In a message dated 1/29/2006 9:05:46 AM Eastern Standard Time, t.starling@physics.unimelb.edu.au writes:
If Wikimedia needs qualified outside help, it's in operations, not oversight. Only an elected board, accountable to the Wikimedia community, can ensure that the principles that the community holds dear are upheld.
Some committees might benefit from the guidance of qualified outsiders, but the committees should still be dominated by volunteers, either selected by a transparent and fair process with Board oversight or, as Erik suggests, with open membership.
Actually, as Wikipedia grows it requires help in oversight no less than it does in operations. A large organization entails legal and financial responsibilities. If we are sued, for whatever reason, we cannot simply throw another server at the person suing us.
As I understand it, serving on the Board or in some other official capacity, such as officer, includes legal responsibility, including liability. It is not just the ability to make decisions that comes with a position, but the willingness to face the consequences. The issue is not who takes credit when things go right, but rather, who takes the blame when something goes wrong.
This is not an indictment of volunteers. I believe that they are the lifeblood of this organization. At our size, however, we are faced with enormous responsibilities. All of these efforts at reorganization are attempts to channel volunteer efforts effectively, so that they can continue doing what they do best--fulfilling the Foundation's mission statement by creating and distributing high quality free content resources--while limiting the repercussions that the Foundation, and by extension, the volunteers, face when things do not go right. This is something that requires professional legal and financial knowhow.
Danny
--- daniwo59@aol.com wrote:
This is not an indictment of volunteers. I believe that they are the lifeblood of this organization. At our size, however, we are faced with enormous responsibilities. All of these efforts at reorganization are attempts to channel volunteer efforts effectively, so that they can continue doing what they do best--fulfilling the Foundation's mission statement by creating and distributing high quality free content resources--while limiting the repercussions that the Foundation, and by extension, the volunteers, face when things do not go right. This is something that requires professional legal and financial knowhow.
Exactly. And while the pool of Wikimedians who can help is large and growing larger, that pool will not always have the right mix of skills we need to run the foundation (sic the oranization NOT the projects). Thus we will sometimes have to look outside that community to fill certain roles within the foundation.
BTW, every board member is also a Wikipedian. :) Some just edit more than others.
-- mav
__________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com
Daniel Mayer wrote:
--- daniwo59@aol.com wrote:
This is not an indictment of volunteers. I believe that they are the lifeblood of this organization. At our size, however, we are faced with enormous responsibilities. All of these efforts at reorganization are attempts to channel volunteer efforts effectively, so that they can continue doing what they do best--fulfilling the Foundation's mission statement by creating and distributing high quality free content resources--while limiting the repercussions that the Foundation, and by extension, the volunteers, face when things do not go right. This is something that requires professional legal and financial knowhow.
Exactly. And while the pool of Wikimedians who can help is large and growing larger, that pool will not always have the right mix of skills we need to run the foundation (sic the oranization NOT the projects). Thus we will sometimes have to look outside that community to fill certain roles within the foundation.
BTW, every board member is also a Wikipedian. :) Some just edit more than others.
-- mav
Having been involved with several other very large volunteer organizations, I beg to differ that you won't find volunteers with the right mix of skill necessary for most aspects of developing with Wikimedia Foundation and associated Wikimedia projects. If it continues to grow, I would agree that there must be some professional staff to deal with things like legal requirements and administrative overhead that somebody must do but nobody really cares to accomplish without getting a paycheck because it is pure drudgery. I am continually amazed though at how many tasks that would appear to me as mindless tedium still get accomplished with Wikimedia projects, like the recent changes patrol and endless battles with trolls.
One of the critical things that happens with large volunteer organizations is that training becomes a critical attribute, where volunteers are trained in critical skills like leadership development and critical aspects of the organization to help that volunteer group accomplish its mission. Usually you can even find "train the trainer" classes, and even people who conduct instruction for those people to conduct the "train the trainer" classes. This is something that is currently missing from Wikimedia projects, where new leaders are usually developed by throwing them into a leadership position and left to either sink or swim.
An example of this is with the American Red Cross, where they have largely volunteers that run almost every aspect of their organization. Yes, they do have professional staff that deals with the mundane day to day issues, but the bulk of what they accomplish could not happen without a huge group of volunteers that are activly involved. The Red Cross also has a huge number of training sessions for these volunteers, and is constantly trying to get its volunteers trained on things like knowledge of First Aid, CPR, and disaster relief. None of these are skills that come naturally to any random volunteer unless you have a medical degree, and even then professional medical personnel still learn things through their association with the Red Cross that they would otherwise not learn.
I could mention examples from other very successful volunteer organizations, but I think this gets the point across fairly well. Volunteer groups can be successful, and some very large mostly volunteer organizations do exist. I would also add that there is a huge diversity of background from those who do participate on Wikimedia projects, and this diversity is something that needs to be exploited to help the growth of all Wikimedia projects.
Robert Scott Horning wrote:
An example of this is with the American Red Cross, where they have largely volunteers that run almost every aspect of their organization.
http://www.redcross.org/static/file_cont4989_lang0_1762.pdf
I agree that the Red Cross is one example (but only one, and not necessarily the best one) of an overwhelmingly volunteer organization. I think it is very instructive to look at their board of directors, which consists overwhelmingly of people with decades of experience managing large organizations and providing strategic guidance to them.
daniwo59@aol.com wrote:
In a message dated 1/29/2006 9:05:46 AM Eastern Standard Time, t.starling@physics.unimelb.edu.au writes:
If Wikimedia needs qualified outside help, it's in operations, not oversight. Only an elected board, accountable to the Wikimedia community, can ensure that the principles that the community holds dear are upheld.
