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Revision as of 02:24, 8 June 2010
, 02:24, 8 June 2010Copied from Akahele.org
Several weeks ago, I wrote an article here about <a href="http://akahele.org/2009/03/in-the-eye-of-the-beholder/">Wikipedia and Art</a>, which discussed aspects of the <a href="http://www.wikipediaart.org/">Wikipedia Art project</a>.
<table style="float: left; border=" border="0" width="155">
<tbody>
<tr>
<td><img src="http://akahele.org/wp-content/uploads/2009/03/180px-wikipedia_art-copy-150x150.jpg" alt="Wikipedia Art logo" /></td>
</tr>
<tr>
<td class="photocaption" style="text-align: left;">Official logo of the Wikipedia Art project</td>
</tr>
</tbody></table>
This performance art project started by artists <a href="http://en.wikipedia.org/wiki/Scott_Kildall">Scott Kildall</a> and <a href="http://en.wikipedia.org/wiki/Nathaniel_Stern">Nathaniel Stern</a> created quite <a href="http://www.rhizome.org/discuss/view/41713">a bit of discussion</a> in the Art world, both negative and positive. The reaction in the Wikipedia world was, of course, <a href="http://en.wikipedia.org/wiki/Wikipedia:Articles_for_deletion/Wikipedia_Art">completely predictable</a>. The project has regained a place in Wikipedia article space (at least until the <em>deletion hit squad</em> reads this article), through what is being now called the "<a href="http://en.wikipedia.org/wiki/Wikipedia_Art_controversy">Wikipedia Art controversy</a>".
This story escalated, by some strange coincidence, on the very day that I posted my article about Wikipedia Art on this blog: on March 23, 2009, Scott Kildall received an <a href="http://wikipediaart.org/legal/032309-Isenberg.pdf">initial letter</a> from Douglas Isenberg, hired legal counsel for the Wikimedia Foundation. The letter complained that the Wikipedia Art website may be violating trademark law by its use of "Wikipedia" in the domain name, which is a registered trademark in the US (the Foundation later emphasized it did not in fact assert that <a href="http://wikipediaart.org/legal/040909-WikimediaResponse.html">Wikipedia Art was violating trademark law</a>). This incident was covered by <a href="http://www.eff.org/deeplinks/2009/04/wikipedia-threatens-">an article</a> on the Electronic Freedom Foundation website and by further articles on the <a href="http://arstechnica.com/tech-policy/news/2009/04/wikipedia-suit-could-put-it-on-the-wrong-side-of-fair-use.ars">Ars Technica</a> and <a href="http://www.digitaljournal.com/article/271551">Digital Journal</a> websites. This independent coverage, ironically, seems to indicate that Wikipedia Art has suddenly fulfilled the notability guidelines for inclusion in Wikipedia.
The Wikimedia Foundation (which controls Wikipedia and other related projects) has long been a leading supporter of the "free culture" movement, insisting that all contributions made to its projects be released under "free licenses", either the GNU free software license (a license which has been found to be highly unsuitable for encyclopedia entries) or (more recently) the Creative Commons. This is a phenomenon that I have examined already in depth on the Wikipedia Review blog: in two articles which may be read <a href="http://wikipediareview.com/blog/20071212/wpgive-us-money-and-well-give-you-free-culture-another-fund-raising-ploy/">here</a> and <a href="http://wikipediareview.com/blog/20080114/violating-copyright-for-the-good-of-the-project/" target="_blank">here</a>.
The idea of the "free culture" movement is both confusing for those not involved in the creative process and completely unnecessary for creators, since creators already have all of the rights to their works by definition. My personal position has always been that these "free culture" projects are always unnecessarily injecting into the agreements uninvolved third-parties who have no business being involved in the first place. A creator has the right to grant free licenses to whomever he or she pleases, without any of these "free culture" licenses. The fact that these unnecessary steps are being added to this process is already, in my mind, something which doesn't look like it's entirely upfront. When you consider that Wikipedia is now involved in <a href="http://blog.wikimedia.org/2009/04/14/vote-on-wikimedia-licensing-update-underway/">unilaterally changing the terms of their licenses already contracted to copyright holders without consulting the copyright holders themselves</a>, this becomes something which is only theoretically legal and which will survive only if unchallenged.
Oddly, especially in light of this insistence that others release their contributions under a free license, both the Wikipedia name and logo are registered trademarks. This is not to say that either is the work of the Wikimedia Foundation, but were works by individual contributors (Dr. Larry Sanger, co-founder of Wikipedia in the case of the name -- which Dr. Sanger confirmed to me via e-mail; and <a href="http://en.wikipedia.org/wiki/Wikipedia:Wikipedia_logos#The_variants">a collective of two users</a> in the case of the logo) which were "donated" to the Wikimedia Foundation, their copyright being "assigned" to the Foundation, which later registered both as trademarks. Of course, the registration of trademarks is based on "use" not "ownership".
