German courts handed down two decisions this summer that represent significant legal victories for the Wikimedia community and the entire free-knowledge movement in Germany. The District Court of Tübingen in Prof. Dr. Matthias Asche v. Wikimedia Foundation, Inc. and the District Court of Schweinfurt in Peter Deeg v. Wikimedia Foundation, Inc. each issued rulings in two different cases in favor of the Wikimedia Foundation. The former case concerned the German right of personality of a living person; the latter concerned the post-mortem right of personality. Both decisions contain several insightful legal observations on the right of personality online, which we feel are worth highlighting and sharing with the Wikimedia community.

Asche v. Wikimedia Foundation

In June 2012, Professor Matthias Asche brought suit against the Wikimedia Foundation, objecting to content in a German-language Wikipedia article and asserting a violation of his personality rights.[1] In particular, he wished to eliminate any mention of his membership in several Catholic student associations.

Asche offered to settle the suit if the Foundation would remove the content that Asche found objectionable, thereby circumventing community processes. We could not consent to a settlement that set the precedent of censoring lawful and accurate content, which community members had already determined to meet the high standards of sensitivity, veracity and neutrality laid out in Wikipedia’s Biographies of Living Persons (“BLP”) policy. It was also undisputed that the information at issue was both accurate and freely available on several other websites under Asche’s authorization.

With this lawsuit, the right of individuals and entities to publish and disseminate truthful biographical information on the Internet came under attack. The Foundation’s mission is to facilitate the robust exchange of ideas and information and, more ambitiously, to provide global unfettered access to free knowledge. Thus, rather than compromise on the movement’s core principles, we chose to defend our community’s right to contribute factual information to biographical articles.

The German right of personality is broader than the analogous U.S. right of publicity. U.S. law prohibits unauthorized commercial use of individual’s name or likeness,[2] but German law goes further in securing an autonomous area of private life for the individual regardless of commerciality. To that end, Germany often protects the right to informational self-determination, i.e. the right of the individual to decide when and to what extent personal facts are publicly disclosed. Asche argued that, under German law, it was unlawful to make content available concerning an individual without that individual’s prior explicit consent in spite of the availability of that same information elsewhere on the Internet.

However, the Foundation maintained–and the court ultimately agreed–the right of personality in Germany is not absolute; rather, the subject’s interest in informational self-determination must be weighed against the interests of Wikimedia users and the general public.[3]

As the German Federal Constitutional Court has previously ruled, absent a truly compelling justification, the individual must tolerate adverse effects resulting from third party reactions to publication of true facts.[4] “Compelling” justifications may include discrimination against the individual in question, social exclusion and isolation, and likeliness of a widespread impact. Such justifications were absent in this case.

Furthermore, the court recognized that the rigid enforcement of the right of personality would inevitably impede the shared mission of the Wikimedia movement to create and grow, among other projects, a “free encyclopedia.” The court determined that the public has a significant interest in having a comprehensive and freely accessible source of knowledge[5] and Wikimedia similarly has an interest in making available truthful facts under freedom of the press. The court found that this public interest and the need to preserve the freedom of the press constituted substantially important interests that outweighed Asche’s right of personality.

Thus, in a victory for our community and the wider Wikimedia movement, the court ruled that the balance of interests favors the Foundation and that the content at issue could remain in the article undisturbed.

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Wikipedia is an indispensable tool used to explore the threads of our collective cultural and intellectual fabric. It has also become a part of that fabric itself.

Producers and distributors of information and popular media are increasingly recognizing that Wikipedia is a normal (yet extraordinary) part of people’s daily lives. This realization has led to the integration of Wikipedia into movies and television shows; into textbooks teaching kids how to actively participate in their own education; and into the framework of technologies that allow people to access the world’s collective knowledge more freely than ever before.

It is important to spread the word about Wikipedia and the free knowledge movement, but it is equally important to accurately depict Wikipedia, the movement and the community of contributors who write and maintain it. To protect the Wikimedia trademarks is to protect the reputation, goodwill, and hard work of our global community. Ensuring against misuse is a responsibility that the Wikimedia Foundation takes very seriously through the careful management, enforcement, and licensing of the Wikimedia trademarks.

Promotion for Wikipedia Zero partnership between Orange and WMF

The Wikimedia Foundation receives approximately 200 trademark license requests per year, from members of the Wikimedia community, authors, movie production companies and telecommunications companies, to name a few (in the last 12 months we had 220 requests, of which we approved 52). A cross-departmental trademark team at the WMF reviews requests and determines which ones illustrate or further the Wikimedia movement. The team considers a number of factors in deciding whether or not to grant a license, such as whether the use is for profit or not; whether the use accurately depicts how Wikipedia would be used and reflects actual Wikipedia customs; whether the use depicts the nature of the projects and how to use them accurately; and whether the use is generally in the spirit of our movement.