Some committees might benefit from the guidance of qualified outsiders, but the committees should still be dominated by volunteers, either selected by a transparent and fair process with Board oversight or, as Erik suggests, with open membership.
Actually, as Wikipedia grows it requires help in oversight no less than it does in operations. A large organization entails legal and financial responsibilities. If we are sued, for whatever reason, we cannot simply throw another server at the person suing us.
As I understand it, serving on the Board or in some other official capacity, such as officer, includes legal responsibility, including liability. It is not just the ability to make decisions that comes with a position, but the willingness to face the consequences. The issue is not who takes credit when things go right, but rather, who takes the blame when something goes wrong.
I am amazed that you suggest that an officer of the Wikimedia Foundation would be personally liable for the work done as an officer. I would expect that an officer of an organisation speaks for the organisation and as a consequence the organisation is liable for the actions of its personnel. Normally someone employed by an organisation is liable only when gross incompetence can be proven or in cases where the law has been violated to an extend where criminal intend can be proven.
I am sure that someone can and will explain to what extend an employee is personally liable for his actions as an employee of the Wikimedia Foundation.
This is not an indictment of volunteers. I believe that they are the lifeblood of this organization. At our size, however, we are faced with enormous responsibilities. All of these efforts at reorganization are attempts to channel volunteer efforts effectively, so that they can continue doing what they do best--fulfilling the Foundation's mission statement by creating and distributing high quality free content resources--while limiting the repercussions that the Foundation, and by extension, the volunteers, face when things do not go right. This is something that requires professional legal and financial knowhow.
Danny
When you mean to say that we have to be careful in our actions, I could not agree with you more. However, many of the volunteers in our community have qualifications that are hard to get when you want to have their effort done by professionals. When you imply that only professionals do a professional job, you have to look at what we do and provide, it is unorthodox how things get done, and it is exactly this unorthodoxy that makes the distinction between how things are done in a full professional organisation and in our organisation, an organisation that is seen and priced for the quality it provides.
Thanks, GerardM
Gerard Meijssen wrote:
daniwo59@aol.com wrote:
In a message dated 1/29/2006 9:05:46 AM Eastern Standard Time, t.starling@physics.unimelb.edu.au writes:
If Wikimedia needs qualified outside help, it's in operations, not oversight. Only an elected board, accountable to the Wikimedia community, can ensure that the principles that the community holds dear are upheld.
Some committees might benefit from the guidance of qualified outsiders, but the committees should still be dominated by volunteers, either selected by a transparent and fair process with Board oversight or, as Erik suggests, with open membership.
Actually, as Wikipedia grows it requires help in oversight no less than it does in operations. A large organization entails legal and financial responsibilities. If we are sued, for whatever reason, we cannot simply throw another server at the person suing us. As I understand it, serving on the Board or in some other official capacity, such as officer, includes legal responsibility, including liability. It is not just the ability to make decisions that comes with a position, but the willingness to face the consequences. The issue is not who takes credit when things go right, but rather, who takes the blame when something goes wrong.
I am amazed that you suggest that an officer of the Wikimedia Foundation would be personally liable for the work done as an officer. I would expect that an officer of an organisation speaks for the organisation and as a consequence the organisation is liable for the actions of its personnel. Normally someone employed by an organisation is liable only when gross incompetence can be proven or in cases where the law has been violated to an extend where criminal intend can be proven.
I am sure that someone can and will explain to what extend an employee is personally liable for his actions as an employee of the Wikimedia Foundation.
There has been a confusion made between what is an officer from a legal perspective, in an organisation such as Wikimedia Foundation, and the titles (eg, press officer) we gave to a few people in the past year.
In the primary definition, "officers" are indeed liable. They receive delegations of power from the board, and in case of mistakes in their duties or lack of respect of the delegations which were given to them, they are liable.
In the secondary definition (ie, the one we have been using for the past year), "officers" are essentially titles of recognition/identification. They allow the board to have a primary contact for a collection of issues, they allow the community to know who to contact and they allow the outside (press etc...) to feel that they are talking to someone trusted by the board. But, these "titles" do not imply liability per se. Some of these titles actually contained the word officer (such as Chief Technical Officer or Press Officer), while others did not (such as Grant Coordinator).
We are in the process of clarifying this.
Finally, the whole issue is independant of whether the person is an employee or not I think. Someone may be an employee, with little delegation of power, so very limited responsability in front of the law. And someone may be a volunteer officer, with liability.
It appears that the main two areas where liability is necessary right now, are the financial and the legal areas. However, one of the board member has good financial experience, while no board member do have a legal background.
an t
Gerard Meijssen wrote:
I am amazed that you suggest that an officer of the Wikimedia Foundation would be personally liable for the work done as an officer. I would expect that an officer of an organisation speaks for the organisation and as a consequence the organisation is liable for the actions of its personnel. Normally someone employed by an organisation is liable only when gross incompetence can be proven or in cases where the law has been violated to an extend where criminal intend can be proven.
I am sure that someone can and will explain to what extend an employee is personally liable for his actions as an employee of the Wikimedia Foundation.
Well, firstly IANAL and secondly most of my legal knowedge comes from studying Australian law rather than US law. But my understanding is that civil liability for the action of employees rests with the corporation or individual employing them. This is called vicarious liability.
Members of the Board of Directors are not ordinary employees though, and I think Danny's implication was that the Board is responsible for the actions of the corporation. At common law, the civil liability is limited to the assets of the corporation, that's the major difference between a corporation and a partnership. The threats to the Board of Directors then fall into three categories:
* Statuatory -- many countries have laws making the Board of Directors liable for gross mismanagement, or other forms of misconduct. * Contractual -- for example, some wholesale suppliers require that the Board of Directors accepts liability for debts accrued. * Criminal -- limitation of liability and vicarious liability do not apply in criminal cases.
