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

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Presentation on theme: "WIKIMANIA 2008 Alexandria Free Knowledge & Wikimedia projects: is the Law an ally? Olivier Hugot."— Presentation transcript:

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 dont 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 Lets 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


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