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News from the Wikimedia Foundation and about the Wikimedia movement

Wikimedia Foundation seeks declaratory relief in response to legal threats from Internet Brands

(Jan. 3, 2013 Update: On December 21, 2012, Internet Brands filed its Answer to the Wikimedia Foundation’s Complaint. Internet Brands’ Answer “generally and specifically denies each and every material allegation of the Complaint,” and asserts a number of affirmative defenses.  A copy of Internet Brands’ Answer can be found here.)

(Dec 14, 2012 Update: the Court overruled Internet Brands’ demurrer (“motion to dismiss”), finding that the Wikimedia Foundation’s complaint was “properly pled.” A copy of the Court’s December 14, 2012 order can be found here. As a result of the Court’s ruling, Internet Brands must now answer the Wikimedia Foundation’s complaint. Internet Brands must file its answer to the complaint within ten (10) days of its receipt of notice of the Court’s ruling.)

(Dec. 7, 2012 Update: Internet Brands filed a reply brief in support of its demurrer (“motion to dismiss”) to the Wikimedia Foundation’s state court complaint. A copy of the reply brief can be found here. On December 11, 2012, the Wikimedia Foundation objected to Internet Brands’s reply brief on the grounds that it was improperly filed. The Wikimedia Foundation asked the Court to disregard Internet Brands’s reply brief and strike it from the record. A copy of the Wikimedia Foundation’s objection can be found here.)

(Nov. 28, 2012 Update: The federal district court in Los Angeles has now issued its written order on Ryan’s anti-SLAPP motion and motion to dismiss. A copy of the order is available here. The order is consistent with our prior report following the hearing on November 19. While we had hoped that the court would reach the merits of Ryan’s anti-SLAPP motion, the dismissal of the entire suit nonetheless represents a victory for Ryan and volunteer James Heilman (who was also named in the suit).

Meanwhile, the Wikimedia Foundation is proceeding forward with its lawsuit against Internet Brands in San Francisco. Internet Brands has filed a demurrer (motion to dismiss), the hearing for which has been postponed to December 14. The court has issued a tentative ruling on that motion, which is available here. In the tentative ruling, the court indicates that it is inclined to rule against Internet Brands. We will update you further after the hearing.)

(Nov. 19, 2012 Update: Ryan Holliday appeared in federal court to argue the anti-SLAPP motion he filed on September 26, 2012.  Because Internet Brands abandoned its claim under the federal Lanham Act (the federal claim that asserted Ryan had helped to start a new travel wiki called Wiki Travel Guide), the court found no basis for continuing to keep federal jurisdiction over the case and dismissed it without ruling on the anti-SLAPP motion.)

(Nov. 5, 2012 Update: On Monday, November 5th, the Wikimedia Foundation filed its opposition to the Demurrer filed by Internet Brands in the Superior Court of the State of California County of San Francisco.)

(Nov. 2, 2012 Update: On November 2, 2012, Ryan Holliday and Internet Brands jointly asked the Court to continue the hearing on Ryan’s anti-SLAPP motion and motion to dismiss from November 5, 2012 to November 19, 2012, to allow the parties time to discuss a possible resolution. The Court granted the request. A copy of the parties’ request to the Court can be found here. A copy of the Court order granting the request can be found here.)

(Oct. 23, 2012 Update:  On Monday, October 22, 2012, Ryan filed his Reply to Internet Brands’s Opposition to Ryan’s anti-SLAPP motion and motion to strike.  A link is here.  The Court is scheduled to hear Ryan’s motion on November 5, 2012.)

(Oct. 15, 2012 Update: IB has filed a demurrer (motion to dismiss) the Foundation’s lawsuit for declaratory relief on the ground that it does not contest the relief requested and so there is no controversy to adjudicate.  The hearing on the demurrer is set for November 19.)

(Oct. 12, 2012 Update: Internet Brands filed its Opposition to Defense Special Motion to Strike and Motion to Dismiss in United States District Court. A link is here. Ryan’s response is due on 10/22.)

