On 10/21/07, Ron Ritzman ritzman@gmail.com wrote:
What do you think the WMF should do if it *did* have a clear legal case? What if someone called their proprietary encyclopedia "Wikipedia Premium Edition"?
[snip]
Someone correct me if I'm wrong but I think that under the GFDL, anybody is free to take our content, repackage it and sell it for a zillion dollars without giving us shit as long as they also license it under the GFDL allowing another someone to sell it for a zillion dollars and not give them shit. Isn't that one of the reasons we don't allow "non commercial use only" and "Wikipedia only" licenses on images?
Indeed but the there are two key points you might be missing: 1) They can take the content but only if they keep it under the GNU Free Documentation License, as you noted, which pretty much precludes the 'proprietary' mentioned in the ancestor post.
2) there is that they can take the *content*, not the *name*. The content is free the name is not.
And why should or would the name be free? While trademarks are often regarded as assets of the trademark holder there is another completely valid way of looking at them: Trademarks are a form of consumer protection, a type of anti-fraud device. They exist to protect the public from being mislead by someone trying to pass off something else as Wikipedia that clearly isn't.
I could see a good argument that the name should belong to 'the community' or 'the authors' rather than the WikiMedia foundation....
But presenting ownership of a trademark directly to a nearly indefinable, amorphous, self-selecting, and often internally conflicted, blob of people randomly scattered about the globe is probably impossible legally and probably undesirable.
So, we have the WikiMedia Foundation a charitable non-profit with a substantially editor-elected board of trustees which fills that role of handling various things that the distributed users do not or can not do. The 'community' of authors and the WMF have a healthy and mutually beneficial relationship.
The WMF's absolute authority over the daily operation of the site and all legal matters is balanced by the fact that all of the content comes from the community of editors, most of the funding comes from the public, and that the foundation isn't even a copyright holder over the content ... they use it at the mercy of free licenses just like anyone else. (Since the WMF does not have even the slightest privileged position over the content licensing, the community could manage a successful fork if something terrible happened).