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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

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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
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
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 world4
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
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
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 publish7
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 publish8
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 publish9
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
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
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 cc12
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 re-used 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
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
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
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
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
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 lost18
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
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 status20
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
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 community22
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 community23
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
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
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
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
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
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
wikimania 2008 alexandria30

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