Ray Saintonge wrote:
A key factor in distinguishing between a publisher and
an ISP seems to
be editorial control, and oonsciously active participation in the
editing process. An ISP who is told that there is something illegal
about a page can easily remove it as a result of being so told. Being
pro-active in this may be more characteristic of a publisher, because it
involves making our own legal decisions about whether a writing is in
some fashion illegal.
The problem here is that Jimbo in particular and the WMF in general has
been very active in making editorial decisions.... particularly
regarding content on Wikibooks, with deletion of substantial sections of
Wikibooks content on the "orders from Jimbo". Office actions as well on
Wikipedia (a somewhat controvercial subject) suggest that there is some
active participation in this editing process. I'm not just talking
about WMF board members that are also acting as contributors, but
forceful decisions that have overriding authority and preempt
objections, even strong objections by the community.
I'm not really sure where the WMF would fall into this category, but I
wouldn't simply claim the WMF to be a mere service provider. I'm not
necessarily saying that editorial control is wrong here, but it does
have legal implications as you have pointed out.
Robert Scott Horning