have come to recognize that despite some of the nasty tirades you have provided, there does appear to be a thoughtful person at the keyboard.
    So, in summary, please continue to comment but I appreciate the mature and conversational tone over the angry and name calling one.

     

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  29.  
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    Anonymous Coward, Nov 29th, 2010 @ 11:02am

    Let's say that there actually was some code in Linux that was illegally copied from Unix. Would that mean that SCO/Novell/Attachmate/Microsoft suddenly owned Linux? Of course not. Unless the publisher explicitly released the book under the cc-by-sa license, then it's not legal to distribute the book.

    Now, this book itself may be a copyright violation for using the wikipedia material, but that does not automatically mean it's licensed under the cc-by-sa and the people trying to redistribute the book under said license are doing so illegally.

     

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  30.  
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    crade (profile), Nov 29th, 2010 @ 11:13am

    Re: Re: Re: Re: Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    Well, the article doesn't say it is a quote at all, it basically says "[there is no indication that it is a quote]".

    They seem to be claiming it breaches the license by building upon their work. I'm certainly not going to defend the "Build Upon" claim for them though I'll let someone else speak to that :)

     

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  31.  
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    Anonymous Coward, Nov 29th, 2010 @ 11:17am

    Re:

    I think Wikipedia could get an injunction against the author for copyright infringement until he removes those passages, wouldn't that be nice?

    Also they could get the author to pay statutory damages.

    About Linux, there is no one to go after even if it was infringing on something that is the beauty of distributed production you are free from those constraints.

     

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  32.  
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    Anonymous Coward, Nov 29th, 2010 @ 11:20am

    Re: Re: Re: Re: Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    "Plus the factual information from an exclopedia, is public domain, it is hard to claim copyright or such for facts and public facts, and in that case he used quotes, and not the entire article, so 1. he did not build upon the article
    2. he has a very good fair use case."

    Is public domain?
    Tell that to Britannica.

     

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  33.  
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    Anonymous Coward, Nov 29th, 2010 @ 11:22am

    Re: Re: Re: Re: Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    > fair enough, but he did not 'build upon' the wiki stuff, and the article says quoting.


    without having read the book (i am assuming you have), does this book or (at the minimum) the sections of this book stand on their own without the "quotes"?

     

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  34.  
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    Anonymous Coward, Nov 29th, 2010 @ 11:24am

    Re: Re: Re: Re: Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    "so he has not breached any of the CC license conditions. As they state them."

    Nope he breached the clause that says you need offer derivative works with the same license if you use their material, after all it is theirs it is not?

    What happen to the "if you produce it, it is yours and if somebody copy it it is stealing", you see the end result of that kind of thinking?

    I will remember your posts here and will bring them up every time you say another word about copying is theft.

     

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  35.  
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    Anonymous Coward, Nov 29th, 2010 @ 11:29am

    Re: Turnitin

    No, the attribution and share-alike parts of the license only come into play when publicly redistributing all or part of Wikipedia. You can freely make copies of and use Wikipedia for your own private purposes by the base CC license.

     

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  36.  
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    Matt Bennett, Nov 29th, 2010 @ 11:30am

    Decent chunks?

    So, "decent chunks" What does that mean? It looks to me that this is somewhere between 1 paragraph and 1-3 paragraphs, three times? Someone correct me if I'm wrong. Now, if this were an article or something, that would be quite a bit. But for a whole book, it doesn't seem like very much at all. AT what point does fair use kick in? Does the length of the section in comparison to work as a whole matter at all? If you were to ask me, it does, and in the context of the whole book this doesn't seem like so much. SO in that context, it would seem the author has a pretty good fair use claim to use that text, without the CC license "polluting" the entire work.

     

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  37.  
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    iamtheky (profile), Nov 29th, 2010 @ 11:32am

    darryl is the worst troll ever. you need to post an ad for a proper antagonist.

