WIKIMANIA 2008 Alexandria

1. WIKIMANIA 2008 Alexandria Free Knowledge & Wikimedia projects: is the Law an ally? Olivier Hugot

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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)

11. 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)

12. 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)

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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)

21. 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

22. 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

23. 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

24. 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

25. 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)

26. 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

27. 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

28. 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

29. Thanks for your attention • Questions?

30. 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