[WikiEN-l] Re: Legal paranoia

[Ray Saintonge]

Daniel P. B. Smith wrote:

>> From: Anthony DiPierro <wikispam at inbox.org>
>>
>> Even then there is relatively little incentive for a traditional
>> encyclopedia to attack Wikipedia in the first place.
>
> I agree, but this assumes that the attacker is a) well-informed, b)  
> rational, c) primarily interested in his own business interests. My  
> personal interpretation is that the SCO business shows that this is  
> not always true. 

I would never start from the position that our potential opponents are 
poorly informed.  Underestimating your enemy is a  convenient way of losing.

There is nothing you can do to prevent lawsuits from those who want to 
act irrationally short of acting irrationally yourself.

If SCO's objective is to profit through litigating for license fees then 
their strategy is correct.  A correct strategy does not imply that you 
will always win.  It is correct strategy to be a pair of aces in the 
hole, but there are times when it doesn't work.  We don't know how many 
smaller companies received legal letters from the SCO attorneys, and 
were satisfied to pay a $10,000 license fee to avoid litigation.  It 
wouldn't be consistent with SCO's interests to go after the likes of 
Wikimedia because there is no financial reward to be gained; a simple 
injunction would not be enough to make the litigation worthwhile.  Now 
they've gone all in against the big boys; it's a rational poker strategy.

>> Besides, the support would come pouring in from all over
>> the place.  We'd probably get plenty of legal support donated to us.
>
> Agreed. And that sort of thing probably helped get Dmitri Sklyarov  
> out of jail. But my point is, he was _in_ jail for a couple of months. 

Jail is not a factor unless the copyright infringement is wilful.  Any 
reasonable good-faith argument that our use is fair is enough to prevent 
that possibility.

>> in a case like this where we're
>> actually in the right, the support would be tremendous.
>
>> The only reason we should even consider backing down on this is if
>> there's a serious legal argument that keeping this list would somehow
>> taint the rest of the encyclopedia.  I highly doubt this is true, but
>> I'm not a lawyer, and if a lawyer says this is plausible it's
>> something we should look at hard.
>
>
> The context of my comments was Jimmy Wales' comment in regard to the  
> Encarta list:
>
> >Opinions of our legal team are
> >divided about the issue,.
>
> Lawyers looked at it and said _they weren't sure._ This is a  
> discussion about what a prudent persons does when the lawyers say  
> _they're not sure._ You can interpret this to mean: "They're not sure  
> there's a problem, so let's not worry about it, and certainly lets  
> not worry about a list of _Britannica_ articles, or a _modified_ list  
> of Encara articles. Or you can interpret this to mean "That means  
> they're not sure this is OK so let's back away a bit?"
>
> When the lawyers say they're not sure, the question is whether the  
> glass is half prudent or half paranoid, 

It also means that reasonable doubt is in our favour.

>> But otherwise, if it's just a list, I don't see the problem.  The
>> worst reasonable case scenario is that we have to take it down.
>
> I think _that's_ a very good point. 

It's a key point.  A reasoned position that a particular entry is fair 
use should be enough to carry us to the point where we receive a take 
down order. We should only need to consider the cost effectiveness of 
litigation if we choose to oppose the take down order.  The irony with 
the Britannica material is that by the time we receive a take down order 
for that list there may be nothing left to take down.  The progress in 
absorbing that material has been that fast. :-)

>> A long drawn out legal battle; a chance to set a precedent that can be
>> used in the future; that'd probably be a good thing.
>
> And that's where I part company with you. I am interested in helping  
> to write an encyclopedia, not help fight in long drawn out legal  
> battles.

I at least agree insofar as we don't go looking for fights, but there 
are times when we need to stand up for what we believe.  Nevertheless, 
one of the factors in choosing our battles should be whether that battle 
serves our greater purpose.