(Sept. 26, 2012 Update: On Wednesday, September 26, 2012, Ryan filed an anti-SLAPP motion and motion to dismiss.  This motion seeks dismissal of all the claims against him now pending in federal court and also asks for an award of attorneys’ fees against Internet Brands.)

(Sept. 20, 2012 Update:  On Sept 19, 2012 Ryan filed papers to remove (transfer) Internet Brands’ lawsuit from state court (Los Angeles County Superior Court) to federal court (the United States District Court for the Central District of California. Those papers are publicly accessible, and a PDF copy can be found here).

(Sept. 13, 2012 Update: Today we filed an amended complaint in our San Francisco lawsuit to correct the inadvertent misstatement about Heilman being an administrator.  We initially thought we could do this by filing a document called an errata, but that proved not to be allowable in state court.   Our amended pleading will in all respects be the same as before, but will now omit some language that called Heilman an  “administrator.”)

(Sept. 5, 2012 Update: one of the community members named by Internet Brands in their summons has uploaded the documents he was served on Wikimedia Commons, available here)

Today the Wikimedia Foundation filed a suit in San Francisco against Internet Brands seeking a judicial declaration that Internet Brands has no lawful right to impede, disrupt or block the creation of a new travel oriented, Wikimedia Foundation-owned website in response to the request of Wikimedia community volunteers. Over the summer, in response to requests generated by our volunteers, the Wikimedia community conducted a lengthy Request For Comment (RFC) process to facilitate public debate and discussion regarding the benefits and challenges of creating a new, Wikimedia Foundation-hosted travel guide project. The community extended the RFC at the Wikimedia Foundation Board’s request to allow for greater community input, and to encourage input from Internet Brands. Once concluded, the RFC process revealed the community’s desire to see a new travel project created. The Wikimedia Foundation Board supports the community’s decision and is moving forward with the creation of this new project.

Unfortunately, Internet Brands (owner of the travel website Wikitravel) has decided to disrupt this process by engaging in litigation against two Wikitravel volunteers who are also Wikimedia community members (one of those community members posted a copy of the summons they received, available here). On August 29, Internet Brands sued two volunteer administrators, one based in Los Angeles and one in Canada, asserting a variety of claims. The intent of the action is clear – intimidate other community volunteers from exercising their rights to freely discuss the establishment of a new community focused on the creation of a new, not-for-profit travel guide under the Creative Commons licenses.

While the suit filed by Internet Brands does not directly name the Wikimedia Foundation as a defendant, we believe that we are the real target. We feel our only recourse is to file this suit in order to get everything on the table and deal head on with Internet Brand’s actions over the past few months in trying to impede the creation of this new travel project.

Our community and potential new community members are key to the success of all of our projects. We will steadfastly and proudly defend our community’s right to free speech, and we will support these volunteer community members in their legal defense. We do not feel it is appropriate for Internet Brands, a large corporation with hundreds of millions of dollars in assets, to seek to intimidate two individuals.

This new, proposed project would allow all travel content to be freely used and disseminated by anyone for any purpose as long as the content is given proper attribution and is offered with the same free-to-use license. Internet Brands appears to be attempting to thwart the creation of a new, non-commercial travel wiki in a misguided effort to protect its for-profit Wikitravel site.

The Wikimedia movement stands in the balance and the Wikimedia Foundation will not sit idly by and allow a commercial actor like Internet Brands to engage in threats, intimidation and litigation to prevent the organic expression of community interest in favor of a new travel project, one that is not driven by commercial interests.

The mission of the Wikimedia Foundation is to empower and engage people around the world to collect and develop educational content under a free license or in the public domain, and to disseminate it effectively and globally. We are devoted to creating and nurturing free knowledge projects supported by volunteers. Our actions today represent the full stride of our commitment to protect the Wikimedia movement against the efforts of for-profit entities like Internet Brands to prevent communities and volunteers from making their own decisions about where and how freely-usable content may be shared.

Kelly Kay, Deputy General Counsel

28 Responses to “Wikimedia Foundation seeks declaratory relief in response to legal threats from Internet Brands”

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  1. davdavi says:

    Why should IB be litigating about this?