     

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  38.  
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    Anonymous Coward, Nov 29th, 2010 @ 11:44am

    Re: Decent chunks?

    I don't think France have "fair use".

    The actions of Michael Houllebecq are legally qualified to copyright infringement as described in Article L. 335-2 alinéa 1 du CPI : 335-2 paragraph 1 of the ICC:

    Any edition of writings, musical composition, drawing, painting or any other production, printed or engraved in whole or in part, in disregard of laws and regulations concerning author's property is a forgery and any forgery is a misdemeanor.


    http://translate.google.com/translate?u=http%3A%2F%2Ffgallaire.flext.net%2Fhouellebecq-creative- commons%2F&sl=fr&tl=en&hl=&ie=UTF-8

    Copyright is hard and it is getting harder and will maul everybody.

     

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  39.  
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    Anonymous Coward, Nov 29th, 2010 @ 11:48am

    This thread is just rich, all those copyright followers are now trying to justify one of them "stealing" from others LoL

     

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  40.  
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    Anonymous Coward, Nov 29th, 2010 @ 11:49am

    Re:

    Perhaps they used logic:

    1. CC-BY-SA says you can only distribute derived works if they are also CC-BY-SA;
    2. The book is a derived work;
    3. The book is being distributed;
    4. Therefore, the book is CC-BY-SA.

    Or, writing in a bit more formal style:

    0. cc-by-sa(WIKIPEDIA-ARTICLE)
    1. cc-by-sa(X) ^ derived-work(Y, X) ^ distributed(Y) -> cc-by-sa(Y)
    2. derived-work(BOOK, WIKIPEDIA-ARTICLE)
    3. distributed(BOOK)
    4. Therefore, cc-by-sa(BOOK)

    This means that they can distribute the book freely under CC-BY-SA.

    However, that logic is incomplete. A better logic could be:

    0. cc-by-sa(WIKIPEDIA-ARTICLE)
    1. cc-by-sa(X) ^ derived-work(Y, X) ^ distributed(Y) -> cc-by-sa(Y) V copyright-violation(Y)
    2. derived-work(BOOK, WIKIPEDIA-ARTICLE)
    3. distributed(BOOK)
    4. Therefore, cc-by-sa(BOOK) V copyright-violation(BOOK)
    5. ~cc-by-sa(BOOK)
    6. Therefore, copyright-violation(BOOK)

    Where both sides are in the wrong. The book is a copyright violation, and the copyright on it is itself being violated.

     

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  41.  
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    Anonymous Coward, Nov 29th, 2010 @ 11:52am

    Re: Re:

    I just thought that 1 would be better expressed as:

    cc-by-sa(X) ^ derived-work(Y, X) -> cc-by-sa(Y) V ~distributed(Y)

    With the same final result.

     

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  42.  
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    Optimus Prime, Nov 29th, 2010 @ 11:57am

    Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    "alter
    transform
    build upon"

    Daryl,

    Technically, taking an electronic form (wikipedia) and putting it into a printed form is transforming.

    In addition, a car turning into a robot is also transforming.

    I suspect the definition of transforming is itself transforming.

    O.P.

     

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    Matt Bennett, Nov 29th, 2010 @ 12:07pm

    Derivative

    Ok, perhaps obviously, I haven't read the french novel. But it seems pretty unlikely the whole book is "derivative" of wikipedia, or "built upon it". In fact, I'd be willing to bet that those passages could be removed wholesale from the book without substantively changing it.

    A CC license is not a disease, it's not cooties. You can just declare that the book used a passage, perhaps where it shouldn't have, and thus the entire copyright on the book is void. It doesn't work like that.

    You know how some websites say things like "you can't copy any part of the website ever, and there is no fair use, ever"? Well, just because they say that, doesn't make it true. This is a similar situation, it just happens to be the party whose saying that is someone you're more prone to side with.

    I'm not saying the author wasn't in wrong, of course he was. But it is a minor wrong, and it certainly doesn't prevent him from having a copyright on the book.