I don't know whether vicarious liability extends to officers. Their legal position is less clear than, say, Kyle's (an outsider employed by the Foundation).
Let's just say that I for one wouldn't be deterred from accepting a position of responsibility within the foundation by legal liability. We all live in a world ruled by law. That should be an impetus to educate ourselves about the issues, and to seek advice where appropriate, not to hand over the keys to the lawyers and let them run the place.
-- Tim Starling
Tim Starling wrote:
Gerard Meijssen wrote:
I am amazed that you suggest that an officer of the Wikimedia Foundation would be personally liable for the work done as an officer. I would expect that an officer of an organisation speaks for the organisation and as a consequence the organisation is liable for the actions of its personnel. Normally someone employed by an organisation is liable only when gross incompetence can be proven or in cases where the law has been violated to an extend where criminal intend can be proven.
I am sure that someone can and will explain to what extend an employee is personally liable for his actions as an employee of the Wikimedia Foundation.
Well, firstly IANAL and secondly most of my legal knowedge comes from studying Australian law rather than US law. But my understanding is that civil liability for the action of employees rests with the corporation or individual employing them. This is called vicarious liability.
Gerard's response on this seemed naïve. No-one wants to go into a situation where there is a high risk of liability, But these things do happen, and there are situations where the law needs to pierce the corporate veil when the corporate structure is there to assist in the perpetration of a scam. In some cases liability insurance can be purchased, but that too can be expensive. It's also important to remember the level of litigiousness that is found in US society. A plaintiff will often cast a wide net in the hopes of catching the right victim with deep enough pockets to pay for the wrongdoings of a penniless associate. This can be a frightful experience when people with only marginal involvement find themselves put through the expense of defending themselves in court.
Members of the Board of Directors are not ordinary employees though, and I think Danny's implication was that the Board is responsible for the actions of the corporation. At common law, the civil liability is limited to the assets of the corporation, that's the major difference between a corporation and a partnership. The threats to the Board of Directors then fall into three categories:
- Statuatory -- many countries have laws making the Board of Directors liable for gross
mismanagement, or other forms of misconduct.
Here in Canada the directors of a company can be held personally liable for failing to remit employee deductions to the tax department.
- Contractual -- for example, some wholesale suppliers require that the Board of Directors accepts
liability for debts accrued.
Banks especially ask directors to co-sign for a company's loans.
- Criminal -- limitation of liability and vicarious liability do not apply in criminal cases.
Enron!
I don't know whether vicarious liability extends to officers. Their legal position is less clear than, say, Kyle's (an outsider employed by the Foundation).
Anthere has already referred to an ambiguity in the use of the term "officer".
Let's just say that I for one wouldn't be deterred from accepting a position of responsibility within the foundation by legal liability. We all live in a world ruled by law. That should be an impetus to educate ourselves about the issues, and to seek advice where appropriate, not to hand over the keys to the lawyers and let them run the place.
I would feel the same way. As an organization gets bigger it needs to consider startegies for risk management. From a lot of the discussion that I've read since I've been here I can observe that very few bother to educate themselves about the legal issues. Having an organization overrun by lawyers is just another risk that needs to be managed.
Ec
Ray Saintonge wrote:
Tim Starling wrote:
Gerard Meijssen wrote:
I am amazed that you suggest that an officer of the Wikimedia Foundation would be personally liable for the work done as an officer. I would expect that an officer of an organisation speaks for the organisation and as a consequence the organisation is liable for the actions of its personnel. Normally someone employed by an organisation is liable only when gross incompetence can be proven or in cases where the law has been violated to an extend where criminal intend can be proven.
I am sure that someone can and will explain to what extend an employee is personally liable for his actions as an employee of the Wikimedia Foundation.
Well, firstly IANAL and secondly most of my legal knowedge comes from studying Australian law rather than US law. But my understanding is that civil liability for the action of employees rests with the corporation or individual employing them. This is called vicarious liability.
Gerard's response on this seemed naïve. No-one wants to go into a situation where there is a high risk of liability, But these things do happen, and there are situations where the law needs to pierce the corporate veil when the corporate structure is there to assist in the perpetration of a scam. In some cases liability insurance can be purchased, but that too can be expensive. It's also important to remember the level of litigiousness that is found in US society. A plaintiff will often cast a wide net in the hopes of catching the right victim with deep enough pockets to pay for the wrongdoings of a penniless associate. This can be a frightful experience when people with only marginal involvement find themselves put through the expense of defending themselves in court.
As I understand things, there are two types of people in the Wikimedia Foundation and its projects.
* There are the person with an official role; they are appointed or chosen to their function. * There are the persons with no official status as far as the WMF is concerned. These include stewards, bureaucrats, admins and users.
Only the first two groups have any protection for what they do within the Wikimedia Foundation. They have this protection as they represent the Wikimedia Foundation in an official capacity. When something is done on any of the projects that results in a legal situation, it is the person who will be, when identified, be the one prosecuted. Depending on the situation the Wikimedia Foundation or a chapter may involve itself, this is not a given.
When a person in his official position gets into a legal situation, it typically is the organisation, here the Wikimedia Foundation, who will be prosecuted. It is only when a person is criminally negligent or involved that there is a ground to prosecute an individual.
This is my understanding of how these things work. The consequence is that officers of the WMF or of chapters have protection that all other WMF volunteers lack. The fact that statutory laws exist for '''gross''' mismanagement is something that we should welcome. Typically it takes some effort to qualify as gross mismanagement. Given the people that we currently have in official positions this is unlikely to happen.
