I am happy to announce that we have completed the most collaborative, interactive drafting of a proposed terms of use for any major website.   For more than 120 days, the Wikimedia community reviewed, drafted, and redrafted with more than 200 edits modifying the original proposal.  While accumulating 19,000 page views, community members offered comments, edits, and rewrites.  Complete or partial translations appeared in 20+ languages.   With over 4500 lines of text and as many words as Steinbeck’s classic “The Grapes of Wrath,” discussion helped ensure a thoughtful process.

These proposed terms of use are intended to replace our present version. It is not commonly known that our present terms are nothing more than a licensing agreement, not traditional terms of use. The new proposed terms of use represent a step forward and a more comprehensive view of the Wikimedia projects.  Among other things, they provide for:

• Better understanding:  The proposed agreement includes an easy-to-read template summary to help facilitate understanding of the terms.
• Stronger security: The proposed agreement prohibits a number of actions – like installing malware – that could compromise our systems. We thought we should be clear as to what is unacceptable in this area, though most of these restrictions will not be surprising or represent any real change in practice.
• Clearer roles: We have heard a number of community members asking for guidance, so we set out clearly the roles and responsibilities of the community, including editors and contributors.  The proposed agreement also seeks to provide guidelines to help users avoid trouble.
• More community feedback: With this version, and with each major revision afterwards, we want the community to be involved. So the proposed agreement gives users at least a 30-day comment period before a major revision goes into effect (with Board approval). There is a 3-day exception for urgent legal and administrative changes.
• Clearer free licensing: We feel our present agreement is somewhat confusing on the free licensing requirements. The proposed agreement attempts to explain more clearly those requirements for editors (without changing existing practices).
• More tools against harassment, threats, stalking, vandalism, and other long-term issues: The proposed agreement would make clear that such acts are prohibited. Novel for us, the agreement raises the possibility of a global ban for extreme cross-wiki violations, a need that we have heard expressed from a number of community members.  While the global ban is authorized by the terms of use, it will be implemented by community policy.
• Better legal protection: The proposed agreement incorporates legal sections that are commonly used to help safeguard a site like ours, such as better explanation of our hosting status as well as disclaimers and limitations on liability for the Foundation.

If you’re interested in more detailed reasons why we are proposing updated terms of use, you can find a thorough discussion here.  Suffice it to say, we are consistent with other like-minded organizations, which have incorporated similar agreements, including Internet Archives, Creative Commons, Mozilla Firefox, Open Source Initiative, Project Gutenberg, Linux Foundation, StackExchange, WikiSpaces, and WordPress.com.

Specifically, in its more than 320 printed pages of discussions, the community raised, discussed, and resolved more than 120 issues.  There were many substantive and editorial changes that greatly improved the document.  Much language was deleted or tightened at community request.  As part of this process, the community addressed a number of interesting topics, such as:

• Whether we should emphasize that the community (not WMF) is primarily responsible for enforcing policy:  We agreed to underscore this primary responsibility of the community to avoid any confusion.
• Whether we should include an indemnification clause to the benefit of WMF:   We chose to delete it in light of community concerns.
• Whether we should adopt a “human-readable” version to facilitate understanding:  We agreed to incorporate such a summary.
• Whether we should expressly prohibit linking to certain sites:  We chose not to, deleting earlier language unacceptable to the community.
• Whether we should require civility and politeness:  With varying views, we decided to “encourage” it.
• Whether the WMF should provide resources to support forks:  We chose not to address this now, though we agreed to highlight the discussion to the Board for its consideration.
• Whether we should emphasize the independent roles of chapters:  We chose to do so.
• Whether we should increase the liability limitation for WMF from $100 to $1000:  We answered affirmatively.
• Whether we should provide for additional comment time after the posting of translations in three key languages:  We said “yes” to address international community concerns.

From a process standpoint, the legal department will circulate the proposed terms of use within the Wikimedia Foundation internally, and then the department anticipates recommending their adoption to the Board.  We expect the Board will take some time to review before reaching a final decision.

Needless to say, this project would have been impossible without the hard work and expertise of our community. Through their tireless effort, the community mentored important and deep discussions on critical subjects for Wikimedia.  The process forced us to think about issues that we had never addressed directly. In short, the value of collaboration quickly became obvious. Its magic created a document many times better than the original.

Geoff Brigham, Wikimedia Foundation

For the past several days, Wikipedia editors have been discussing whether to stage a protest against the proposed Stop Online Piracy Act (SOPA).  I’ve been asked to give some comments on the bill and explain what effect the proposed legislation might have on a free and open Internet as well as Wikipedia.  My goal in this blog post is to provide some information and interpretation that I hope will be helpful to Wikipedia editors as they discuss the bill.

SOPA has earned the dubious honor of facilitating Internet censorship in the name of fighting online infringement. The Wikimedia Foundation opposed that legislation, but we should be clear that Wikimedia has an equally strong commitment against copyright violations. The Wikimedia community, which has developed an unparalleled expertise in intellectual property law, spends untold hours ensuring that our sites are free of infringing content. In a community that embraces freely-licensed information, there is no room for copyright abuses.