     

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    Richard (profile), Nov 29th, 2010 @ 12:08pm

    Re: Re: Re: No it wont mike, CC is not GPL

    What difference does the default make as to whether he understands the license?
    Because in this case by accepting the license you are not surrendering any rights that you would normally have expected to have.

     

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  45.  
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    crade (profile), Nov 29th, 2010 @ 12:14pm

    Re: Re:

    Well, "more restrictive" is subjective.
    it could be argued that giving someone else the ability to freely publish your work if the contract is breached is more restrictive than simply preventing you from publishing it, or giving them the ability to sue you for publishing it.

     

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    crade (profile), Nov 29th, 2010 @ 12:20pm

    Re: Re: Re: Re: No it wont mike, CC is not GPL

    How do you figure? Normal copyright doesn't give the copyright owner any sort of right to republish any work that builds upon it and attach your own copyright to it, it just lets you suppress or sue for damages.

     

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    Richard (profile), Nov 29th, 2010 @ 12:23pm

    Re: Re: Re: Re: Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    And you would have a difficult time trying to show that he built upon the wiki info in any way. so he has not breached any of the CC license conditions. As they state them.

    The point is that he has not followed the license conditions and therefore he has simply violated wikipedia's copyright.

    He used a portion of their text. Unless he used quotation marks and gave attribution and only used a very short extract then that is not fair use/fair dealing. He would therefore be in violation of a standard "all rights reserved" copyright. In that situation he would be rescued by the CC license only if he obeyed its terms. If, as you suggest, he did something different from what the license specifies then that does not mean that he is in the clear. Instead it means he cannot rely on the CC license at all and is simply in violation of Wikipedia's copyright in the ordinary way.

     

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  48.  
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    Anonymous Coward, Nov 29th, 2010 @ 12:26pm

    Re: Re: No it wont mike, CC is not GPL

    There are actually three possible outcomes:

    1) The book is cc licensed.

    2) The usage of the book breaks the cc license (no attribution) and therefore the author has no license, all copies of the book should be pulped and statutory damages are due. The option that "I didn't understand the license so it doesn't apply" in incredible here since the default for copyright is "all rights reserved" not "public domain".

    3) The usage of the passages from wikipedia constitute fair use, and the cc license need not be invoked.

    This last one is a bit of a stretch, considering the lack of attribution and the four-part test for fair use.

     

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    vivaelamor (profile), Nov 29th, 2010 @ 12:34pm

    Re: Re: Re: No it wont mike, CC is not GPL

    "3) The usage of the passages from wikipedia constitute fair use, and the cc license need not be invoked."

    Does French law even recognise fair use?

     

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  50.  
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    PrometheeFeu (profile), Nov 29th, 2010 @ 12:43pm

    Re:

    I think your reading makes the most sense. The book violates Wikipedia's copyright and the copy violates the author's copyright. Though it may be that a judge would order author and publisher to comply with the CC license and give the pdf creator a slap on the wrist.

    Your comparison with SCO is bit inaccurate though. A proprietary license says you cannot redistribute period. Not that you can redistribute only if conditions x y z are met. So giving Linux to SCO would not remedy the violation. Placing the book under CC would.

     

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  51.  
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    vivaelamor (profile), Nov 29th, 2010 @ 12:45pm

    Re: Re: Decent chunks?

    'I don't think France have "fair use".'

    I found something similar under exceptions on the French copyright law article on Wikipedia:

    3. In cases where the name of the author and the source are clearly indicated,

    a) Analyses and short citations justified by the critical, polemical, scientific or pedagogical nature of the work.


    I hope that clears it up; no attribution equals no exception.

     

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  52.  
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    PrometheeFeu (profile), Nov 29th, 2010 @ 12:56pm

    Re: Re: Decent chunks?

    You are more or less correct. France does not have fair use. There is a somewhat similar concept but it is much more restrictive.