The only group of people for whom it is not entirely clear to me what their status is, are the people who help out on OTRS. Yes, I do know how careful these people try to do their job.. :)
Thanks, GerardM
Gerard Meijssen wrote:
Ray Saintonge wrote:
Tim Starling wrote:
Gerard Meijssen wrote:
I am amazed that you suggest that an officer of the Wikimedia Foundation would be personally liable for the work done as an officer. I would expect that an officer of an organisation speaks for the organisation and as a consequence the organisation is liable for the actions of its personnel. Normally someone employed by an organisation is liable only when gross incompetence can be proven or in cases where the law has been violated to an extend where criminal intend can be proven.
I am sure that someone can and will explain to what extend an employee is personally liable for his actions as an employee of the Wikimedia Foundation.
Well, firstly IANAL and secondly most of my legal knowedge comes from studying Australian law rather than US law. But my understanding is that civil liability for the action of employees rests with the corporation or individual employing them. This is called vicarious liability.
Gerard's response on this seemed naïve. No-one wants to go into a situation where there is a high risk of liability, But these things do happen, and there are situations where the law needs to pierce the corporate veil when the corporate structure is there to assist in the perpetration of a scam. In some cases liability insurance can be purchased, but that too can be expensive. It's also important to remember the level of litigiousness that is found in US society. A plaintiff will often cast a wide net in the hopes of catching the right victim with deep enough pockets to pay for the wrongdoings of a penniless associate. This can be a frightful experience when people with only marginal involvement find themselves put through the expense of defending themselves in court.
As I understand things, there are two types of people in the Wikimedia Foundation and its projects.
- There are the person with an official role; they are appointed or chosen to their function.
- There are the persons with no official status as far as the WMF is concerned. These include stewards, bureaucrats, admins and users.
Only the first two groups have any protection for what they do within the Wikimedia Foundation. They have this protection as they represent the Wikimedia Foundation in an official capacity. When something is done on any of the projects that results in a legal situation, it is the person who will be, when identified, be the one prosecuted. Depending on the situation the Wikimedia Foundation or a chapter may involve itself, this is not a given.
When a person in his official position gets into a legal situation, it typically is the organisation, here the Wikimedia Foundation, who will be prosecuted. It is only when a person is criminally negligent or involved that there is a ground to prosecute an individual.
This is my understanding of how these things work. The consequence is that officers of the WMF or of chapters have protection that all other WMF volunteers lack. The fact that statutory laws exist for '''gross''' mismanagement is something that we should welcome. Typically it takes some effort to qualify as gross mismanagement. Given the people that we currently have in official positions this is unlikely to happen.
The only group of people for whom it is not entirely clear to me what their status is, are the people who help out on OTRS. Yes, I do know how careful these people try to do their job.. :)
Thanks, GerardM
My apologies Gerard, but all this seems to me to be a misconception of the whole issue. Not even erroneous, but dangerous actually.
I think it is incorrect to imply that those elected/appointed are somehow "protected" by their position in the Foundation (ie, the Foundation will be prosecuted rather than them as individuals) while "regular editors" lack protection.
I would like to ask Brad here to clarify this issue publicly for you, and for all those who read your statement. Brad, can you help ? Thanks in advance :-)
Anthere
On 1/30/06, Anthere Anthere9@yahoo.com wrote:
Gerard Meijssen wrote:
As I understand things, there are two types of people in the Wikimedia Foundation and its projects.
- There are the person with an official role; they are appointed or chosen to their function.
- There are the persons with no official status as far as the WMF is concerned. These include stewards, bureaucrats, admins and users.
Only the first two groups have any protection for what they do within the Wikimedia Foundation. They have this protection as they represent the Wikimedia Foundation in an official capacity. When something is done on any of the projects that results in a legal situation, it is the person who will be, when identified, be the one prosecuted. Depending on the situation the Wikimedia Foundation or a chapter may involve itself, this is not a given.
When a person in his official position gets into a legal situation, it typically is the organisation, here the Wikimedia Foundation, who will be prosecuted. It is only when a person is criminally negligent or involved that there is a ground to prosecute an individual.
This is my understanding of how these things work. The consequence is that officers of the WMF or of chapters have protection that all other WMF volunteers lack. The fact that statutory laws exist for '''gross''' mismanagement is something that we should welcome. Typically it takes some effort to qualify as gross mismanagement. Given the people that we currently have in official positions this is unlikely to happen.
The only group of people for whom it is not entirely clear to me what their status is, are the people who help out on OTRS. Yes, I do know how careful these people try to do their job.. :)
Thanks, GerardM
My apologies Gerard, but all this seems to me to be a misconception of the whole issue. Not even erroneous, but dangerous actually.
I think it is incorrect to imply that those elected/appointed are somehow "protected" by their position in the Foundation (ie, the Foundation will be prosecuted rather than them as individuals) while "regular editors" lack protection.
I would like to ask Brad here to clarify this issue publicly for you, and for all those who read your statement. Brad, can you help ? Thanks in advance :-)
Anthere
It seems to me that he is basically right. The doctrine is [[respondeat superior]], and it typically applies only to people working in an official capacity.
Anthony
On 2/1/06, Anthony DiPierro wikilegal@inbox.org wrote:
It seems to me that he is basically right. The doctrine is [[respondeat superior]], and it typically applies only to people working in an official capacity.
Anthony
Doing more research, there is also, under United States federal law, the [[Volunteer Protection Act of 1997]]. It's arguable how much it would apply to Wikipedians, since it requires the volunteer to be "acting within the scope of the volunteer's responsibilities". The best case could be made for those arbitrators appointed by Jimbo. In terms of editors, admins, even beurocrats, it'd be a tougher argument.
