[Foundation-l] Litigation costs

[Robert Rohde]

On Jan 8, 2008 4:26 AM, Mike Godwin <mnemonic at gmail.com> wrote:

>
> Robert Rohde writes:
>
> >  Obviously, we don't want to press law suits when we are in the
> > wrong, but we
> > also shouldn't be shying away from legally permissible fair use simply
> > because we are afraid that every so often there will be a fight over
> > it.  I
> > am oft-reminded that man has only those freedoms that he is prepared
> > defend.  Well, fair use is one of those freedoms, and in such
> > circumstances
> > that invoking fair use is a necessary and justified means of improving
> > Wikipedia/Wikimedia, we should be willing to defend that right.
>
> Then I think the obvious next question is, how much money (in dollars
> or Euros) should we be willing to allocate every year to the defense
> of cases we believe we will likely win?  Or, to put it another way,
> how much of our budget (in percentages) should we be willing to
> allocate every year to the defense of cases we believe we will win?
>
> I assume because of your position as stated here you believe we should
> be willing to spend all the money we now have (or more) in doing so,
> because to do anything less would be an unacceptable compromise.
>
> Don't mistake me for a wild idealist.  I recognize there do need to be
practical considerations, but if we are really planning for a $4M budget,
then setting aside say $200k (5%) to defend cases where we believe that we
are in the right seems like a more than reasonable starting point (in
addition to money set aside to address other legal issues).  Not to mention
that I continue to believe that a legal defense of Wikipedia would be a very
effective rallying point to draw additional funds and the support of like
minded organizations (e.g. EFF, etc.)

However, if we are really going to talk about practical legal concerns,
would anyone with inside information be willing to state exactly how many
times WMF has been sued over fair use concerns?  As far as I know, the
number of actual suits may even be zero.

I know Wikipedia gets copyright complaints.  Some are justified and we
should take down inappropriate materials.  A few are abusive (i.e.
nonsensical copyright claims with little to no support in law).  I can even
think of examples where obviously bogus complaints were willfully ignored,
but I can't think of a single example of a copyright complaint that actually
escalated to a law suit.  If you know different, please correct me.

So, if we are going to talk about the practical risk, then we ought to ask
whether the system as presently exists has actually ever resulted in a
demonstrably negative legal impact.  Wikimedia is an enormous and high
profile content provider.  If we have never (or almost never) been sued
regarding copyright then frankly, I suspect we are already too
conservative.  Simply as a product of our success we ought to expect and be
prepared to defend the occassional frivilous lawsuit.

-Robert Rohde