I'm forwarding this on behalf of Ethan Zuckerman, a member of the Wikimedia Advisory Board. http://wikimediafoundation.org/wiki/Advisory_Board#Ethan_Zuckerman ---------- Forwarded message ---------- From: Ethan Zuckerman <ethanz(a)gmail.com> Date: Apr 19, 2007 11:58 PM Subject: Re: [Wikimedia Advisory Board] What do we do in the event the Foundation fails? To: advisory(a)lists.wikimedia.org Angela, thanks for pointing me to this discussion. I'll respond via you, if that's okay - I think actually subscribing to that list would likely destroy either my workday productivity or my mail client. Do feel free to forward. Standard disclaimers apply - I am not a lawyer, though I hang out with a lot of them, and I look forward to putting some of these questions in front of people who think about trademark and intellectual property for a living. Some of the questions implied in this thread are hard for any lawyers to answer - very few lawyers are smart about more than one legal system, and possible solutions to the Wikimedia survival question probably require crossing jurisdictions. The scenarios that worry me most don't involve interplanetary invasion. They involve massive liability rulings in a libel/slander suit or intractible conflict within the board of directors. In the first case, a long process could end with a judgement that bankrupts the Foundation entity. My guess is that a ruling would attempt to strip Wikimedia of any money it had raised but wouldn't consider trademark part of the Foundation's assets for settlement purposes - in other words, Seigenthaler sues Wikimedia and wins, I think it's unlikely that the bankruptcy courts would give Seigenthaler the opportunity to use the Wikipedia trademark as part of the fiscal damages. That said, Wikimedia would probably fold rather than go through bankruptcy proceedings. The question then becomes whether a successor entity could use the defunct Wikimedia trademarks. One option would be to pursue a "Lots of Copies Keep Stuff Safe" strategy, much as people are suggesting with the copies of the content itself. (I think that having an agreement with Archive.org, and with other digital archives, to periodically store snapshots of the various wikis would be a very smart thing to do.) If the country foundations started registering the trademarks under local law, it's possible that a succesor foundation could license those trademarks - i.e., Wikimedia2, a new US 501c3 could be given permission to use the Wikimedia marks registered under German law by the German Foundation, for instance. A first step would be to research in what venues Wikimedia Foundation has registered these marks and consider what other entities we might want to ask to register marks. In the incorporation papers for the Wikimedia 501c3, I guarantee that there's a clause that deals with succession. Under US law, when you fold a nonprofit, you generally need to transfer assets remaining to another US 501c3 which has a similar mission and purpose. This last clause can be interpreted pretty strictly - my partner and I folded a 501c3 under Massachusetts law, and we tried to transfer the remaining assets (a few hundred dollars, and some stock) to the church we both attend. The local government refused, on the grounds that the church doesn't have the same social mission as our NGO - they forced us to find a different entity, or surrender the assets to the state. One option would be to pick an entity with a related mission which we would try to designate as successor, perhaps archive.org, in the case of the foundation folding. That successor might explicitly accept control of the mark as part of a succession process. It would be very difficult to declare a foreign NGO as successor - the US law wants the entity to be a 501c3. Before taking either of these concrete pieces of advice, please, please seek the advice of a real lawyer. But I think the idea of ensuring that lots of entities have access to the trademark might be a clever one, though it certainly takes a lot of control of trademark out of the foundation's hands. -Ethan