Ray Saintonge writes:
An important point; we musn't force the WMF lawyer into a conflict of
interest
The issue is only partly conflict of interest, and it often isn't that. It's primarily that WMF is not insured to give legal advice to community members. We run an encyclopedia, not a free legal clinic. (By comparison, when I worked for EFF, I was actually empowered to give free legal advice to people who called in for help.)
It really feels good to be able to say "Make my day." More of us should
try it.
You'll be pleased, I know, to know that I do get to say something similar quite frequently. There are plenty of bogus legal threats directed to WMF.
John Vandenberg writes:
In cases like this, I think it would help if the WMF lawyers would
tell the community, bluntly, that they can't assist the community in the matter, with a quick overview of why they cant assist.
See above.
It's also no secret that we have referred community members to lawyers in the past because we could not represent or counsel those members. This is what we did with regard to NPG.
Is that possible without putting WMF lawyers in a tight spot?
Sometimes. Sometimes not. (The issue is not so much putting lawyers in a tight spot as it is one of making WMF more vulnerable, e.g., by revealing defense strategies.)
Peter Gervai writes:
Or we can reasonably expect them to ask for real legal advice from (or
paid by) the WMF and _then_ accept the _known_ risk to file a counter-notice.
What happens if they follow the legal advice from WMF and then face liability anyway? (This sometimes happens even when the best advice is given.) WMF is not insured against the malpractice lawsuit that community members might bring in that case.
John Vandenberg writes:
.. find generic legal advice ... or ...
.. find a lawyer among the community who can help.
There is plenty of generic legal advice about how to respond to takedown notices. A little Googling will turn up some for you.
--Mike
On Fri, Jun 4, 2010 at 15:54, Mike Godwin mnemonic@gmail.com wrote:
We run an encyclopedia, not a free legal clinic. (By comparison, when I worked for EFF, I was actually empowered to give free legal advice to people who called in for help.)
Couldn't we then use EFF for this specific occasion? Aren't they willing?
Peter Gervai writes:
Or we can reasonably expect them to ask for real legal advice from (or
paid by) the WMF and _then_ accept the _known_ risk to file a counter-notice.
What happens if they follow the legal advice from WMF and then face liability anyway? (This sometimes happens even when the best advice is given.)
I'm sure that the advice would've been detailed this possible outcome as well, weighting its probability.
The problem is that average editor have close to zero knowledge about the chances; either it's 80% that you'll get sued successfully, 50% that it's gonna happen or 5% (or maybe 0%).
WMF is not insured against the malpractice lawsuit that community members might bring in that case.
I'm sure you have at least a dozen way to phrase your possible disclaimer. :-)))
But I was mainly referred to the request to people to back up their claim with counternotices, and why this wasn't realistic. If nobody can give advice then I don't expect people to take undefined risks. And I do not expect WMF to be able to give that advice, acknowledged. We're clearly not equipped for that.
Peter
Peter Gervai wrote:
On Fri, Jun 4, 2010 at 15:54, Mike Godwin mnemonic@gmail.com wrote:
We run an encyclopedia, not a free legal clinic. (By comparison, when I worked for EFF, I was actually empowered to give free legal advice to people who called in for help.)
Couldn't we then use EFF for this specific occasion? Aren't they willing?
Can I suggest this is more likely much more the cup of tea for the Chilling Effects site folks? Google, or "wikipedia" for them, if you aren't familiar with them yet. I very much think their site will at the very least have plenty of links you can follow, to find what you wish for.
Yours,
Jussi-Ville Heiskanen
On Fri, Jun 4, 2010 at 3:54 PM, Mike Godwin mnemonic@gmail.com wrote:
Is that possible without putting WMF lawyers in a tight spot?
Sometimes. Sometimes not. (The issue is not so much putting lawyers in a tight spot as it is one of making WMF more vulnerable, e.g., by revealing defense strategies.)
Surely having a known defense strategy would beat having no defense strategy at all, which basically is the situation now. I can accept that the WMF cannot refuse take-down notices itself, because that would increase its liability not only to the current claim, but to future claims as well. But why not support the community in issuing counter-claims, by telling them that the possibility is there, and what the consequences are (both the positive one that the WMF is then likely to re-instate the material, and the negative one that the one doing the claim will be the one liable to get sued if the other party decides to do so).