Of course, the act only applies to volunteers, people who aren't paid. And looking further into the doctrine of respondeat superior, apparently that doctrine is about giving the employer liability rather than about giving the employee protection. In practice if I for instance make a mistake on someone's tax return at work and cost the taxpayer $1000 in penalties my employer is going to get sued, and I probably won't be. But I can't find any definitive answer that this is an actual part of the law, and I could in theory be sued for (for example) making a mistake while performing my duties at work (that'd be somewhat shocking and dismaying if it turns out to be true).
Anthony
Anthony DiPierro wrote:
It seems to me that he is basically right. The doctrine is [[respondeat superior]], and it typically applies only to people working in an official capacity.
Anthony
I looked at the article [[respondeat superior]]. It typically applies only to people in a relationship of employer/employee.
"is a legal doctrine which states that an employer is responsible for employee actions performed within the course of the employment."
The problem is that there are only two people in that type of situation. Others are not a relationship of employer/employee. Neither the board members, nor the officers (except possibly Danny, but he is not employed as an officer).
So, I am not sure how this doctrine exactly applies to us. But let's imagine that for some reason, it actually applies to us.
What is missing is Gerard argument (which is to claim that board members and officers are better protected than volunteers) is the field of application of the protection.
What would be the field of application ? it would be the activities directly in relation with the Foundation itself. And only those activities. So, I do not see where the comparison stands.
Editorial field : If a board member edits an article and adds defamatory content, he is responsible just as a regular volunteer. This activity is unrelated to the Foundation activities and I doubt much the board member (or the officer) will be more protected than any one else. This is his own responsability to add defaming content to an article imho.
However, if a board member makes a real bad decision in terms of allowing expenses, it is normal that he holds a certain responsability. A volunteer not involved in the Foundation can *not* take that decision, so there is no reason why he would be held responsable. Hence, the first may be protected by the Foundation, but there is no reason to protect the second person from a decision he can not be involved. There is no lack of equality or unfairness, since the field of application only applies to the first person.
Now, what I think bother Gerard is this : what if a volunteer answers in OTRS and does so in the name of the Foundation, even though he has received no authority/delegation to do so? Will he be protected ? Probably not. He is even liable to the Foundation and should the Foundation be threatened by the answer given by the volunteer, the Foundation could indeed defend itself by suing the volunteer. In that sense, yes, the volunteer is *less* protected than the board member/officer. But here, I think the volunteer must use common sense and not "imply" he is talking in the name of the Foundation when he is not. Or if he does so, it is best he be careful of his answer.
And... for those of you who do not have access to OTRS, any message sent through info-en contains at its bottom the following message :
Disclaimer: all mail to this address is answered by volunteers, and responses are not to be considered an official statement of the Wikimedia Foundation. For official correspondence, you may contact the site operators at http://www.wikimediafoundation.org.
So, the risk is very limited indeed. It mostly relies on common sense and good faith from both parties.
ant
Anthere wrote:
Now, what I think bother Gerard is this : what if a volunteer answers in OTRS and does so in the name of the Foundation, even though he has received no authority/delegation to do so? Will he be protected ? Probably not. He is even liable to the Foundation and should the Foundation be threatened by the answer given by the volunteer, the Foundation could indeed defend itself by suing the volunteer. In that sense, yes, the volunteer is *less* protected than the board member/officer. But here, I think the volunteer must use common sense and not "imply" he is talking in the name of the Foundation when he is not. Or if he does so, it is best he be careful of his answer.
ant
Now this is an interesting situation. Bureaucrats and admins are asked to "speak on behalf of the Foundation" in regards to enforcing policies on each of the seperate projects. Largely they do request community input, but not all of the time. For example, I routinely delete content due to it being offensive or simply inappropriate to the projects I am an admin on. For blatant cases I don't even wait for a VfD or some other community mechanism.. I just delete it without even a second thought. The same with blocking some users who are substantially crossing the line. There are policies that I am governed by, but who is to stop the legal liability for an admin that deleted something which some other 3rd party felt should be there, or worse in the Seigenthaler situation where admins would be held liable and resonsible for allowing inappropriate content to remain, especially if it was illegal to keep that content. Child pornography would be an example of a situation like this, where admins clearly need to get rid of that sort of content from all Wikimedia projects. There shouldn't even be the need to have a vote to remove that sort of content. Yes, I'm using this example as an extreme situation, but there are other similar situations where the line is considerably closer to hesitation on removal.
So are we telling admins that they become an admin on a Wikimedia project at their own legal and financial risk? And in the capacity as an admin I do feel I should be empowered to at least act on behalf of the Foundation so far as the project policies are concerned in this area of controlling site content. The fact that stewards and ultimately the board itself has oversight on the capacity to accept or reject admins (currently through appellate juristiction in most cases) imply some authority has been delegated to admins and bureaucrats, and other special privileges not normally granted to the typical user.
I admit that I can't speak on behalf of the Foundation in regards to accepting grants or buying servers, but in this very limited area I can speak that we don't allow point of view content, or content that violates copyright.
On 2/2/06, Robert Scott Horning robert_horning@netzero.net wrote:
Now this is an interesting situation. Bureaucrats and admins are asked to "speak on behalf of the Foundation" in regards to enforcing policies on each of the seperate projects.
When? How? Where?
Delphine -- ~notafish
Delphine Ménard wrote:
On 2/2/06, Robert Scott Horning robert_horning@netzero.net wrote:
Now this is an interesting situation. Bureaucrats and admins are asked to "speak on behalf of the Foundation" in regards to enforcing policies on each of the seperate projects.