We cannot battle, however, one wrong while inflicting another. SOPA represents the flawed proposition that censorship is an acceptable tool to protect rights owners’ private interests in particular media.  That is, SOPA would block entire foreign websites in the United States as a response to remove from sight select infringing material.  This is so even when other programs like the Digital Millennium Copyright Act have found better balances without the use of such a bludgeon. For this reason, we applaud the excellent work of a number of like-minded organizations that are leading the charge against this legislation, including the Electronic Frontier Foundation, Public Knowledge, Creative Commons, Center for Democracy and Technology, NetCoalition, the Internet Society, AmericanCensorship.org, and others.

On Tuesday, after receiving input on the original version of the bill, the House Judiciary Committee issued a new version of SOPA for its mark-up scheduled for this coming Thursday.  A vote on that mark-up may take place on the same day.   At the end of this article, I provide a summary of the most relevant parts of this new version of SOPA as well as a summary of the legislative process (which you can also follow here).

In honesty, this new version of the bill is better (and credit goes to the Judiciary staff for that). But, it continues to suffer from the same structural pitfalls, including its focus on blocking entire international sites based on U.S.-based allegations of specific infringement.  Criticism has been significant.[1]  Representative Darrell Issa, a California Republican, for example, felt the bill “retains the fundamental flaws of its predecessor by blocking Americans’ ability to access websites, imposing costly regulation on Web companies and giving Attorney General Eric Holder’s Department of Justice broad new powers to police the Internet.”

Members of our community are weighing whether a protest action is appropriate.  I want to be very clear: the Wikimedia Foundation believes that the decision of whether to stage a protest on-wiki, such as shutting down the site or putting a banner at the top, is a community decision. The Wikimedia Foundation will support editors in whatever they decide to do. The purpose of this post is to provide information for editors that will aid them in their discussions.

I’ve been asked for a legal opinion. And, I will tell you, in my view, the new version of SOPA remains a serious threat to freedom of expression on the Internet.

• The new version continues to undermine the DMCA and federal jurisprudence that have promoted the Internet as well as cooperation between copyright holders and service providers.  In doing so, SOPA creates a regime where the first step is federal litigation to block an entire site wholesale: it is a far cry from a less costly legal notice under the DMCA protocol to selectively take down specified infringing material.   The crime is the link, not the copyright violation.  The cost is litigation, not a simple notice.

• The expenses of such litigation could well force non-profit or low-budget sites, such as those in our free knowledge movement, to simply give up on contesting orders to remove their links.  (Secs. 102(c)(3); 103(c)(2))  The international sites under attack may not have the resources to challenge extra-territorial judicial proceedings in the United States, even if the charges are false.

• The new version of SOPA reflects a regime where rights owners may seek to terminate advertising and payment services, such as PayPal, for an alleged “Internet site dedicated to theft of U.S. property.”  (Sec. 103(c)(2))  A rights owner must seek a court order (unlike the previous version) (Sec. 103(b)(5)).  Most rights owners are well intentioned, but many are not.[2]  We cannot assume that litigious actions to block small sites abroad will always be motivated in good faith, especially when the ability to defend is difficult.

• Although rendering it discretionary (Secs.102(c)(2)(A-E); 103(c)(2)(A-B)), the new bill would still allow for serious security risks to our communications and national infrastructure. The bill no longer mandates DNS blocking but still allows it as an option.  As Sherwin Siy, deputy legal director of Public Knowledge, explained:  “The amendment continues to encourage DNS blocking and filtering, which should be concerning for Internet security experts . . . .”

• The Electronic Frontier Foundation advises that the new proposed legislation still targets tools that might be used to “circumvent” the blacklist, even though those tools are essential to human rights activists and political dissidents around the world.

More specifically with respect to Wikimedia, the new version is an improvement, but, in addition to the reasons listed above, it remains unacceptable:

• Wikipedia arguably falls under the definition of an “Internet search engine,”[3] and, for that reason, a federal prosecutor could obtain a court order mandating that the Wikimedia Foundation remove links to specified “foreign infringing sites” or face at least contempt of court sanctions.[4]  The definition of “foreign infringing sites” is broad[5] and could well include legitimate sites that host mostly legal content, yet have other purported infringing content on their sites.   Again, many international sites may decide not to defend because of the heavy price tag, allowing an unchallenged block by the government.

• The result is that, under court order, Wikimedia would be tasked to review millions upon millions of sourced links, locate     the links of the so-called “foreign infringing sites,” and block them from our articles or other projects.   It costs donors’ money and staff resources to undertake such a tremendous task, and it must be repeated every time a prosecutor delivers a court order from any federal judge in the United States on any new “foreign infringing site.” Blocking links runs against our culture of open knowledge, especially when surgical solutions to fighting infringing material are available.

