Download WIKIMANIA 2008 Alexandria

WIKIMANIA 2008 Alexandria
Free Knowledge & Wikimedia
projects: is the Law an ally?
Olivier Hugot
Free Knowledge & Wikimedia
Projects : is law an ally ?
• Objective: outline main
legal issues Wikipedian
should be aware of
• Presentation uses
Wikipedia as an example
but applicable to all
projects of the Foundation
• Timing: presentation 30
mns & 15 mns for Q&As
Given #1: No borders in a legally
divided world
• Everyone knows that: internet
ignores borders..
• ..but people and regulations
don’t
• Wikimedia projects a truly
worldwide (decentralized and
with many active communities)
• Have to cope with several
bodies of laws; too often
conflicting
• Headaches to lawyers
Given #1: No borders in a legally
divided world
• Ex: data retention – one of the
legal duty of the Foundation
• Problem: type of data and
length of retention varies within
countries (USA & EU)
• Foundation is US-law compliant
• No real problem as of today, but
might create tension in the future
Given # 2: Money is not the answer
• Operating budget of the
Foundation: much lower
than that of a commercial
site with similar traffic
• Value of the projects: You,
i.e. the Community(ies)
• Legal consequence: limited
liability status of the
Foundation is a necessity
Given #3: You shall not publish
• Look at the books on the
right and the Wikipedia
logo: fundamentally
different?
• No – way to spread
knowledge & culture
• Yet, legally the answer is yes
and it must remain this way
Given #3: You shall not publish
• Example: if I am defamed in a
book, legal action is brought
against publisher and/or
author/journalist
• Defamation happens on
Wikipedia: victim will want to
blame the Foundation
• Why? It is easy, people might not
know how Wikipedia is organized
(many people believe
administrators are paid)
• Bottom line: someone has to be
liable
Given #3: You shall not publish
• Legally speaking: the Foundation
provides a way to stock/host
content (articles, pictures, etc.)
but does not publish the articles
• Otherwise: Foundation might be
liable for the actions of each and
every Wikipedian
• On Wikipedia (like everywhere
else): author is responsible for its
writings
Given #3: You shall not publish
• Probably single most important
legal rule for the Wikimedia
Projects
• Think of it this way: would the
Library of Alexandria be
responsible if I defame someone
now? No – why should the
Foundation be for content of
articles?
• Problem: people use the old
model (books) and apply it to
the Foundation projects
• Wikipedia: medium for people to
share their knowledge
Law as an ally: Terms of Use
• Wikimedia projects are on private
property, i.e. servers of the
Foundation
• Right to set up the rules for the
Community and organize it
• Ex: users shall cite sources, not
violate rights of third parties,
accepts that the contributions
are governed by a free license
(GFDL or Creative Commons)
Law as an ally: thanks to Free
License (GFDL & CC)
• Original works are protected by
copyright - authors get
protection
• GNU FDL is a copyright license
created by the Free Software
Foundation for documentation
(Can be compared to GNU GPL
for software)
• Some illustrations governed by
Creative Commons (CC-BY-SA)
Law as an ally: thanks to Free
License (GFDL & CC)
• Copyleft provision of GNU FDL or
Share Alike provision of CC
license: guarantees that all
content contributed can be reused under the same terms
• Ensure that the content remains
free to use and distribute
• Ex: no need for authorization to
re-use content in a book or CD
ROM (but need authorization to
use the Wikipedia trademark)
Law as an ally: to sum up
• As seen, law is a means to create
a stable framework for those who
want to share culture
• …and it works: numbers of
articles constantly growing, along
with the Community(ies)
• As such, law facilitates the
dissemination of knowledge
• However, sometimes law can be
an impediment
Law as a necessary burden: duty to
comply
• Compliance: the projects must
abide by applicable law(s),
much like any project; cost to
comply
• Might be more difficult because
of international nature of the
projects and the Foundation
being non for profit
• Ex: data retention – length and
type of data kept; might increase
cost to the Foundation if
requirement changes
Law as a possible source of liability:
Why?