When? How? Where?
Delphine
~notafish
I just got through dealing with one group, the Hesperian Foundation, which was in the process of using Wikibooks to help with the collaborative effort of translating an English language medical textbook from English to Hatian Creole. See this page for more details:
http://www.researchonline.net/haiti/nodentist/index.htm
As an administrator at Wikibooks, I informed the project manager, John Rigdon, that he should try to do this on Wikisource instead. As it turns out, he is actually going to be creating the Hatian Creole language Wikisource project in order to get this translation project moving, and there is some additional Creole content that is likly to be contributed as well. As a relative newcomer to Wikimedia projects, he is still a little bewildered by all of the politics that are involved with all of the sister projects and just wants to have some space to try a wiki, and make some meaningful contributions as well.
I'm basically just holding his hand and get him through some of the rough spots, while politely informing him of the various project policies. This is a win-win situation for both his group and the Wikimedia Foundation, as we now are going to have a significant contribution to a language that has not been covered before, and his group is going to have a collaborative editing environment that would otherwise cost money that his non-profit group could not realistically afford for any substantial length of time.
I also use this as an example of a petty detail that board members should not be intimately involved with on a day to day basis but instead be dealt with by project-specific administrators. We are not creating new policy by any means, but merely enforcing existing policies and helping to explain the subtle differences between each project. Is this something that board members really want to micro-manage?
On 2/2/06, Robert Scott Horning robert_horning@netzero.net wrote:
Delphine Ménard wrote:
On 2/2/06, Robert Scott Horning robert_horning@netzero.net wrote:
Now this is an interesting situation. Bureaucrats and admins are asked to "speak on behalf of the Foundation" in regards to enforcing policies on each of the seperate projects.
When? How? Where?
Delphine
~notafish
I just got through dealing with one group, the Hesperian Foundation, which was in the process of using Wikibooks to help with the collaborative effort of translating an English language medical textbook from English to Hatian Creole. See this page for more details:
http://www.researchonline.net/haiti/nodentist/index.htm
As an administrator at Wikibooks, I informed the project manager, John Rigdon, that he should try to do this on Wikisource instead. As it turns out, he is actually going to be creating the Hatian Creole language Wikisource project in order to get this translation project moving, and there is some additional Creole content that is likly to be contributed as well. As a relative newcomer to Wikimedia projects, he is still a little bewildered by all of the politics that are involved with all of the sister projects and just wants to have some space to try a wiki, and make some meaningful contributions as well.
I'm basically just holding his hand and get him through some of the rough spots, while politely informing him of the various project policies. This is a win-win situation for both his group and the Wikimedia Foundation, as we now are going to have a significant contribution to a language that has not been covered before, and his group is going to have a collaborative editing environment that would otherwise cost money that his non-profit group could not realistically afford for any substantial length of time.
It seems to me that this is something anyone could do, admin or not, and I wouldn't consider it "speaking on behalf of the foundation".
If I explain to someone how the US tax law works and hold their hand to get them through the rough spots, while politely informing them of tax laws and precedents, am I speaking on behalf of the United States Congress? Of course not.
Of course, the foundation for the most part doesn't even *make* Wikipedia policy, so this is even more removed from such a situation.
Anthony
On 2/1/06, Anthere Anthere9@yahoo.com wrote:
Anthony DiPierro wrote:
It seems to me that he is basically right. The doctrine is [[respondeat superior]], and it typically applies only to people working in an official capacity.
Anthony
I looked at the article [[respondeat superior]]. It typically applies only to people in a relationship of employer/employee.
"is a legal doctrine which states that an employer is responsible for employee actions performed within the course of the employment."
The problem is that there are only two people in that type of situation. Others are not a relationship of employer/employee. Neither the board members, nor the officers (except possibly Danny, but he is not employed as an officer).
So, I am not sure how this doctrine exactly applies to us.
Well, you're probably right. I thought this discussion was more focussed on potential future outsiders. Outsiders of course are going to want to be compensated, and most likely in an employer/employee relationship in terms of officers.
All that said, within the US volunteer officers are likely protected under the Volunteer Protection Act of 1997. But, of course, you and many officers/board members aren't in the US. I don't know very much about non-US jurisdictions (I believe the doctrine of respondeat superior does exist in a broad range of jurisdictions though).
When it comes to directors (which I would term as different from "officers", though some people may be both, for instance Jimbo is President (an officer position) and Director, the liability limitations can even vary somewhat drastically from state to state. Florida is not a very popular place for incorporation, and there isn't nearly as much case law as there is in for instance Delaware or Nevada.
Now, what I think bother Gerard is this : what if a volunteer answers in OTRS and does so in the name of the Foundation, even though he has received no authority/delegation to do so? Will he be protected ? Probably not. He is even liable to the Foundation and should the Foundation be threatened by the answer given by the volunteer, the Foundation could indeed defend itself by suing the volunteer. In that sense, yes, the volunteer is *less* protected than the board member/officer. But here, I think the volunteer must use common sense and not "imply" he is talking in the name of the Foundation when he is not. Or if he does so, it is best he be careful of his answer.
Yeah, I have no idea. I thought y'all were talking about something completely different, really :). I should probably just bow out of this one.
Anthony
Hoi, Given what has been written, I fail to see where the danger is in what I wrote. So far I understand I was correct in my understanding of how things work. If anything what Brad wrote did more to confirm my understanding than to change my understanding.
I do not believe in security by obscurity. It is a protocol that fails miserably. It is best to be open and honest about where riscs come from and in what way liability can occur and how such dangers can be lessened. It is prudent and more cost effective to do this analysis well and invest in sensible procedures that are communicated well than in taking out expensive insurance policies that may cover a lot but in the end give a false sense of security because it does not make the risc less, it makes the risc different.
