As part of the Wikimedia movement, there are entities such as chapters, the Wikimedia Foundation, thematic organizations, and user groups, established to support our shared global mission of freely sharing educational content. With the growth of these organizations comes a need for “good governance” — a recognition that movement entities are stewards for our contributors, donors and developers, who generously donate their time, expertise and money to promote the Wikimedia movement. Our organizations are called upon to use resources efficiently and carry out official positions for the benefit of the community. When they do not, they hurt the trust of the movement.

Last month, the Wikimedia Foundation and Wikimedia UK announced the release of the final report and recommendations regarding the governance of Wikimedia UK. The review was conducted by Compass Partnership, a noted management consultant company with particular expertise in evaluating nonprofit organizations. Although the report includes highly specific recommendations to be implemented by Wikimedia UK, as a whole, it suggests several foundational themes that may be broadly applicable to all movement organizations. Each of us (including myself) who holds positions entrusted by our community may benefit from the learnings of the report. The following ones are worth consideration by all of us in Wikimedia organizations.

• Maintain Respect and Professionalism. According to the UK report, strong and effective relationships are an essential ingredient of any movement involving multiple organizations in dispersed territories and cultures. To foster effective relations among Wikimedia groups, the report recommends that communications within the movement be respectful and professional. It also suggests that this tone should be set and modeled by those in entrusted positions in the movement – such as trustees, executives and employees. We need not avoid controversy and disagreement, but respectful and professional behavior benefits the community as a whole. It ensures we are talking about and solving issues that benefit the community in a constructive, objective and productive way.^[1]
• Keep Roles Within the Movement Separate from Your Personal Interests. The report suggests that, to best serve the movement, community members should keep their Wikimedia organizational roles separate from their own personal interests. For example, a trustee should never use that position within the movement to advance their own financial interest. Similarly, when individuals within the movement are acting in their personal capacity, for their own benefit, they should not rely on their Wikimedia title or office in any way, and they should be clear about it.^[2]
• Be Transparent With Regard to Conflicts of Interest and Cooperate in Resolving Them. As many of you may know, the WMF Board is currently considering the proposed “Guidelines on the Disclosure of Potential and Actual Conflicts of Interest in Requesting Movement Resources,” which were developed through a six-week consultation period with the community. The guidelines encourage community members to disclose actively their potential conflicts of interest when requesting Wikimedia resources, and also provide guidance regarding (1) what circumstances may constitute a conflict of interest, and (2) when to disclose such circumstances to the appropriate decision-maker within the movement. The community’s efforts to improve the handling of conflicts of interest are recognized in the UK report. The report specifically discusses these guidelines and highlights their value in providing a framework for the disclosure of potential conflicts of interest so that they may be fully evaluated and managed.

  The UK report explains that, in a charitable organization, the highest standards should be followed in managing conflicts. If an employee, officer or trustee of a movement entity believes there is any possibility that they present a potential or actual conflict of interest, this should be raised immediately with the appropriate decision-maker. Furthermore, the employee, officer, or trustee should be forthcoming and transparent with regard to all relevant facts, so the appropriate decision-maker may fully assess the potential conflict.^[3]

• Go Beyond the Minimum Requirements of Law. Finally, the report recognizes that the demands and values of the worldwide Wikimedia movement call for us all to hold ourselves to the highest standard, going beyond the basic legal requirements.

  The WMF Board encouraged as much in its Resolution on Organizational Best Practices, suggesting that “every organization in our movement must go beyond local regulatory requirements and adopt our movement’s unique principles and best practices around governance, transparency, and accountability.” In the words of the Board, movement resources should be used “to achieve the highest possible impact in the pursuit of our vision.”^[4]

By considering these principles as they may apply to us individually, or the particular Wikimedia entities that we serve, we all have the opportunity to embrace our values while supporting a Wikimedia movement that mandates the highest of standards. As I believe we all agree, our community deserves nothing less.

