WIKIMANIA 2008 AlexandriaWIKIMANIA 2008 Alexandria

Free Knowledge & Wikimedia Free Knowledge & Wikimedia projects: is the Law an ally?projects: is the Law an ally?

Olivier HugotOlivier 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 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

• 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