The bottom line of securtiy is that to a large extend you define how secure you are by your behaviour. This means that risc analysis is not something that you do occasionally, security is an attitude. It is something that needs to be done continuously based on the observation of changing circumstances.
When people are employed, they have some protection. When people are fulfilling their specified role as a volunteer they have some protection. When people are expressing what is considered a neutral point of view, they are probably protected because it is the freedom of speech that allows for this. When people transgress against the neutral point of view policy and they add for instance libelous content, they are clearly in violation of everything we stand for.
Our community of volunteers do a remarable job at weeding out all the cranks and crackpots. I agree with Waerth that it makes no difference if you are an anonymous or a signed in user, POV pushing, a-social behaviour, vandalism needs to be stopped. There is no excuse.
If anything when we look at risc analysis, being able to deal with contentious issues in an even handed way is our best strategy. Having mediation and for the hard cases arbitration is exactly right given a sufficiently sized community.
The one thing that escapes me is not OTRS, it is how people are affected when they are personally sued in their own country. My understanding here is that people have to obey the laws of the land. When this means that certain things cannot be written about because it would be dangerous; ie write about politicians / corruption etc it makes sense not to pressure these people to write about this in the light of our precious NPOV. It is their risc that is to be kept into mind. I hope we will never see the day that a Wikimedia editor has his day in court when it is clear to all that he or she did everything within the guidelines of the Wikimedia projects.
Thanks, GerardM
On 2/1/06, Anthere Anthere9@yahoo.com wrote:
Anthony DiPierro wrote:
It seems to me that he is basically right. The doctrine is [[respondeat superior]], and it typically applies only to people working in an official capacity.
Anthony
I looked at the article [[respondeat superior]]. It typically applies only to people in a relationship of employer/employee.
"is a legal doctrine which states that an employer is responsible for employee actions performed within the course of the employment."
The problem is that there are only two people in that type of situation. Others are not a relationship of employer/employee. Neither the board members, nor the officers (except possibly Danny, but he is not employed as an officer).
So, I am not sure how this doctrine exactly applies to us. But let's imagine that for some reason, it actually applies to us.
What is missing is Gerard argument (which is to claim that board members and officers are better protected than volunteers) is the field of application of the protection.
What would be the field of application ? it would be the activities directly in relation with the Foundation itself. And only those activities. So, I do not see where the comparison stands.
Editorial field : If a board member edits an article and adds defamatory content, he is responsible just as a regular volunteer. This activity is unrelated to the Foundation activities and I doubt much the board member (or the officer) will be more protected than any one else. This is his own responsability to add defaming content to an article imho.
However, if a board member makes a real bad decision in terms of allowing expenses, it is normal that he holds a certain responsability. A volunteer not involved in the Foundation can *not* take that decision, so there is no reason why he would be held responsable. Hence, the first may be protected by the Foundation, but there is no reason to protect the second person from a decision he can not be involved. There is no lack of equality or unfairness, since the field of application only applies to the first person.
Now, what I think bother Gerard is this : what if a volunteer answers in OTRS and does so in the name of the Foundation, even though he has received no authority/delegation to do so? Will he be protected ? Probably not. He is even liable to the Foundation and should the Foundation be threatened by the answer given by the volunteer, the Foundation could indeed defend itself by suing the volunteer. In that sense, yes, the volunteer is *less* protected than the board member/officer. But here, I think the volunteer must use common sense and not "imply" he is talking in the name of the Foundation when he is not. Or if he does so, it is best he be careful of his answer.
And... for those of you who do not have access to OTRS, any message sent through info-en contains at its bottom the following message :
Disclaimer: all mail to this address is answered by volunteers, and responses are not to be considered an official statement of the Wikimedia Foundation. For official correspondence, you may contact the site operators at http://www.wikimediafoundation.org.
So, the risk is very limited indeed. It mostly relies on common sense and good faith from both parties.
ant
daniwo59@aol.com wrote:
Actually, as Wikipedia grows it requires help in oversight no less than it does in operations. A large organization entails legal and financial responsibilities. If we are sued, for whatever reason, we cannot simply throw another server at the person suing us.
The problem is that nobody outside the community has the moral authority to provide such oversight. Technical oversight and advice, sure---few people have issues with contracting outside lawyers where necessary to provide legal advice, and I doubt there would be too many objections to obtaining assistance with accounting, grantwriting, or anything else of that sort. Strategic direction and decision-making though, of the sort that the board has the authority to make, cannot be put in the hands of non-Wikimedians.
-Mark
Hello, Danny!
Actually, as Wikipedia grows it requires help in oversight no less than it does in operations. A large organization entails legal and financial responsibilities. If we are sued, for whatever reason, we cannot simply throw another server at the person suing us.
I agree entirely. And as our legal problems grow, it is equally essential that we make an important distinction. It is the distinction between law and ethics. It is entirely possible to act utterly immorally without violating any law; and in fact, many of the most immoral acts in history have been protected by unethical laws.
Furthermore, laws governing the Internet in particular are not static structures; they are ever-changing both in civil and common law jurisdictions due to the power of interpretation and precedent, and an organization with substantial financial assets is more than capable to influence legal decisions to its advantage (and, eventually, even the process used to create laws).
Wikimedia, as an organization, must therefore cherish, preserve and maximize its core principle of openness. In this process, lawyers are servants to the community and not the other way around. Lawyers must never dictate how the organization is run. The Board, elected and thereby empowered by the community, and the committees, open and representative, must instead consult the lawyers to seek ways to further our mission.