• Under the new bill, there is one significant improvement.  The new version exempts U.S. based companies – including the Wikimedia Foundation – from being subject to a litigation regime in which rights owners could claim that our site was an “Internet site dedicated to theft of U.S. property.”  Such a damnation against Wikimedia could have easily resulted in demands to cut off our fundraising payment processors.   The new version now exempts U.S. sites like ours.   (Sec. 103(a)(1)(A)(ii))

In short, though there have been some improvements with the new version, SOPA remains far from acceptable. Its definitions remain too loose, and its structural approach is flawed to the core.  It hurts the Internet, taking a wholesale approach to block entire international sites, and this is most troubling for sites in the open knowledge movement who probably have the least ability to defend themselves overseas.  The measured and focused approach of the DMCA has been jettisoned.  Wikimedia will need to endure significant burdens and expend its resources to comply with conceivably multiple orders, and the bill will deprive our readers of international content, information, and sources.

Geoff Brigham
General Counsel
Wikimedia Foundation

[1.] http://www.cato-at-liberty.org/the-new-sopa-now-with-slightly-less-awfulness/ ;
http://cdt.org/blogs/david-sohn/1312proposed-revision-sopa-some-welcome-cuts-major-concerns-remain ;
https://www.eff.org/deeplinks/2011/12/sopa-manager’s-amendment-sorry-folks-it’s-still-blacklist-and-still-disaster

[2.] See http://www.chillingeffects.org/resource.cgi?ResourceID=101 (providing a list of articles documenting abuses that certain rights owners have engaged in within the DMCA context).

[3.] An “Internet Search Engine” is defined as “a service made available via the Internet whose primary function is gathering and reporting, in response to a user query, indexed information or web sites available elsewhere on the Internet.”  Sec. 101(15)(A).  This definition does not include services that retain “a third party that is subject to service of process in the United States to gather, index, or report information available elsewhere on the Internet.”  Sec. 101(15)(B).  Although not conceding the point, Wikimedia arguably does not appear to fall under this exemption.

[4.] Sec. 102(c)(3)(A)(i).  To ensure compliance with orders issued under Section 102, the Attorney General may bring an action for injunctive relief against any Internet Search Engine that knowingly and willfully fails to comply with the requirements of section 102(c)(2)(B) to compel such entity to comply with such requirements.

[5.] Generally speaking, a “foreign infringing site” is any U.S.-directed site, used by users in the United States, being operated in a manner that would, if it were a domestic Internet site, subject the site to liability for criminal copyright infringement, as well as other federal copyright or trade secret violations.  See Sec. 102(a)(1-2).

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Yesterday, the Electronic Frontier Foundation (EFF) filed an amicus (“friends of the court”) brief in Golan v. Holder, a case of great importance before the Supreme Court that will affect our understanding of the public domain for years to come. The EFF is representing the Wikimedia Foundation in addition to the American Association of Libraries, the Association of College and Research Libraries, the Association of Research Libraries, the University of Michigan Dean of Libraries, and the Internet Archive.

This case raises critical issues as to whether Congress may withdraw works from the public domain and throw them back under a copyright regime.  In 1994, in response to the U.S. joining of the Berne Convention, Congress granted copyright protection to a large body of foreign works that the Copyright Act had previously placed in the public domain.  Affected cultural goods probably number in the millions, including, for example, Metropolis (1927), The Third Man (1949), Prokofiev’s Peter and the Wolf, music by Stravinsky, paintings by Picasso, drawings by M.C. Escher, films by Fellini, Hitchcock, and Renoir, and writings by George Orwell, Virginia Woolf, and J.R.R. Tolkien.

The petitioners are orchestra conductors, educators, performers, film archivists, and motion picture distributors who depend upon the public domain for their livelihood.  They filed suit in 2001, pointing out that Congress exceeded its power under the Copyright Clause and the First Amendment of the U.S. Constitution.  They eventually won at the district court level, but that decision was overturned on appeal in the Tenth Circuit.   The U.S. Supreme Court – which rarely grants review – did so here.

Petitioners filed their brief last week, and you can find it here. We are expecting a number of parties to file “friends of the court” briefs.   The EFF’s brief can be found here.

The Wikimedia Foundation joined the EFF brief in light of the tremendously important role that the public domain plays in our mission to “collect and develop educational content under a free license or in the public domain, and to disseminate it effectively and globally.”  We host millions of works in the public domain and are dependent on thousands of volunteers to search out and archive these works.  Wikimedia Commons alone boasts approximately 3 million items in these cultural commons.  To put it bluntly, Congress cannot be permitted the power to remove such works from the public domain whenever it finds it suitable to do so.  It is not right – legally or morally.   The Copyright Clause expressly requires limits on copyright terms.  The First Amendment disallows theft from the creative commons.  Such works belong to our global knowledge.  For this reason, we join with the EFF and many others to encourage the Court to overturn a law that so threatens our public domain - not only with respect to the particular works at issue but also with respect to the bad precedent such a law would set for the future.

We anticipate the Court will reach a decision sometime before July 2012.

Geoff Brigham
General Counsel, Wikimedia Foundation