[Wikimedia-l] SOPA, threat or menace (was Russian Wikipedia goes on strike)

[Anthony]

On Thu, Jul 12, 2012 at 3:00 AM, Seth Finkelstein <sethf at sethf.com> wrote:
>> Anthony wrote:
>> Well, it also has to be read keeping in mind that it would be
>> borderline malpractice for him to have stated "if SOPA passes then
>> Wikipedia will be in violation of the law and forced to shut down" -
>> just in case SOPA actually did pass, forcing WMF to argue the exact
>> opposite.
>
> I perceive you've been very fortunate, in not having much experience
> with lawyers. Ponder if a health care mandate is a tax or not, or
> whether Mitt Romney thought it was in the past, or does now.

There's quite a difference between a President, a presidential
candidate, and a general counsel for a corporation.

> Moreover, there's already the problem you see in the argument where he wrote:
>
> "Wikipedia arguably falls under the definition of an "Internet search engine,"
>
> I'm quite sure that if SOPA actually did pass, WMF would then strongly
> argue the exact opposite, that Wikipedia absolutely does not fall
> under definition of an "Internet search engine" (as it is not a site
> "whose primary function is gathering and reporting, ... *indexed
> information* or *web sites* available elsewhere on the Internet")

Well.  1) I think Mr Brigham made a mistake in making a public
statement about this at all; however 2) He used the word "arguably".
If SOPA did (or does) pass, and WMF was charged with violating it
(which, frankly, would probably never happen), then surely they would
argue that Wikipedia is not an Internet search engine.  But not being
something and *arguably* falling under the definition of something,
are not mutually exclusive.

>> Without Citizens United upholding free speech of people who use the
>> assistance of corporations, something like PIPA would be much easier
>> to impose.  And the lobbying currently being done by WMF could very
>> well be outlawed.  The Wikimedia Foundation is, after all, a
>> corporation.
>
> The Wikimedia Foundation's legal issues with lobbying are very far
> from the Citizens United sort of case.

Well, yeah, sure.  And WMF's legal issues with copyright infringement
are very different from the sort of cases that would be prosecuted
under PIPA or a PIPA-like law too.

But if the court in Citizens United had opened the door to restricting
nonprofit organizations from engaging in one type of grassroots
lobbying, I don't see how they could leave the door closed regarding
other types of grassroots lobbying, such as the type which WMF is
engaging in.  And really, I don't see how the could leave the door
closed regarding speech in general involving corporate expenditures.
Political speech is, for good reasons, the type of speech which is
most heavily protected by the First Amendment.

> The primary legal issue for WMF here is its
> tax-exempt status and the restrictions which go along with that. Which,
> sigh, is not to assert that WMF violated any such legal restrictions,
> but only to point out that such legal restrictions will become a
> limiting issue long before any corporations-aren't-people campaign
> finance laws.

Not at all.  501(C)(3) charities are allowed to engage in quite a bit
of grassroots lobbying without losing their tax-exempt status (see
http://en.wikipedia.org/wiki/Direct_lobbying#Public_Charity_Lobbying_Law).
 If Citizens United had gone the other way, there would be nothing to
stop Congress from eliminating the ability of corporations to engage
in grassroots lobbying altogether.

>
>> I wonder if the WMF will shut down in protest should one of the
>> proposals to amend the constitution to overturn Citizens United gain
>> traction in Congress.
>
> Well, check if the WMF starts getting large donations from the likes
> of the Koch brothers or Karl Rove's Super PAC :-) .

Well, no...but there is
http://www.infodocket.com/2012/01/03/wikmedia-foundation-hires-dc-lobbying-firm/

And, of course, there is the (grassroots, not direct) lobbying that
WMF has already (visibly) engaged in.  I'm not sure if we'll have any
way to know if they've been involved in any direct lobbying until the
2011-2012 990 comes in.

> Oh, excuse me,
> it would be a community decision based on the extreme danger to
> Wikipedia from such measures (hmm, Wikipedia relies on the US
> Constitution, so anything which amends that COULD KILL WIKIPEDIA!!!).

Right.  Except, well, it doesn't fit in the political persuasion of
most Wikipedians.  Not as strongly as "copyright infringement is not
theft", anyway.