Trademark requests cover a wide range of interesting uses of the Wikimedia marks. They demonstrate how Wikimedia projects touch the daily lives of people around the world and exemplify the tremendous impact of the work done by our community. Here are just some of the uses that were approved in the past year: an episode of the Australian TV show “Who Do You Think You Are?” featured actor Vince Colosimo, who was depicted searching for information about his grandfather on Wikipedia; the Taghreedat Initiative, which used the marks in an online survey in conjunction with seminars in the Middle East to teach people how to contribute to the Arabic Wikipedia; the character Conrad Knox, who used Wikipedia to research Hiroshima in the HBO series “Strike Back;” and the use of our marks in Wikipedia Zero mobile partnerships the Foundation has launched to provide access to Wikipedia without data fees in developing countries.

Seeing Wikimedia projects in the textbooks you read, the movies you watch, the mobile apps that you use, and in your local community not only acknowledges and advances the mission, but it gives people a peek into the Wikimedia world. It can teach them how to find the etymology of a word on Wiktionary; it can show them how they can contribute to Wikipedia; it can explain the values and importance of the movement; or it can even help them discover a whole community of people who are even more into 19th century heraldry than they are.

Why does the Foundation need to grant licenses if Wikipedia content is free?

An example of alleged trademark misuse by a third party website

Whether we like it or not, trademarks are ingrained into our lives. How long does it take you to identify the organizations that have the following symbols: (i) golden arches; (ii) a “swoosh” check mark; (iii) a puzzle globe? These symbols invoke and represent the organizations behind them and, for better or worse, the quality of the products and services those organizations provide. Wikimedia trademarks represent even more than that: they embody the hard work and dedication of a global community of contributors and editors–every corrected comma, every citation, every new tidbit of shared knowledge.

Requiring third parties to enter into licensing agreements to use Wikimedia trademarks allows the Foundation to protect that work. Just as the Creative Commons Attribution-ShareAlike 3.0 Unported License places restrictions on the reuse of Wikipedia content to ensure that the content is used in accordance with the free-license terms, our trademark licenses ensure that third parties use the Wikimedia trademarks only in ways that are consistent with the Wikimedia movement.

Strong licenses also increase the strength of trademarks, so in the event that the Foundation needs to enforce the trademarks against an infringer (like a mirror site with ads or a phishing site masquerading as a Wikipedia survey), we will be more likely to prevail.

Wikimedia trademarks are symbols of the work done by the Wikimedia movement. The Wikimedia Foundation is proud to promote their use in support of our mission and will continue to protect them against misuse.

For more information on how to use our trademarks, please read our Trademark Policy. If you have questions about the Trademark Policy or would like to request a license to use any of the Wikimedia trademarks, please email trademarkswikimedia.org.

Michelle Paulson, Legal Counsel

After months of deliberation and a complicated transfer, the Wikimedia Foundation domain portfolio has been successfully transferred from GoDaddy to MarkMonitor. The portfolio transfer was formally completed on Friday, March 9th, 2012. The transfers were done seamlessly and our sites did not experience any interruption of service or other issues during the procedure.

As the provider of the 5th most visited web properties in the world, the Foundation cares deeply about who handles our domain names. We had been deliberating a move from GoDaddy for some time — our legal department felt the company was not the best fit for our domain needs — and we began actively seeking other domain management providers in December 2011. GoDaddy’s initial support of the Stop Online Piracy Act (SOPA), the controversial anti-piracy legislation in the U.S. House of Representatives, reaffirmed our decision to end the relationship.

After exploring numerous alternatives, the Foundation’s legal team decided that MarkMonitor could best provide the comprehensive services that we needed. MarkMonitor is a U.S.-based registrar with an office in San Francisco and has substantial experience managing other high-traffic domains. The company will help the Foundation consolidate and centralize management of all of its domains, will provide services needed to manage a global domain portfolio and will better protect our domains with additional security features.

The Foundation was already utilizing MarkMonitor’s brand protection services and we found their dedicated customer support team’s work to be exceptional. The use of their domain management services ensures greater efficiency in the handling of the Foundation’s trademark and domain name portfolios.

We have been very impressed with MarkMonitor to this point and we are confident we have placed the Wikimedia domain portfolio in competent hands.

Michelle Paulson
Legal Counsel