     

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  53.  
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    Karl (profile), Nov 29th, 2010 @ 1:42pm

    Re: Re: Re: Re: Re: No it wont mike, CC is not GPL

    How do you figure?

    By default, all published works are fully copyrighted. That means that if he was ignorant of the specific CC license, he would have thought that he couldn't build upon those works at all.

     

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  54.  
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    Karl (profile), Nov 29th, 2010 @ 1:53pm

    Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    When you quote someone, you do not alter, transform, or build upon, what you are quoting.

    I don't know about French law, but under U.S. law, "quoting" definitely falls under "altering, transforming, or building upon" the work. If he'd used a Stephen King passage in his book (especially without attribution), he'd probably get his ass sued.

    On the other hand, if he was in the U.S., he would definitely have a case for "fair use" - and if his use is fair use, the use itself is exempt from copyright, including copyright licenses such as CC.

    If it's not fair use (or whatever the French equivalent is), then only two things are legally possible:

    1. His entire work is now covered under the same copyright license (CC-BY-SA).

    2. His entire work is in violation of copyright law.

    Either way, neither he nor his agent (publisher) have the legal right to sue people who share the work.

     

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  55.  
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    JEDIDIAH, Nov 29th, 2010 @ 1:55pm

    Have a seat next to Jammie Thomas

    By default, ANY derivative work is an UNLICENSED derivative work. In most cases, this means you are going to get sued by the relevant parties. You will be prevented from distributing the work in question and very hefty statutory damages will be demanded.

    This is pretty standard stuff and really has squat to do with the GPL or CC. That is why these sorts of licenses "work".

    They exploit copyright law itself.

    If you copy and publish someone else's work, that thing still remains someone else's work.

     

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  56.  
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    JEDIDIAH, Nov 29th, 2010 @ 2:00pm

    Re: Derivative

    Not quite.

    Unless you can convince some judge that this work is engaging in "fair use", it is no longer distributable the usual manner employed by Old Media.

    It's no different than if Jamie Thomas decided to create her own label and start pressing her own set of 24 infringed songs as an 80s nostalgia collection. It would be the same way even if she only included 1 of those moldy oldies and all of the other tracks were her reading the phone book.

    Sauce for the goose and all of that...

     

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  57.  
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    Karl (profile), Nov 29th, 2010 @ 2:08pm

    Re:

    Now, this book itself may be a copyright violation for using the wikipedia material, but that does not automatically mean it's licensed under the cc-by-sa and the people trying to redistribute the book under said license are doing so illegally.

    There are only three possible situations:

    1. His use of Wikipedia material is fair use/fair dealings under French law. In this case, he holds the copyright to his portions of the book, and the people who redistribute the book are infringing.

    2. His use is not fair use, but he obeys the law and releases the work as CC-BY-SA.

    3. His use is not fair use, and he tries to release the book under a different license. In this case, he is in violation of copyright law, and cannot legally sue the people who redistribute the book. Only the original copyright holder (Wikipedia) can do that - and since the PDF is being distributed in a way that is automatically granted by Wikipedia's license, those people are not infringing on Wikipedia's copyright.

     

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  58.  
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    Anonymous Coward, Nov 29th, 2010 @ 2:11pm

    Re: Derivative

    Then he should just pay 1.5 million dollars(being nice here because it is a best seller and I can only fathom how much 150K dollars would be for thousands of books already sold, lucky he is not in the U.S.A. isn't he?), get sentenced to jail suspended, be humiliated in public, be forced to apologize and promise to never do it again, all the while being called a thief, parasite, freeloader and other less flattering things.