The situation now is that a single take down notice will have the WMF take down the material, basically saying to the community "we have to do this". How do you expect people to issue counter-claims if they don't even know about the possibility of doing so?
Or we can reasonably expect them to ask for real legal advice from (or
paid by) the WMF and _then_ accept the _known_ risk to file a counter-notice.
What happens if they follow the legal advice from WMF and then face liability anyway? (This sometimes happens even when the best advice is given.) WMF is not insured against the malpractice lawsuit that community members might bring in that case.
I'm sorry, but I am getting more and more the feeling that for the board and the executive the foundation is more important than the projects. To me, this answer is an example to that. Surely, it is easy enough to put an answer in such wordings that the likelihood of losing such a suit (in the already unlikely circumstance that such a suit would actually be brought forward) are negligible. And because of the remaining minute chance that there is a minute chance that the foundation loses a non-negligible sum of money, you leave the community on its own. It's sad. The foundation exists to support the projects, not the projects to give the foundation a reason to exist.
John Vandenberg writes:
.. find generic legal advice ... or ...
.. find a lawyer among the community who can help.
There is plenty of generic legal advice about how to respond to takedown notices. A little Googling will turn up some for you.
So that's the foundation's reaction? If you don't like us taking down material, just find out yourself what can be done about that - and then find out how that something is done that can be done about that? You seem to be more tightly bedded with not only valid but also invalid copyright claimers than I ever had thought possible.
On Fri, Jun 4, 2010 at 8:05 AM, Andre Engels andreengels@gmail.com wrote:
Surely having a known defense strategy would beat having no defense strategy at all, which basically is the situation now.
I'm afraid I must deny that we have no defense strategy.
But why not support the community in issuing counter-claims, by telling them that the possibility is there, and what the consequences are (both the positive one that the WMF is then likely to re-instate the material, and the negative one that the one doing the claim will be the one liable to get sued if the other party decides to do so).
If I were you, I would not assume that this is something WMF would never do. As has been made clear before now, we consulted with French lawyers before complying with the takedown notice in this instance, to assess how seriously to take the copyright claims.
The situation now is that a single take down notice will have the WMF take down the material, basically saying to the community "we have to do this".
I disagree with this characterization of the situation.
How do you expect people to issue counter-claims if they
don't even know about the possibility of doing so?
Are you saying that the possibility of responding to a DMCA (or equivalent) takedown notice has been a secret until now? My experience has been the converse -- that any copyright advocate who knows enough to track copyright dates and to post dozens or hundreds of texts to Wikisource is likely to know the basics of takedown notices and counter-claims, or is able quickly to determine on his own what can be done in response.
I'm sorry, but I am getting more and more the feeling that for the board and the executive the foundation is more important than the projects.
This seems disingenuous to me. You seem to be saying that all collaborative projects must provide you with legal representation and advice. I'm pretty sure the Free Software Foundation does not do this, and that Creative Commons doesn't do it either. There are organizations that do provide such services, like EFF (my former employer). It seems to me to be a mistake to try to turn the Wikimedia Foundation into another EFF, or to say that "the Foundation is more important than the projects" because it does not try to be EFF.
To me, this answer is an example to that. Surely, it is easy
enough to put an answer in such wordings that the likelihood of losing such a suit (in the already unlikely circumstance that such a suit would actually be brought forward) are negligible.
The issue is not the losing of such a suit. We'd likely win it. The issue is the cost of winning it.
There is plenty of generic legal advice about how to respond to takedown notices. A little Googling will turn up some for you.
So that's the foundation's reaction?
I'm avoiding giving you legal advice while dropping broad hints about where you can find good legal advice for free. Of course, I can't compel you to take the hint.
If you don't like us taking down material, just find out yourself what can be done about that - and then find out how that something is done that can be done about that?
Other Wikimedians don't seem to find this as tricky as you do.
You seem to be more tightly bedded with not only valid but also invalid copyright claimers than I ever had thought possible.
This seems to be an inference that is insupportable on the basis of the facts you have.
--Mike
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