The EFF appears to be somewhat upset by the foundation

[Mike Godwin-2]

Nathan writes:

Interesting - I wonder if this is in any way related to the decisions
> underlying the recent board statement on trademarks? Has the Foundation
> pursued Wikipedia Review in the same manner?


I can answer that question -- it's wholly unrelated to the recent Board
statement on trademarks. Our concern was not primarily about trademarks.

Some background:  The Wikipedia Art site, which was registered last year,
was operated by performance artists who (apparently) hoped to use Wikipedia
as a staging ground for a performance art project that involved creating
articles on Wikipedia and creating links, both internal and external, that
"proved" or "verified" the notability of the Wikipedia Art project. (This is
documented on their website.)

When the would-be artists attempted to use Wikipedia in this fashion, our
community of editors shut them down very quickly.  At the same time,
however, some editors also expressed concern that the
wikipediaart.orgdomain name would be seen as somehow affiliated with
our projects,
especially since the artists were trying to edit content directly on
Wikipedia. So, after listening to our editors' feedback, we sent a letter to
Wikipedia Art that was aimed, not to threaten legal action, but to outline
what our legal concerns were, and to try to begin a negotiation to resolve
the matter amicably -- ideally by switching the domain name over to us, but
not by requiring any content changes on their site at all.

We of course entirely support the site owners' prerogative to comment on and
criticize Wikipedia.  Our concern was that the Wikipedia Art project
presented itself as a way for individuals to contribute to Wikipedia
directly -- possibly by providing inaccurate reference information -- and,
in doing so, might seem to express an affiliation with us.  We note also
that Wikipedia itself is hosts quite a bit of art, and reference materials
about art, and there was some concern about how this would play out in
search-engine results. We are pleased that the project, after we contacted
them about this matter, has chosen to publish a disclaimer disassociating
itself more clear from our projects, and that they have ceased in their
attempts to use Wikipedia as a staging ground for their performance art
projects.

Unsurprisingly, the artists, who enjoyed making a fuss with their initial
perfomance-art project, are hoping to make a fuss about our having contacted
them at all.  We anticipated precisely this reaction, of course, which is
why our initial letter to Wikipedia Art, now posted on their website, talks
about resolving the matter amicably and asks the artists to respect and
understand our concerns.  In other words, it's about the gentlest "demand
letter" one can possibly write. We're pleased it led to positive results
(the disclaimer).  We always figured they might post our communications with
them.

With regard to Wikipedia Review: when I spoke with my friends at EFF about
this matter some weeks ago, they asked the same question.  I pointed out
that we at Wikimedia Foundation actually rather love Wikipedia Review -- I
for one read it for its entertainment value -- and that in any case no one
reading Wikipedia Review would ever be under the impression that they're
affiliated with Wikipedia or the Wikimedia Foundation.

In a nutshell:  Wikipedia editors brought the issue of the domain name to
our attention, we corresponded with the Wikipedia Arts folks, raising domain
name and trademark issues, and the result was a prominent disclaimer.  No
litigation was threatened or commenced.

Last time I spoke with my EFF counterparts about this, the conversation was
entirely friendly and collegial. We disagreed on some matters, but I pointed
out that if someone decided to use the EFF website as a staging ground for a
performance art piece, I'd entirely support their efforts to prevent
anyone's confusing the artists' work with their own.

Please feel free to ask me any further questions about this.


--Mike Godwin
General Counsel
Wikimedia Foundation
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[Thomas Dalton]

2009/4/23 Mike Godwin <mnemonic@...>:
> Nathan writes:
>
> Interesting - I wonder if this is in any way related to the decisions
>> underlying the recent board statement on trademarks? Has the Foundation
>> pursued Wikipedia Review in the same manner?
>
>
> I can answer that question -- it's wholly unrelated to the recent Board
> statement on trademarks. Our concern was not primarily about trademarks.

The initial letter from Isenberg (isn't that where Saruman lived?) is
almost entirely about trademarks, so you can understand why people
would think that was your concern.

>ideally by switching the domain name over to us, but
> not by requiring any content changes on their site at all.
[snip]
> We are pleased that the project, after we contacted
> them about this matter, has chosen to publish a disclaimer disassociating
> itself more clear from our projects, and that they have ceased in their
> attempts to use Wikipedia as a staging ground for their performance art
> projects.

That is where my response would have differed from yours. I would have
started by asking for a disclaimer, rather than asking them to hand
over the domain. The disclaimer is a good solution, you seem to agree
with that, and requesting the domain name comes across (however
carefully you word your request) as an attempt to shut them down so it
would have been good to completely avoid that potential for
misinterpretation.

