S.Vertigo wrote:
Like any US business, Wikipedia must either conform to an existing particular protectionist system (hence entering into an implicit agreement to somewhat conform to a particular cultural imperialism) or choose to defy it, in the hope that the means of enforcing its protections elsewhere are impractical. WP can continue to skirt indefinitely around the issue of violating various "laws," as long as it complies with 'US law.' But at some point, US law may come to excessively test WP's conformity to its implied contract to conform, and may have to find somewhere else to go.
A certain amount of conformity is needed to protect our sanity. The issues that could be a basis for a stand are too numerous. An organization can only offer passive support to others with compatible but different goals. For an encyclopedia the goals revolve around the more general concepts of free speech. Even if we all feel that the right to publish bomb-making instructions or porn should be recognized, such issues are peripheral to our purpose. Expending our energies there would be a waste of our resources. It is more important to promote the continued free access to information that by right we already all own.
We are already big enough to be noticed. Encarta and EB are still pumping the urban myth that the work of recognized experts will always produce a more reliable product. Lack of imagination will be their big millstone. Skirting around issues never solves them. One problem with implied contracts is that nobody ever reads them. If such contracts fall withing a national scope we can certainly go somewhere else, but then we would just be "signing" a new implied contract in a new jurisdiction; so that alone does not really advance anything. In theory, a truly free project will have a diffuse leadership, but I despair of seeing that accomplished in a population that has signed its implicit contracts without reading them.
In a "law-abiding" society where there are copious statutes there can also be a mind-boggling tendency to comply with laws that never existed outside of the implicit contract. Copyright paranoia is only one aspect of that. Not surprisingly in that environment the winners play a little closer to the legal line, and the honest ones readily admit when they have inadvertently crossed that line, abandon the offending position and carry on with life. For a large successful corporation juggling lawsuits may be a part of everyday business.
Considering some of the methods by which the RIAA for example (a much-coddled entity) has excercised its "authority" to enforce IP rights in the cyberworld, its perhaps only on the continued disbelief in the wiki model that WP is not being legally challenged. IMHO its worth the effort to just imagine a future wherein WP can exist and function outside of all "legal" restrictions; and yet, as an entity in good faith with human goals, still prosper.
I doubt that the politicians have fully grasped the implications of the cyberworld. One does not or cannot become a legislator without adhering to a significant portion of the impled contracts. This leaves out a lot of people who are not a part of that clique. Maybe that explains poor voter turnouts. A Sonny Bono can turn his POV into law because he is working with like-minded colleagues. By the time the rest of us figure out what is going on it is very difficult to undo the damage.
The authority of courts to enforce their juristiction ultimately comes down to means of enforcement, and hence the extension of Constitutional principle (free speech, habeas corpus, etc.) to international matters is on the cutting edge of current legal issues; which is why in Iraq for example, dominant enforcement system without the extension of Constitutional juristiction and citizen protections, is an ethical anomaly which calls to explanation the very basis of US legal authority in an international context.
For courts to enforce jurisdiction a case must first be put before the judges. This is why I feel that when it comes to take-down orders the person seeking the order must first have standing. We don't know where the project legally stands because there have not yet been any serious legal threats.
The "Constitutonal principles" that you mention did not spring magically out of nowhere when the US Constitution was written. You are viewing cutting edge legal issues with American glasses. The current Iraqi mess did not begin with Saddfam Hussein, but with the 1919 Treaty of Versailles. Hussein was very successful at keeping a lid on the problems, and managed to maintain one of the most secular states in an Islamic world that has more than its share of fanatics. There have been other coups in Iraq since 1919. I would be surprised if the person who emerges as the new Iraqi president out of the current democratization process lasts five years without being assassinated or overthrown in a coup. I doubt that Iraqi citizens would accept any extension of US "Constitutional jurisdiction and citizen protection". It's not theirs; they're not indigenous. This is an area that has also resisted fundamentalism since the 7th century despite the influence of a large southern neighbour. Can a nation from the other side of the world persevere that long.
Ecv