This is a quite important statement, as the interpretation of law is something that is treated by many with a sort of grudging respect few other professions enjoy, and it is easy for lawyers to eloquently make a case, since that it is their job. That lets them quickly gain influence. Lawyers, also, will be inclined to be extremely cautious and overly protective in their legitimate desire to minimize harm. An organization run by lawyers would naturally evolve into a closed, corporate, inflexible structure full of rigid procedures that impede the work of both paid employees and volunteers.
Such an organization will be entirely incapable of dealing with the very real challenges we have set ourselves. We have set these challenges the moment we have decided to accept projects like Wikibooks: free textbooks for every person on the planet. Wiktionary: all words, all meanings, all languages. Wikisource and Commons: free media of all types. Wikinews: free news presented from a neutral point of view. And so forth.
If we are serious about these goals - and some of the others we may set ourselves, including a subset of Jimmy's "10 things that need to be free" http://ross.typepad.com/blog/2005/08/jimbos_problems_1.html - then we cannot allow ourselves to turn into the non-profit equivalent of AOL. Those who live by the sword, perish by it. If we compete like a corporation, we will lose like a corporation, we will be replaced by a corporation.
In our 5 years of existence, we have not even managed to achieve that one goal we have been talking about from the beginning: stable versions. Wikipedia 1.0. Let's not even begin to talk about "every single human being on the planet". This is not because we have been too open, but because we have been too closed, and highly atypical in our organizational model even by standards of the typical non-profit. No matter, mistakes happen. The only unforgivable mistake is not to learn from the last one.
Yes, there are legal questions to be answered. But they are questions, not answers, and they are not as difficult as you may think they are to deal with. When I proposed Wikinews on this very list, I still remember the feedback I got. "The legal problems we're going to have with this will make this a nightmare! We can not shoulder this responsibility!"
It was these words of warning which inspired me then to come up with a very complex review process that was used initially on the English Wikinews to ensure that we did not publish libelous claims. And it was after Jimmy's intervention that I decided to get rid of this process, which turned out to be disastrously inefficient, especially without special tools. Have we had any major legal problems with Wikinews since then? Nothing we couldn't handle, in spite of about 15,000 articles published so far.
And let us not forget Wikipedia itself. We all remember the major media campaigns of the last year. Scrambling for answers, some quick and questionable countermeasures were taken. But let's be honest. If we had consulted a team of lawyers before starting Wikipedia to tell us whether this could become a libel issue, we would have never gotten past 10,000 articles. Maybe we would still be at Nupedia's 30. Let's be careful not to break our processes from the top, but instead, let's try to improve them from the bottom.
So, let me repeat. The goals come first. The legal problems are solved to achieve these goals. And legal advice must, always, be taken with a great deal of skepticism, and if possible, solicitation of alternative answers. Yes, sometimes it may even be a good idea to utterly ignore it and take whatever risk is gloomily predicted. When talking to a lawyer, it is often good to know beforehand what you _want_ to do, or they will only tell you what you _cannot_ do. The fairly unhelpful legal study commissioned by the German chapter is an example of that.
The English Wikipedia alone currently has more than 850,000 registered users. Among them: students, physicists, architects, photographers, musicians, nuclear engineers, businesspersons, historians, computer scientists (loads of them), comedians, midwives, soldiers, judges, ethologists -- I could go on, but you could just check [[List of occupations]] yourself and pick some randomly. This eclectic mix of people is an asset that we _must_ utilize if we are to come even close to achieving our goals.
Our goal, then, is to build a global network of human beings to revolutionize knowledge on all levels of society, through businesses and institutions and individuals, establishing cooperations and partnerships numbering in the thousands, receiving financial support from foundations, institutions, businesses, governments and individuals of several million dollars every year to further our mission.
And this is only possible if we empower individuals.
Now, there are perfectly reasonable ways to institute measures of control, such as consensus processes and voting and multiple organizational layers, before potentially legally problematic endeavors are undertaken. As long as we avoid bottlenecks caused by single individuals being equipped with extraordinary decision-making power, we should be fine.
To, out of fear, not build and develop a culture of openness in our organizational processes, would be disastrously wrong and kill Wikimedia before it has even started. Instead of following old models, Wikimedia should _set_ a model of what an open organization could be. In fact, ideally, I would like to see us publish an "Open Organization Manual" on Wikibooks or elsewhere, collecting our experiences and recommending workflows for non-profit organizations that have worked for us.
Funnily enough, it is one of our partner companies, Directmedia Publishing, that is experimenting with publishing as much information as they can about their company and their upcoming products and strategies openly on a wiki - wiki.directmedia.de - and that has been fantastically successful at working with both volunteers and employed professionals. They are, after all, the makers of the German Wikipedia DVD, whereas we still do not have an English one or seem to be much closer to this goal than one year ago.
I doubt that Directmedia is as open as it could be, but when our for-profit partner companies are getting the better of us when it comes to openness and participation, we should start seriously reconsidering the ways we do things.
And let us not forget, finally, that a lack of openness can bring out the very worst in people: the lust for power, control, and money. Pure, unadulterated greed. As an organization that gets its money from small donations by people all over the world, we have a non-negotiable responsibility to make sure that our donated money is spent wisely and efficiently, and transparency is the best to prevent corruption and unnecessary centralization. As an organization, we have to answer to the people who pay our hardware and employees' salaries. When someone asks one of us: "What do you do with this money?" Our answer should never be: "None of your business!"
I therefore will state here, again, my hope that the forthcoming organizational changes will be debated in an open manner, and that they will empower the greatest number of individuals possible to turn Wikimedia into the incredible success that Wikipedia has been so far.
Sincerely,
Erik
wikimedia-l@lists.wikimedia.org