Alex R. wrote:
That is, I can't conceive of any real circumstances where we should be concerned that a court will force us to publish the writings of someone we don't want to publish.
But isn't this inconsistent with the NPOV principle? that would be the opening that someone might use to go for the courts.
I can't imagine that they'd get very far with that argument. NPOV is not a legal requirement for us, it's just something we do. If we wanted to abandon it tomorrow, we could. Whether or not a particular ban conflicts with NPOV is an interesting one, but it strikes me as highly difficult for someone to come up with an argument that isn't risible that we have any obligations at all in that area.
Wikimedia Foundation has a strong first amendment right to publish whatever it sees fit, NPOV or no. The fact that we strive for NPOV is not different from Fox News striving to be conservative, or the NYT striving to be liberal, or Hustler striving to be pornographic. Each organization retains the sole right to determine the content of it's own publication, and to change policy about that at will.
If one agrees to an arbitration plan (remember it is a contract)
Why is it a contract? I say that it is not a contract any more than me reflecting for weeks on end about whether or not to ban someone is a contract. The person banned at the end of the arbitration (if that's what happens) is just banned, whether they agreed to it or not.
It is not easy in most jurisdictions to violate an arbitration clause. However sometimes it is possible by being totally unfair, unresponsive and unwiling to listen to some one put forward their perspective.
What bothers me about the thrust of what you're saying is that it sounds like you believe that by instituting more formal procedures for deciding this sort of thing, we are thereby changing things so that people could at least conceivably have standing to complain that the process is arbitrary, i.e. we are somehow allowing outselves to foolishly give people some sort of legal right not to be treated arbitrarily.
I'd like to avoid that, obviously!
Does this mean complex rules of procedure? No. Does it mean doing anything more than having three more or less impartial individuals review all the submissions of the person who is being removed? No, not really. It is a way to protect Wikipedia, not to expose it to more problems. This is why arbritration is often adopted by savvy corporations that operate across international boundaries. It is a less expensive and expeditious way to resolve issues rather than have them drag through the courts for a long period of time with no resolution and hey, you can even do it in house without appeal to some outside arbitration board (as long as the arbitrators are somewhat impartial going into the decision making process). Most courts do not want to overturn arbitration decisions they want to confirm them and clear the court docket.
I guess the problem I'm having with all of this is that we are not talking about entering into formal arbitration agreements with people like EofT. That's just asking for trouble, if you ask me.
Perhaps we should drop the name 'arbitration' if that's what it implies. If we want arbitration with someone to avoid a lawsuit, that's a WHOLE OTHER THING.
This is not about avoiding lawsuits. This just about finding a way to ban people from editing Wikipedia in a way that respects our internal culture.
We have the legal right to be as stupid and arbitrary and unfair with our procedures as we like. (Of course we shouldn't do that!)
Who is the we? If Wikimedia Foundation is a membership organization then no, that is not true. Even if it is not a membership organization the Attorney General of any state where Wikimedia solicits will have some jurisdiction to deal with user complaints. Unfortunately Not for profit corporations are subject to the jurisdictions of the courts regarding their decision making processes so I cannot agree with the above statement. Having said that one can take steps to limit the outside interference that someone may try to impute to the organization by being clear how limited such rights might be.
But I can't conceive of any sensible grounds for user complaints of any kind. We absolutely should make very clear that users have the absolute minimum legal rights against the Wikimedia Foundation as possible!
However, it does not say that anywhere (I have been trying to get an approach adopted, but everyone seems to think that it is just an inordinate amount of legalism). The reality is that you have to protect your rights as when you let people collaborate they all own the intellectual property in common, why does the guy (or org.) that owns the server have any more right to decide what goes on the computer than anyone else once the floodgates have been opened?
Can you really imagine a court buying this argument? I can't. I can't really conceive of a case like this getting very far at all.
Having an ironclad arbitration scheme and an licencing scheme that deals with issues that are not covered by the GFDL will protect Wikipedia more, not less.
Well, I agree with that! I think we should do whatever we need to do, with legalistic formalism and all the bells and whistles to make sure that if some crank does try to take us to court to get us to let them edit the site willy-nilly that we can just point to Exhibit A (whatever that might be) and the Judge will say "Oh, o.k., well this whole thing is frivolous, good day!"
Leaving it to the hope that some judge will just say, "you can do whatever you want" rather than getting people to acknowledge that from the moment they log on does not seem like a really swift way to solve the issue.
Well, I totally agree with that.
--Jmibo