> With regard to Wikipedia Review: when I spoke with my friends at EFF about
> this matter some weeks ago, they asked the same question.  I pointed out
> that we at Wikimedia Foundation actually rather love Wikipedia Review -- I
> for one read it for its entertainment value -- and that in any case no one
> reading Wikipedia Review would ever be under the impression that they're
> affiliated with Wikipedia or the Wikimedia Foundation.

Personally, I find WR even more frustrating that foundation-l, so I
avoid it, but I fully agree with everyone that it is legally and
morally acceptable to use the Wikipedia trademark in such a way.

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[Mike Godwin-2]

On Thu, Apr 23, 2009 at 11:46 AM, Thomas Dalton <thomas.dalton@...>wrote:

>
> The initial letter from Isenberg (isn't that where Saruman lived?) is
> almost entirely about trademarks, so you can understand why people
> would think that was your concern.


Sure, that makes sense. But the Board's resolution had to do with
implementing a trademark policy balancing the requirements of trademark law
with the needs of the community and the chapters. So in that respect, at
least, the Board's resolution did not touch on any matters of the sort that
arose out of our interactions with Wikipedia Art.

That is where my response would have differed from yours. I would have
> started by asking for a disclaimer, rather than asking them to hand
> over the domain. The disclaimer is a good solution, you seem to agree
> with that, and requesting the domain name comes across (however
> carefully you word your request) as an attempt to shut them down so it
> would have been good to completely avoid that potential for
> misinterpretation.


If they had transferred the domain name over to us, we'd have paid all their
expenses and forwarded requests for some period of time to any new domain
name they chose to register. There are other alternatives we might have
considered as well. But, take my word for it, we had no interest at all in
shutting down their site (which, so far as I can tell, is a very low-traffic
site in any case).

At any rate, disagreements resolved through negotiations typically lead to
compromises, and so it makes sense sometimes to make your strongest
arguments first, so that you can fall back into a reasonable compromise.

Personally, I find WR even more frustrating that foundation-l, so I
> avoid it, but I fully agree with everyone that it is legally and
> morally acceptable to use the Wikipedia trademark in such a way.
>

I'm a bit perverse, but I enjoy the performance art of WR rather more than
that of Wikipedia Art.


--Mike
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[Thomas Dalton]

2009/4/23 Mike Godwin <mnemonic@...>:
> If they had transferred the domain name over to us, we'd have paid all their
> expenses and forwarded requests for some period of time to any new domain
> name they chose to register. There are other alternatives we might have
> considered as well. But, take my word for it, we had no interest at all in
> shutting down their site (which, so far as I can tell, is a very low-traffic
> site in any case).

I don't doubt that you weren't trying to shut them down, but it was
highly predictable that people would come to that conclusion.

> At any rate, disagreements resolved through negotiations typically lead to
> compromises, and so it makes sense sometimes to make your strongest
> arguments first, so that you can fall back into a reasonable compromise.

Very true. You have to balance starting high enough that you have room
to come down with not appearing unreasonable. It's a difficult
balancing act, and I'm not sure you got it quite right this time.
Perhaps you could have requested they make wikipediaart.org into a
portal page, linking to their site and to Wikipedia, but keep it under
their control - basically a really big disclaimer. Then you could have
settled for a nice small disclaimer like the one they've gone with.

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[David Gerard-2]

2009/4/23 Thomas Dalton <thomas.dalton@...>:

> Very true. You have to balance starting high enough that you have room
> to come down with not appearing unreasonable. It's a difficult
> balancing act, and I'm not sure you got it quite right this time.
> Perhaps you could have requested they make wikipediaart.org into a
> portal page, linking to their site and to Wikipedia, but keep it under
> their control - basically a really big disclaimer. Then you could have
> settled for a nice small disclaimer like the one they've gone with.


They're performance artists. This is more performance. They fooled the
EFF into playing along.


- d.

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[Mike Godwin-2]

David Gerard writes:

They're performance artists. This is more performance. They fooled the
> EFF into playing along.


This is precisely my own take on the situation.


--Mike
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[Thomas Dalton]

2009/4/23 Mike Godwin <mnemonic@...>:
> David Gerard writes:
>
> They're performance artists. This is more performance. They fooled the
>> EFF into playing along.
>
>
> This is precisely my own take on the situation.

I don't disagree. I think we've unnecessarily given them more material
to work with, though, which is unfortunate.