     

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  59.  
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    crade (profile), Nov 29th, 2010 @ 2:12pm

    Re: Re: Re: Re: Re: Re: No it wont mike, CC is not GPL

    But as far as I know the punishments for infringing don't include giving up the copyright on your additions to the person whose copyright you infringed. Assuming someone is agreeing to do that is not something that is within the original terms of copyright. You could, for instance, state in your license that it is ok if you copy my article as long as you pay me 2 kazillion (yes I made this number up) dollars. I don't see how this means your license is less restrictive than the regular copyright, and so everyone automatically must understand and agree with it.

     

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  60.  
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    DogBreath, Nov 29th, 2010 @ 2:16pm

    Here's to the wonderful complexities of copyright law

    Everyone screws up now and then. This time it was a book author who didn't understand or didn't care he was using someone else's work, without following the rules laid out on how to do so in front of him. Perhaps he thought because it was "on the internet" it was "free" and "public domain". After all, a little "Judith Griggs"ing never hurt anyone, except for Judith G's internet reputation... for life.

    Creative Commons licenses are recognized in France and without the author having a Fair Use defense there, it will be interesting to see on which side the ball lands, should anyone be actually taken to court over the CC release of the book.

    The way I see it, there would be no issue here except for this one error: The author is to blame for putting these quotes into his book without reading, understanding and complying with the terms of Wikipedia's licensing to use the text, and now he is being hoisted by his own petard. Boom!

     

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  61.  
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    Mike (profile), Nov 29th, 2010 @ 2:18pm

    Re: Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    Either way, neither he nor his agent (publisher) have the legal right to sue people who share the work.

    Well I don' think that's true. If it is case 2 (his entire work is in violation of copyright law), that doesn't give anyone else the right to share (copy) the work.

    As I understand the facts as things currently stand, his work is in violation of copyright law. Period.

    He could probably negotiate a settlement by placing his work under the same CC-BY-SA license, and adding attribution, thereby bringing future copies of his work into compliance, but it seems the violated authors (wikipedia) would have to agree that was acceptable.

     

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  62.  
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    Richard (profile), Nov 29th, 2010 @ 2:23pm

    Re: Re: Re: Re: Re: Re: Re: No it wont mike, CC is not GPL

    But as far as I know the punishments for infringing don't include giving up the copyright on your additions to the person whose copyright you infringed.
    No - they demand that you destroy all copies of the infringing work.

    So you have nothing left to claim copyright on.

    Now of course, in either case you could re-publish the non-infringing part subsequently - but all the books already printed would have to be pulped and electronic copies taken down from websites etc.

     

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  63.  
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    Lawrence D'Oliveiro, Nov 29th, 2010 @ 2:26pm

    Re: How can you have a contract with no witnesses and no agreement?

     

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  64.  
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    Richard (profile), Nov 29th, 2010 @ 2:36pm

    Re: Re: Re:

    it could be argued that giving someone else the ability to freely publish your work if the contract is breached is more restrictive than simply preventing you from publishing it, or giving them the ability to sue you for publishing it.

    I don't think it works like that (maybe I wasn't completely clear in the previous post).
    The cc license says that you can republish a derivative work provided you make it available under the same (CC) terms. It is therefore up to you to do this. If you choose not to, and still publish your work under different terms, then you have broken the cc license terms. This actually does NOT give any third party the right to redistribute your work as if it was cc licensed. In that case you would be forced to withdraw you publication (and pulp any printed copies) - ie exactly the same thing as would have happened had you violated any other copyright.
    Having said that I believe that in some cases IP on infringing articles HAS been transferred to the plaintiffs - however this may be only in trademark cases (eg Bratz).

     

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  65.  
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    Richard (profile), Nov 29th, 2010 @ 2:38pm

    Re: Re: Re:

    it could be argued that giving someone else the ability to freely publish your work if the contract is breached is more restrictive than simply preventing you from publishing it, or giving them the ability to sue you for publishing it.