  2. davdavi says:

    BE IT RESOLVED BY TH PERSONS OF THE WORLD THAT the InterNet is a free resource and that all persons who use it shall be free to engage in any project of their choice notwithstanding opposition or resentment by a self-interested commercial actor.
    BE IT FURTHER RESOLVED THAT the Wikimedia Foundation is benevolent in its intent and valid in its argument, THAT wikis are free communities and that INTERNET BRANDS, INC. is not the sole owner of WIkiTravel and that it DOES NOT TO ANY EXTENT OWN WIKIVOYAGE.
    (See Ownership and Possession of the Internet Act, Public Wiki Chapter, Section: On Lawsuits by External Corporations at revopa.webs.com/oapotina for more information.)

  3. Jonathan says:

    Andy, if they did what you say, then they have done the very definition of forking. And forking is part of the license that IB agreed to! There is nothing unethical about it.

  4. We have to fight to support our freedoms in all the sites and Internet is one of them

  5. Andy says:

    Seems to me if they were administrators of Wikitravel and went to Wikimedia – taking content along with them – that seems to be at least highly unethical, if not outright theft or piracy.

  6. Mister Cat says:

    David, what I read seemed to be focusing on their use of their status as Wikitravel insiders, and access to Wikitravel resources, to attempt to migrate users and thus damage Wikitravel. See specifically section 30. Whether it’s forbidden by contract, I can’t say, but that certainly does seem out of line to me.

  7. FT2 says:

    Obvious stuff is obvious. IB thinks a provider of a service cannot say to members of the public “we’re prepared to meet your needs” when the present service supplier alienates members of the public on its site.

    IB, this is the take away:

    1/ The right to “up sticks and leave”, complete with content, is a right that IB/Wikitravel contractually agreed with EVERY EDITOR WHO HAS EVER ADDED THEIR CONTENT TO THAT SITE. It’s called the Right To Fork. You might regret that, but you knew the terms, and knew their participation was linked to your custodianship and non-interference, and conditional on their whim and wish.

    2/ You own the servers and the name “Wikitravels.org”, but (like Wikimedia) you do NOT own –

    * Members of the public who by freewill wish to write about travel, and have till now used your system rather than another provider’s system
    * Content written by members of the public, every last one of whom gave legal permission up front at writing, for anyone to copy and reuse for any purpose
    * The community made up of those members of the public who owe you nothing (because a club met by individual members turning up customarily in your building for a year and voluntarily decorating it, doesn’t mean you own the club!)
    * The word “Wiki” (it’s generic and wide use)
    * The right to complain about non attribution that has not happened and fairly clearly is not intended to happen

    3/ The internet is a free market. Service providers who cause endemic concerns lose users. You cannot “usurp” a community. You can merely fail so badly that they become desirous of switching to another supplier and discuss as members of the public and with other suppliers whether they can get better. That is their right.

    4/ If you make grossly inaccurate claims, the online world (and the courts) will just laugh at your attempt to keep by force what you have no right to. This means you do NOT –

    * Mis-describe the email at [30] in ways that DIRECTLY contradicts your claims at [29+31]. That’s funny. It clearly says the email authors write on behalf of FELLOW EDITORS (admins) about migrating the COMMUNITY. NOT IB, NOT Wikitravel — and very clearly says it.
    * Mis-describe members of public as if staff, or bound to honor IB interests [14]
    * Claim that you can “usurp” members of the public that don’t belong to IB and had deep and long term dissatisfaction with IB anyway.
    * Claim that users are contacted by use of “personal information” when any names and emails were only available because private individuals wished them to be, and presumably they wished them to be for the purposes of contact.
    * Claim that administrative access is given by IB’s gift when it is in fact given by the community. (IB configured the servers and previously committed to allow the community internal self direction)
    * Claim the individuals sued benefit in ways they clearly never could (“defendants are profiting” “Defendants have been enriched” [50, 58] – orly?) (“Defendants use of the trademark” “their website” [38,42] but these persons do not intend to use it and do not operate a website) (“defendants to receive the benefit” [44] – but they will not).

    5/ Do NOT imply a conspiracy at every second clause to make your case look strong, name the alleged conspirer claimed to be an apparent prime mover, allege this conspirator is the one who stands to financially benefit, then NOT ADD THEM AS A PARTY. Now why would an honest plaintiff believing in their case, do that…..