Geoff Brigham, General Counsel, Wikimedia Foundation

Notes:

1. ↑ For Compass Partnership’s specific recommendations on respectful and professional communication, see Recommendation 4.4, paragraph 43; Recommendation 4.5, introductory paragraph; and Recommendation 4.5, paragraph 46 of the final report.
2. ↑ For Compass Partnership’s specific recommendations on separating one’s Wikimedia position from one’s personal interests, see Recommendation 4.4, paragraphs 27, 30, and 41 of the final report.
3. ↑ For Compass Partnership’s specific recommendations on transparency and the management of conflicts of interest, see Recommendation 4.4,, paragraphs 26, 27, and 29; and Recommendation 4.5, paragraph 48 of the final report.
4. ↑ For Compass Partnership’s specific recommendations on going beyond the minimum requirements of law, see the Introduction of the final report.

Settlement of litigation between Internet Brands and the Wikimedia Foundation

Today we are pleased to announce a settlement in the legal proceedings between the Wikimedia Foundation and Internet Brands relating to issues stemming from the creation of Wikivoyage, our community’s newest free knowledge project. We regard this settlement as a victory for the Wikimedia movement, and a vindication of our values and beliefs.

Our community expressed a strong desire to create a new, freely shareable, non-commercial travel wiki project. In response, Internet Brands (owners of a for-profit wiki-based travel project) sued two Wikimedians visibly involved in supporting the travel wiki project. Internet Brands branded the proposed new site an “Infringing Website” and claimed that the volunteers were acting “for the benefit of the Wikimedia Foundation” to “usurp” the community of users of Internet Brands’ site and taking actions that included “deliberately misleading statements, and Trademark infringement and violation of Internet Brands’ intellectual property rights.” Internet Brands identified the “Wikimedia Foundation, members of its Board, and other members of the Foundation” as potential “co-conspirators” who were “corrupt in this scheme”.

Unintimidated, the Foundation moved in to defend our volunteers and to protect our community’s right to an open and meaningful discussion about the project.

We contacted one of the most respected law firms working in this field, Cooley LLP, and asked that they represent and defend the two volunteers facing legal action from Internet Brands. Cooley was engaged, and with our financial support, the volunteers moved the case to federal court and also filed an anti-SLAPP motion against Internet Brands, alleging that their freedom to openly discuss the project was under threat. Internet Brands responded by abandoning its federal claim, essentially admitting it had no factual basis. The federal court then dismissed all of Internet Brands’ remaining claims.

Meanwhile, in September 2012 the Wikimedia Foundation filed its own lawsuit against Internet Brands seeking a declaration from the court that Internet Brands had no proper basis to block the travel wiki project.

The settlement was signed on February 14, 2013, and Internet Brands has now released the Foundation and Wikivoyage e.V. (the German not for profit who worked so hard to make the project a success) from any and all claims related in any manner to the creation and operation of the travel wiki project. In return, the Foundation will dismiss the suit.

Wikivoyage is now officially launched and growing, with about 9000 new entries added in the first month, and new language versions in Polish, Romanian, Finnish, Hungarian, Chinese and Japanese being opened.

The Wikimedia Foundation believes there is enough room for multiple travel sites to co-exist, and for community members to contribute to multiple sites in this area. Our Executive Director, Sue Gardner, outlined this perspective in a post to the original travel project discussion. We have stood by this belief from the beginning, and we believe that a successful, freely-shareable, non-commercial travel project will help support the overall quantity and quality of travel information on the web.

We thank and recognize our global community of volunteers, particularly the pioneers of the Wikivoyage project for their dedication and focus in making the project possible. I want to thank my colleagues at the Foundation in many different departments for their hard work on this case. We are also grateful to our friends at Cooley LLP for their continuous support, tireless dedication, and outstanding legal counsel through these challenges.

It’s now possible for the Wikivoyage community to continue their efforts to build a global free-knowledge travel site unhindered. We wish them the best of luck and look forward to working closely with the Wikivoyage community as the project grows and thrives.