    I don't think it works like that (maybe I wasn't completely clear in the previous post).
    The cc license says that you can republish a derivative work provided you make it available under the same (CC) terms. It is therefore up to you to do this. If you choose not to, and still publish your work under different terms, then you have broken the cc license terms. This actually does NOT give any third party the right to redistribute your work as if it was cc licensed. In that case you would be forced to withdraw you publication (and pulp any printed copies) - ie exactly the same thing as would have happened had you violated any other copyright.
    Having said that I believe that in some cases IP on infringing articles HAS been transferred to the plaintiffs - however this may be only in trademark cases (eg Bratz).

     

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  66.  
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    crade (profile), Nov 29th, 2010 @ 3:24pm

    Re: Re: Re: Re: Re: Re: Re: Re: No it wont mike, CC is not GPL

    "So you have nothing left to claim copyright on."
    You would still have your original copy of the non-infringing portion of the work from before any infringing material was added to it to claim copyright on.

    Or even if you don't, and the entire work must be destroyed (including your original copy of the non-infrining work), some people could still view this as less restrictive than being forced to give up the copyright on the non-infringing portion of the work to someone else to do with as they please.

     

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  67.  
    identicon
    Jesse, Nov 29th, 2010 @ 3:29pm

    No doubt it is dubious to claim that EULAs that aren't even read are enforceable. However, the ruling on this action will be interesting either way. Either they uphold the CC license, and it is a "win" for copyleft, or the EULA is unenforceable and it sets a precedent for future arguments on the other side of the copyfence.

    Or...as I expect...the courts will make us a nice double standard, where only the "old guard" ever gets a chance. That is, copyright is always right and any new model loses by default.

     

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  68.  
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    crade (profile), Nov 29th, 2010 @ 5:55pm

    Re: Re: Re: Re:

    Right, so they would be overstepping by assuming he agreed to anything in the CC contract, as opposed to just infringing on the regular copyright as they have done.

     

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  69.  
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    Anonymous Coward, Nov 29th, 2010 @ 6:40pm

    Re:

    Actually... no.

    We are trying to "justify" using someone elses work and then suing others that re-use yours.

    Feel free to chime in :)

     

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  70.  
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    Anonymous Coward, Nov 29th, 2010 @ 6:44pm

    Re:

    Heh. I for one would welcome an EULA is not enforcable.... cant think I have ever read the Copyright Act so it too would be un-enforcable.

    Basically the Publisher should get out now before he has to choose (legally) between a will-full infringement suite with mass distributed damages.... and making copyright un-enforcable if you dont read the warnings :)

    Oh my... Lions, Tigers.... and a Bear on a Ball Juggling.

     

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  71.  
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    Anonymous Coward, Nov 29th, 2010 @ 8:00pm

    Re: Re: Re: Re: No it wont mike, CC is not GPL

    Does French law even recognize CC license?

     

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  72.  
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    darryl, Nov 29th, 2010 @ 8:03pm

    Re: Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    A car turning into a robot is transforming.

    But text, turning into text is not transforming, it did not even "turn into" other text, it was a quote, (unreferenced) but it still did not transform it, or any of those other things.

    And if the CC ment you could not copy it, they would have said you cannot COPY it.

    But they omit that, and for good reason.

    How often have you seen a Wiki page displayed on a news program or a show, that is not breaching the CC license.

    BTW:

    You would expect a license called "creative commons" to be a license to, you know, have a commons from which you can create thing from !!

    I dont know, but that was it idea of the CC to begin with was it not.

    Not for it to be a restrictive license, to allow someone to cash in on someone elses effort

    Comments ?

     

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  73.  
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    darryl, Nov 29th, 2010 @ 8:05pm

    What is the CC if it is not for this purpose ?

    You would expect a license called "creative commons" to be a license to, you know, have a commons from which you can create things from !!

    I dont know, but that was it idea of the CC to begin with was it not?

    Not for it to be a restrictive license, to allow someone to cash in on someone elses effort

    Comments ?

