[Foundation-l] Fwd: [WL-News] Wikimedia Foundation in danger of losing immunity under the Communications Decency Act

[Mike Godwin]

Anthony writes:
>
>  On Sun, May 18, 2008 at 10:10 AM, Mike Godwin  
> <mgodwin at wikimedia.org> wrote:
>> My view continues to be that the Foundation should almost never  
>> engage
>> in direct editing or removal of project content, except (as in DMCA
>> takedown notices) when we are required to do so by law.
>>
> FWIW, I think that's an absolutely terrible decision that is the cause
> of a great deal of completely unnecessary ill-will toward the
> Foundation and its projects.

I think there will be unnecessary ill will towards the Foundation and  
its projects no matter what we do or do not do.  That is the nature of  
the world or at least of Foundation-l. But I think there would be more  
unnecessary ill will towards the Foundation and its projects if the  
Foundation used a heavier hand in removing content, precisely because  
it would give rise to the expectation that the Foundation is  
positioning itself in a fundamentally editorial role.  Look how much  
ill will is generated simply because I suggested to members of the  
community that there are legal problems associated with a couple of  
Wikinews articles!  Thomas Dalton, for example, thanks that's the  
equivalent of an order.  Me, I think it's better to explain what's  
going on and ask the community to do the right thing in the hope that  
they will take my advice.

If I did what you suggest, and simply removed material from Wikinews  
that I thought would generate a legal problem, there would still be  
ill-will ("Censorship!"), and I'd still be called upon to justify the  
removal, and there's still be ginned-up controversy.  In addition,  
potential litigants would perceive the Foundation as playing a heavier  
editorial role than it does, and would be more likely to sue us in the  
hope of either getting the statutory immunity overturned or of getting  
it construed in a way that diminishes its protection. I believe it  
helps to think through what the social consequences of the direct  
action.

> The only semi-coherent explanation for
> it seems to be that it is required for protection under Section 230 of
> the CDA, but as you and I both know this is absolutely not correct.
> In fact, everything I have read on the matter suggests that the whole
> point of Section 230 of the CDA was to allow service providers to
> engage in direct removal of project content without becoming liable
> for that which it failed to remove.


That's a correct reading of the reasoning behind Sec. 230.  And if  
you're AOL or MSN or abc.com or Google, you can afford to pay for a  
dozen summary judgments in your favor every week, on Sec. 230 grounds.

That's not us, however.  Better than defending Sec. 230 every time it  
comes up is to lower the public's expectation that the Foundation is  
going to step in and fix everything for a would-be plaintiff.  That  
way, we spend less donated money on cases.

Now, you may be wealthy, Anthony, and so it may seem sensible to you  
to invite lawsuits that you can then get dismissed on Sec. 230 grounds  
-- a kind of very expensive version of whack-a-mole.

But if the purpose of our engagement with the community of editors is  
to empower them to add to the availability of the sum of human  
knowledge, then it makes sense to empower the community to fix as many  
problems with the content they provide as possible, rather than take  
that responsibility away from them and place it in, say, me or Sue or  
Cary. So I prefer to advise community members rather than give them  
orders (as if they felt any obligation to follow my orders, which  
hardly anyone does), and I believe it's wiser to reserve my own  
ability to remove content even though Sec. 230 allows it.  That may  
seem like an "absolutely terrible decision" to you (not merely  
terrible, but "absolutely" so!), but perhaps you're a better attorney  
than I am.

I should add that there is a complicating factor with regard to Sec.  
230, and that's that while simple removal is protected, it's unclear  
whether every court would agree that more subtle substantive editing  
is protected -- by engaging in the development of the content of an  
article, the Foundation and its agents or employees may  
unintentionally negate Sec. 230 immunity, depending on the scope and  
substance of the editing.  That's a legal question that I'm studiously  
avoiding investing the Foundation's donated funds in finding an answer  
to.  I'd rather see a richer defendant sort that one out for us.


--Mike