Geoff Brigham, General Counsel

As many in the Wikimedia community are aware, the Wikimedia Foundation Board of Directors recently approved the creation of new models of affiliation known as thematic organizations and user groups. Thematic organizations are incorporated independent nonprofits that will support work focusing on a specific topic area within or across countries, regions and languages with certain permissions to use WMF marks. User groups are open membership groups which are granted limited use of Wikimedia marks for publicity related to events and projects. Both types of entities are unprecedented structures within the movement, and have the potential to move our mission forward in constructive and innovative ways.

One important feature of the new movement entity is the name under which it will operate, which is a key means for how it will present itself not just to the Wikimedia community but to the public. You can find my initial thoughts on naming the Thematic organizations talk page here and I’ve elaborated on those thoughts here. Other views can be found elsewhere on the talk page.

The new entities will help represent the movement and so the decisions we make in these initial stages may be of interest to many. In recognition of the fact that our community consists of many thoughtful and diverse voices, we invite and encourage everyone to participate in the discussion on naming models for new entities.

Geoff Brigham, General Counsel, Wikimedia Foundation

Wikimedia community members are encouraged to offer comments and suggestions for proposed new guidelines relating to conflicts of interest. These guidelines, which we hope to present to the Wikimedia Foundation Board for adoption, would establish the minimum standards to be upheld by everyone who requests Wikimedia movement resources, such as grants or permission to use WMF trademarks.

All community input is appreciated, and we anticipate incorporating many suggestions into the final guidelines. Our goal is that these guidelines will ensure that people proactively disclose potential conflicts related to their requests, so that decisions related to the allocation of movement resources can be made fairly and objectively.[1]

Generally, mismanaged personal interests resulting in potential conflicts of interest can hurt our movement, both in reputation and financially. The proposed guidelines seek to encourage full disclosure of personal and financial interests with respect to people’s requests for movement resources. The guidelines help ensure that those movement resources — like grants, staff time, scholarships, trademark licenses, travel reimbursements, fellowships, employment, and conference resources — are used in pursuit of our mission. The guidelines apply to requests for resources from movement entities, groups, associations, or persons, such as the Wikimedia Foundation, chapters, thematic organizations, movement partners, user groups, Wiki Loves Monuments, GLAM organizations and Wikipedians in Residence. The guidelines are not comprehensive or exhaustive. They are intended to support existing movement values and conflict of interest policies, which may require recusal or other ways of managing the conflict.[2]

Importantly, the guidelines are not intended to directly address more specific controversial topics, like paid editing. We understand that the community is engaged in that discussion in other venues. That said, these guidelines may serve as a foundation upon which to build more specific policies in the future. For now, however, we simply want to suggest some simple–hopefully uncontroversial–guidelines to help people know when they should be disclosing their personal or financial interests in their requests for and use of movement resources.

We would like to hear what you think. Feel free to leave your comments or propose edits on the meta discussion page. We are not seeking consensus or an RfC. This is to help us hear where we need to improve the document. To help ensure global understanding and easier translations, we are proposing that the guidelines be short and confined to one page. The WMF legal department greatly appreciates the opportunity to hear your thoughts and benefit from your wisdom there. We of course will read and respond to your comments and take them into consideration in drafting a final version for proposal to the Board.

We anticipate closing the comment period on January 15, 2013. This may allow for a proposal to the Board during its meeting on February 1-2, 2013. Otherwise, we may extend the comment period and ask the Board to approve the guidelines at another time. We encourage international participation, and, if more time is needed to allow for translations or comments, we want to take that into consideration.

Many thanks, as always, for your comments and active participation.

Geoff Brigham, General Counsel, Wikimedia Foundation

1. For further discussion of the context in which these new guidelines are being proposed, refer to the December 24th edition of The Signpost, which can be read here.
2. In the WMF Board’s resolution regarding organizational best practices, for example, “more developed organizations” are encouraged to “adopt core governance policies including a code of conduct for Board and staff that requires at least disclosure of all potential conflicts of interest.” Movement organizations, of course, are free to adopt more strict and tailored conflict of interest rules that go beyond the minimum standards of these proposed guidelines.