    IB’s lawsuit tries to describe “forking” and discussions about forking, as a “conspiracy” [33, 54+]. It is specific in claiming a “Wikimedia conspiracy” and marginalizes charitable activities apparently to create an illusion of profit or other gain [17], claims actions were “for the benefit of the Wikimedia Foundation” [20] claims the intent to “create the illusion… that the Wikimedia Foundation out of generosity and benevolence would…” [21], claims Wikimedia “more clearly revealing their true intent… the WIkimedia Foundation asked…” [27], alleges “potentially” but fails to join as parties “the Wikimedia Foundation and [officers and others]” [35], “defendants unauthorized use of a mark” [in fact it would be WMF's use] [43, 44, 47], “defendants are profiting” [WMF not indvidual volunteers] [50+], “all others in active concert with any of them” [Prayer 2]… and then quietly omits Wikimedia as a party. SPEAKS VOLUMES :)

    TL;DR? One line – You cannot “usurp” a community or retract inconvenient rights agreed with members of the public who use you to host their writings. You can only persuade them you’re worth staying with, as in any free market, election, or policy decision. Apparently IB fears it failed to make a compelling case to stay. I suspect that is the unpalatable truth.

  8. David Gerard says:

    The suit as served on Ryan has been uploaded to Commons. It’s really quite the document and people should definitely read it too.

  9. I am glad that the Wikimedia Foundation began a quick response to harm which came to volunteers. The people named in the lawsuit were participating in a discussion for organizing greater community engagement. That the Wikimedia Foundation advocates for its volunteers makes me feel that Wikipedia is a safe place to collaborate on good volunteer projects with my peers around the world.

  10. David Gerard says:

    I urge everyone to read the PDF.

    The key point: Internet Brands is literally attacking the freedom to fork free content. They are attempting to proprietise people’s volunteer contributions to Wikitravel under CC by-sa, and intimidate volunteers (not employees) from contributing to forked copies.

  11. FT2 says:

    Nemo: slightly improved

  12. Nemo says:

    As a sidenote, https://en.wikipedia.org/wiki/Declaratory_relief is quite a weak article but the “parent” linked from it sheds some light.

  13. Steven Zhang says:

    Excellent – I’m proud to be a part of this organisation and that we stand up for what we believe in.

  14. FT2 says:

    Well written. It’s good to see dedicated knowledge contributors who wish only to contribute better, being supported after their decision is made. Also with IB now litigating against private members of the free knowledge world, it’s unfortunately probably best dealt with at this point rather than allowed to be played with.

    It’s worth noting the background context that suggests this is sadly needed. Wikitravel users have repeatedly stated (to IB and public) their concerns about “gaming” (as it is known on this site), including beliefs by some users that “fake” accounts (“sock puppets”) were operated by IB or its staff for the purpose of manipulating community discussions [1], and summary removal of access rights contrary to the rules agreed by that community [2]. Generally, as a community, Wiki and free knowledge editors have limited patience for perceieved wilful inappropriate behavior [3]. Apparently as a community, editors adding to the knowledge at Wikitravel had for some time looked for proper standards of hosting and patience ran out; as often happens then made worse by a decision on the part of IB staff to try and prevent discussion rather than properly address problems.

    I assume (hopefully) that it would not have got to this stage if IB had not attempted litigation first, and would have been dealt with by exchange of letters. Is the IB case filing against the content creators public yet?

    Either way, if the matters are not as stated, then it’s easy for IB to categorically say so in a few lines of reply, and let them say so. If not, then it’s better it is confirmed there is such intention (as it appears) and deal with it on the present basis (unfortunately).

    [1] http://wikitravel.org/wiki/en/index.php?diff=prev&oldid=1913130
    [2] http://wikitravel.org/wiki/en/index.php?diff=1912559&oldid=1912544
    [3] http://wikitravel.org/wiki/en/index.php?diff=1912544&oldid=1912542
    http://wikitravel.org/wiki/en/index.php?diff=1892451&oldid=1892444

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