     

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  74.  
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    Rekrul, Nov 29th, 2010 @ 8:29pm

    Re: Derivative

    Ok, perhaps obviously, I haven't read the french novel. But it seems pretty unlikely the whole book is "derivative" of wikipedia, or "built upon it". In fact, I'd be willing to bet that those passages could be removed wholesale from the book without substantively changing it.

    And what do you think the chances are that the publisher will admit that they made a mistake and remove those passages? My guess is that they'll argue that they're entitled to use them, while ignoring the CC license. In other words, they probably think they're entitled to special treatment because the quote came from a source that was 'just a web site'.

     

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  75.  
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    Transbot9, Nov 29th, 2010 @ 9:30pm

    Re: What is the CC if it is not for this purpose ?

    Creative Commons is designed as a license to expand usage beyond what is allowed to by copyright. What is allowed depends on which CC license used, and how much freedom the artist/creator chooses to allow you.

     

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  76.  
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    Karl (profile), Nov 29th, 2010 @ 9:50pm

    Re: Re: Re: Re: Re: He did not "alter, transform or build upon" the wiki stuff,

    hat doesn't give anyone else the right to share (copy) the work.

    That right is granted by default. As a copyright owner, you have the legal right to stop people from doing that. But if you're not the copyright owner, you don't have that right. That's why DMCA takedown notices can only be sent by the copyright holders (or their agents), not third parties.

    That's how it works in the U.S. at least.

     

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  77.  
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    Anonymous Coward, Nov 29th, 2010 @ 10:29pm

    "Not for it to be a restrictive license, to allow someone to cash in on someone elses effort"

    And it not that restrictive but it does have restriction, you can cash in if there is no NC-Non Commercial clause on it, but a Sharealike needs:

    a) You give it credit
    b) You make it the same license

    Neither of those were found on this case, so it is infringing the license. Ain't copyright a b.?

     

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  78.  
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    jakerome (profile), Nov 29th, 2010 @ 11:24pm

    Re: Re: Fair use?

    Techdirt generally takes a fairly expansive view of what constitutes fair use, so I'm curious about Mike's take on it here.

     

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  79.  
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    monniaux (profile), Nov 29th, 2010 @ 11:59pm

    what matters is that judges think

    I'm pointing out the obvious: what matters is not how commentators in this thread think, but how a French judge would react when faced with the claim that copying a few factual sentences from Wikipedia, even rewording them, would magically turn the whole Goncourt prize winner into a "free book". It seems highly implausible that the judge would agree with such a theory.

     

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  80.  
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    Nick Coghlan (profile), Nov 30th, 2010 @ 5:08am

    Did they stop distribution?

    "Innocent infringement" isn't a defence, just ask anyone sued by the **AA.

    As far as this goes, it is similar to GPL enforcement cases. Now that the violation of the license terms has been pointed out, the publisher can either cease publication and work out a deal with Wikimedia for past infringement, or else they can accept the license and continue to publish the work.

    The options of continuing to publish the work without a license, or seeking a non-CC license from Wikimedia aren't available to them.

     

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  81.  
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    monniaux (profile), Nov 30th, 2010 @ 5:24am

    not it's not like a GPL infringement case

    @Nick Cohglan: How would a publisher have to work out a deal with Wikimedia (the Wikimedia Foundation, I suppose) on works not copyrighted by Wikimedia?

    Besides, this is not like a GPL infringement case - we're dealing with literary work here, which a French court is likely to treat differently than code.

     

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  82.  
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    Snorre, Nov 30th, 2010 @ 9:03am

    Re: What is the CC if it is not for this purpose ?

    > Not for it to be a restrictive license, to allow someone to cash in on someone elses effort

    What, like H is doing with the effort of wikipedia's editors?

     

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  83.  
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    yuregininsesi, Dec 5th, 2010 @ 8:46am

    Well, I don't know about legally, but to me, if your "quote" is indistinguishable from the text you wrote yourself, it deffinately isn't a quote.

     

    reply to this | link to this | view in thread ]


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