On December 7, 2012, 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. Among other things, the Wikimedia Foundation alleged that Internet Brands filed its brief 28 days after the deadline to do so, and 21 days after the Court had already issued a tentative ruling in the Wikimedia Foundation’s favor. Accordingly, 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.

On December 14, 2012, 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.

Geoff Brigham, General Counsel

The federal district court in Los Angeles has now issued its written order on volunteer Ryan Holliday’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. In the order, the court noted that Internet Brands abandoned its federal Lanham Act claim. That claim was based on the factual allegation that the Foundation was operating a new travel wiki called “Wiki Travel Guide,” which Ryan showed to be incorrect. After being required to respond to Ryan’s motion, Internet Brands was forced to admit that the basis of its claim was primarily predicated on an assumption. Noting that this Lanham Act claim was the only claim supporting federal jurisdiction, the court dismissed the remainder of Internet Brands’ case and found Ryan’s anti-SLAPP motion to be moot.

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). We congratulate both of them on this result.

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.

Geoff Brigham, General Counsel

Today Ryan Holliday, a Wikimedia volunteer, 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.

It is unclear whether Internet Brands will try to start over again and attempt to sue in state court, but for now, this case is gone. The court is expected to issue a written order shortly, which we will post here.

Geoff Brigham, General Counsel

Photo: Lane Hartwell, CC-BY-SA

After the recent SOPA/PIPA blackout, many media outlets characterized the debate as a battle between Silicon Valley and Hollywood for clout in Washington DC. Lost in this myopic narrative is the truth: the millions of regular Internet users who called and wrote their congressional representatives were giving a collective voice to their individual demands that Congress not enact legislation, written by industry, that would harm the free and open web. They spoke up to support those innovative websites and online communities that are possible only through a free exchange of ideas and information.

Congress, the media, and many others do not always understand or appreciate the meaning and power of the free-knowledge movement, nor the community that nurtures and supports it. For this reason, we offer a summary on free knowledge. Much will be familiar to Wikimedia project contributors and our peers in the free-knowledge community, but we hope to say something useful for our other readers — and legislators — who have not previously explored the issue or who have found themselves surprised by the backlash when they have ignored it.

As you can guess, we are quite protective of the Internet, which is a great facilitator of the free-knowledge movement, and we are suspicious when others seek to ram through legislation in their private interests without proper reflection on the values that are vital to our mission.

What you need to know about free knowledge

The mission of the free-knowledge community is to create and share informational resources and cultural works in full compliance with copyright laws. When offering works to the world, however, their creators guarantee five freedoms: the freedom to use, the freedom to study, the freedom to copy, the freedom to redistribute, and the freedom to improve those works.[1] Authors, artists, photographers, researchers, and others who have joined the worldwide free-knowledge community are committed to these freedoms, and in turn they produce media that hundreds of millions of people can use. The result: freely-licensed and valuable materials for education, business, technology, science and culture around the world.

The creators in the free-knowledge community are in fact copyright holders, just like the creators in the media industry, but unlike most industries, creators in the free-knowledge community volunteer to promote progress and innovation by releasing their content under a free license that provides their creations to the world for no cost.

The free-knowledge community is worldwide, diverse and growing. There are nearly 200 million free-knowledge works now available, and the amount of new, freely-licensed content is growing rapidly.[2]  Many organizations[3] now have large repositories of freely-licensed content, including C-Span,[4] YouTube,[5] Vimeo,[6] and Flickr.[7] Wikipedia has more than 21 million articles in 283 languages.[8] The Wikipedia community is built on the work of hundreds of thousands of contributors from around the world. Wikimedia Commons hosts over 12 million files, including more than 10 million images and photographs, more than 100 thousand sound files, and more than 20 thousand scans of freely-licensed and public domain documents.[9]
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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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