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[Mike Godwin-2]

On Thu, Apr 23, 2009 at 2:59 PM, Thomas Dalton <thomas.dalton@...>wrote:


> I don't disagree. I think we've unnecessarily given them more material
> to work with, though, which is unfortunate.
>

There's always a risk associated with engaging with any kind of performance
artist.  These guys aren't quite at the Borat level, though.

I'm not terribly troubled with the outcome in this instance -- we
anticipated this as a possibility at the outset, did what we could to
minimize the risk.  I'm untroubled by the publication of our initial letter
to Wikipedia Art -- we went over it quite a bit before sending it to them,
on the assumption that at some point it would be made public.


--Mike
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[Michael Snow-3]

Mike Godwin wrote:
> David Gerard writes:
>  
>> They're performance artists. This is more performance. They fooled the EFF into playing along.
>>    
> This is precisely my own take on the situation.
>  
It's basically proven by the notable lack of other art appearing on
their site in the meantime. I was mildly amused that one of the
"sources" on their wiki page drew a comparison between the project and
Andrew Keen, which I suppose fits in with the performance art concept
pretty well.

--Michael Snow

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[David Gerard-2]

2009/4/23 Michael Snow <wikipedia@...>:

> It's basically proven by the notable lack of other art appearing on
> their site in the meantime. I was mildly amused that one of the
> "sources" on their wiki page drew a comparison between the project and
> Andrew Keen, which I suppose fits in with the performance art concept
> pretty well.


Where "performance art" is "trolling for money"?


- d.

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[Michael Snow-3]

David Gerard wrote:

> 2009/4/23 Michael Snow <wikipedia@...>:
>  
>> It's basically proven by the notable lack of other art appearing on
>> their site in the meantime. I was mildly amused that one of the
>> "sources" on their wiki page drew a comparison between the project and
>> Andrew Keen, which I suppose fits in with the performance art concept
>> pretty well.
>>    
> Where "performance art" is "trolling for money"?
>  

Hey, artists need to make a living, too.

--Michael Snow

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[David Gerard-2]

2009/4/24 Michael Snow <wikipedia@...>:
> David Gerard wrote:
>> 2009/4/23 Michael Snow <wikipedia@...>:

>>> It's basically proven by the notable lack of other art appearing on
>>> their site in the meantime. I was mildly amused that one of the
>>> "sources" on their wiki page drew a comparison between the project and
>>> Andrew Keen, which I suppose fits in with the performance art concept
>>> pretty well.

>> Where "performance art" is "trolling for money"?

> Hey, artists need to make a living, too.


I'm increasingly a proponent of day jobs for them ...


- d.

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[Geoffrey Plourde]

Did you consider starting off with asking for a simple disclaimer? If they don't have it uploaded and one was sent, disregard previous statement.




________________________________
From: Mike Godwin <mnemonic@...>
To: Thomas Dalton <thomas.dalton@...>
Cc: Wikimedia Foundation Mailing List <foundation-l@...>
Sent: Thursday, April 23, 2009 11:53:51 AM
Subject: Re: [Foundation-l] The EFF appears to be somewhat upset by the foundation

On Thu, Apr 23, 2009 at 11:46 AM, Thomas Dalton <thomas.dalton@...>wrote:

>
> The initial letter from Isenberg (isn't that where Saruman lived?) is
> almost entirely about trademarks, so you can understand why people
> would think that was your concern.


Sure, that makes sense. But the Board's resolution had to do with
implementing a trademark policy balancing the requirements of trademark law
with the needs of the community and the chapters. So in that respect, at
least, the Board's resolution did not touch on any matters of the sort that
arose out of our interactions with Wikipedia Art.

That is where my response would have differed from yours. I would have
> started by asking for a disclaimer, rather than asking them to hand
> over the domain. The disclaimer is a good solution, you seem to agree
> with that, and requesting the domain name comes across (however
> carefully you word your request) as an attempt to shut them down so it
> would have been good to completely avoid that potential for
> misinterpretation.


If they had transferred the domain name over to us, we'd have paid all their
expenses and forwarded requests for some period of time to any new domain
name they chose to register. There are other alternatives we might have
considered as well. But, take my word for it, we had no interest at all in
shutting down their site (which, so far as I can tell, is a very low-traffic
site in any case).

At any rate, disagreements resolved through negotiations typically lead to
compromises, and so it makes sense sometimes to make your strongest
arguments first, so that you can fall back into a reasonable compromise.

Personally, I find WR even more frustrating that foundation-l, so I
> avoid it, but I fully agree with everyone that it is legally and
> morally acceptable to use the Wikipedia trademark in such a way.
>

I'm a bit perverse, but I enjoy the performance art of WR rather more than
that of Wikipedia Art.


--Mike
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