On Tue, Jun 3, 2014 at 9:37 AM, Mike Godwin <mnemonic@gmail.com> wrote:

On Mon, Jun 2, 2014 at 4:19 PM, Todd Allen <toddmallen@gmail.com> wrote:
> Would WMF, being in the US, need to worry about this to any greater degree
> than it worries about, say, Chinese publishing restrictions, or UK
> "superinjunctions"?

First, WMF operates globally, and while I took pains as general
counsel, just as the WMF legal team does now, to limit exposure around
the world, it is a mistake to suppose that jurisdictional protections
are invariably impenetrable. See my discussion here on YouTube:
https://www.youtube.com/watch?v=wqQOvxyj66w .

Second, the ECJ decision can be used to go after editors individually,
or organized WMF-affiliated groups.

Does the ECJ need to establish jurisdiction over Wikimedia or specific users (presumably only those users directly involved in creating or curating the content in dispute)? We've seen in some situations in the past (e.g. with the DCRI and frwp) where governments have targeted users within their jurisdiction to demand information or actions. Could that happen here?

Should the WMF choose to refuse to implement the directive, could the ECJ pursue penalties against the income stream of donations, or grant funding disbursed to WMF-related entities in the EU? Could the WMF seek exemptions under Article 9, or would we run into jurisdictional risks by doing that?

In Article 23, it reads "The controller may be exempted from this liability, in whole or in part, if he proves that he is not responsible for the event giving rise to the damage." Does this, perhaps in conjunction with the Section 230 status of the WMF, provide some cover?

CC'd to the advocacy advisory list.

~Nathan