• Main source of possible liabilities:
third parties harmed by content
poster by a user
• Ex: defamations; copyright &
trademark infringements; right to
privacy
• Direct concern of the
Community(ies) because comes
from the content itself
• Tough legal questions sometimes
administrators have to deal with
Law as a possible source of liability:
basic principles
• Remember: the Foundation is not
a content publisher nor a
content provider
• Chapters: not agent or
representative of the Foundation
(no power to bind the
Foundation or speak of its behalf)
• Wikipedians are not contributing
for, or on behalf of, the
Foundation: just accessing the
premises (severs) abiding by the
rules
Law as a possible source of liability:
why non-Wikipedians get lost
• Remember: Wikipedia vs. book
publisher: not same type of
liability
• Complex model:
– Community with large
independence and auto regulation;
– Chapters promoting the Foundation
projects but are not agents;
– Foundation as a host of content
• My experience as a lawyer:
people and judges are … lost
Law as a possible source of liability:
why non-Wikipedians get lost
• Natural & legitimate
reaction: if harmed by a
content on Wikipedia, wants
someone responsible
• Easy way: go after the
Foundation
• Wrong answer: any liability
the Foundation may have is
not that of a speaker or
writer
Law as a possible source of liability:
the Foundation status
• Foundation does not and
cannot control the content
of the millions of articles
• Think of the Foundation as a
« venue » provider or even a
live radio where everyone
can express themselves
• If the Foundation was to be
responsible for the content
of all the articles, it would be
an unbearable burden
Law as a possible source of liability:
the Foundation status
• Rule: the Foundation may
only be liable for unlawful
content if it has been put on
notice of said content (or it
should have known) and
has not suppressed it
promptly
• Sometimes enjoys even
broad immunity (ex: USA)
Law as a possible source of liability:
the Foundation status & Community
• Overwhelming majority of
possible problems are solved
thanks to the great work of the
community
• My experience: unlawful content
(i.e. vandalism) is suppressed
within a few hours by the
community
• The suppression is not made out
of a legal duty but because it
does not comply with terms of
use, is plain unlawful, or is judged
inappropriate by the Community
Law as a possible source of liability:
the Foundation status & Community
• If harmful content, Foundation
may receive:
– A “notice” from person claiming
she/he has been harmed;
– A request from the Police; or
– A Court order
• From thereon: must act
accordingly, if not may trigger
liability
• Main demands: suppress content
& identify user/vandal
Law as a possible source of liability:
the Foundation status & Community
• Sum up: community auto
regulates itself, try to build
lawful, quality projects
whereas Foundation only
interacts with content when
under a legal duty to do so
or to avoid legal liability
• Let’s see some examples
Law as a possible source of liability:
Copyright claims
• Ex: picture is placed to illustrate
an article by a party who does
not have the right: either
– not in the public domain,
– under a « free » license, or
– not by the copyright owner
• Legally speaking: easiest cases of
all, but might be some copyright
exemption:
– fair use
– right to cite short extracts, etc
Law as a possible source of liability:
Trademark claims
• Ex: person or company opposes
the use of its trademark within an
article
• Note: trademark law does not
forbid the use of a term
altogether
• The use of a trademark is
forbidden when associated with
certain goods or services as an
identifying function
• On Wikipedia: not very common
to have valid claims (The claims I
have dealt with has all been
withdrawn)
Law as a possible source of liability:
Defamation & privacy claims
• Most common complaints and
most difficult to deal with
• Why? It touches free speech &
legally complicated to know
what is defamatory and what is
not
• Risk: suppress content that is not
actually unlawful just to avoid
liability: “chilling effect”
• Ex: article on sect on French
Wikipedia
Received a legal threat?
• Do not rush
• Issue dealt with in the discussion
page of the article?
• Rule: if there is a lawyer letter,
beware ! Do not try to fix it: most
likely used later against you, the
local chapter or the Foundation
• You may reply that they must
address complaint to the
Foundation in California as
content host
• You have done everything in
your power
Know the Law, use the Law
• Law is an ally. It provides for
a framework within which
the Foundation projects can
grow
• Numbers speak: in view of
the number of projects and
articles, the actual legal
threats or actions are more
than minimal – a great deal
of this is thanks to the work
of the Community, i.e. You
Thanks for your attention
• Questions?
WIKIMANIA 2008 Alexandria
Free Knowledge & Wikimedia
projects: is the Law an ally?
© Olivier Hugot. Verbatim copying and distribution of this entire
presentation are permitted worldwide, without royalty, in any
medium, provided this notice is preserved