An extremely animated discussion of this incident began on the <a href="http://lists.wikimedia.org/pipermail/foundation-l/2009-April/051501.html">Wikimedia Foundation mailing list</a> with <a href="http://lists.wikimedia.org/pipermail/foundation-l/2009-April/051505.html">a comment made by WMF legal council Mike Godwin</a>, who tried to downplay the letter that was sent to Kildall. Unfortunately, at the time of this writing, it would seem that this de-escalation did not include granting permission for the Wikipedia Art site to use the "Wikipedia" name.
This is confounded by the idea that the Wikimedia Foundation requires users to adhere to a policy which is referred to as <a href="http://en.wikipedia.org/wiki/Wikipedia:No_legal_threats">No Legal Threats</a>. This policy states that anyone who makes a legal threat against other Wikipedia editors, or against the Foundation itself, will be blocked from using Foundation-hosted services until the legal threat is <em>resolved</em>. However, this courtesy routinely is not extended to those with whom the Wikimedia Foundation has legal differences. There is no evidence that any "dispute resolution" procedure was followed, and as a legally trained Wikipedian <a href="http://lists.wikimedia.org/pipermail/wikien-l/2009-April/100393.html">pointed out</a> on the English Wikipedia mailing list, a letter from an attorney is usually perceived as a "legal threat", regardless of how <em>nicely</em> the way the threat is phrased.
To further complicate matters, Wikipedia and other Wikimedia projects depend on the allowances of "fair use" as it is defined under US law in order to illustrate certain articles, such as pasting in short clips of audio recordings or images of album covers. This "fair use" of copyright materials was at the center of the recent <a href="http://www.theregister.co.uk/2008/12/07/brit_isps_censor_wikipedia/"><em>Virgin Killer</em> album cover</a> incident, and it is an integral part of the way that the Wikipedia community has decided that this type of use should be handled. As a matter of fact, if articles such as <a href="http://mako.cc/copyrighteous/20090411-00.comment">this</a> and <a href="http://whygive.wikimedia.org/2007/12/28/wikimedia-commons-the-power-of-free-content-media/">this</a> are any indication, Wikipedia contributors have even more radical ideas about copyright and trademarks: <em>they should be banned as the evil things that they are!</em>
Of course, one of the main problems of "free culture" is that it doesn't generate money, except if you license something to somebody else (something that you don't own but which has been labeled "free"). In order to license the content, you have to have rights to grant. The Wikimedia Foundation owns almost none of the content it serves, because the copyright owners do: the Foundation is only restating the grant of a license for its use, and this in spite of insisting <em>that they are not "publishing"</em> the material. It would seem that the only pieces of content that the Wikimedia Foundation owns openly would be the name "Wikipedia" and the project logos. They are however currently involved in <a href="http://www.techcrunch.com/2009/04/22/the-french-come-calling-for-wikipedia-orange-strikes-mobile-deal/">a licensing and "co-branding" project</a> with France Telecom's Orange mobile phone network. Yet even in the <a href="http://blog.wikimedia.org/2009/04/22/bonjour-orange-wikimedia-partners-with-orange-to-spread-knowledge/">Wikimedia Foundation's press release</a> about this new business relationship, the language used by Kul Wadhwa of the Foundation's Business Development department (which is sort of an odd concept for a "free culture", "open source" project to have in the first place) is rather mixed. On one hand we have Wadhwa saying :
<blockquote>I have been consistently impressed by their dedication to the Foundation’s mission of spreading free knowledge. They appreciate the importance of our community in everything we do, they’re committed to supporting neutral point-of-view, and they have an increasing interest in open source technology. The Foundation is always interested in business partnerships which understand our culture and help expand our mission, and Orange is an ideal partner for us.</blockquote>
However in the next statement, Wadhwa leaves the "free culture" world behind and enters the board room:
<blockquote>This is an important new revenue stream to build on our successful fundraising campaigns...</blockquote>
The <a href="http://wikimediafoundation.org/wiki/Press_releases/Orange_and_Wikimedia_announce_partnership_April_2009QA">Q&A page</a> also makes for interesting reading. Answer three is especially interesting here :
<blockquote>Q3: <strong>Is this partnership a way for Wikimedia to monetize content?</strong>
A3: The Wikimedia Foundation projects are free of advertising, and we don't expect that will ever change. However, under the free license used by the Wikimedia projects, it has always been permissible for other entities to republish Wikimedia project content, and add advertisements to it. Many organizations have done this. Our mission is to disseminate educational materials as widely as possible; we are happy to partner with both non-commercial and commercial entities to achieve that goal.
Within this partnership <strong>we have agreed that Orange will place targeted marketing alongside the branded Wikimedia content it will republish on the Orange mobile and web platforms. </strong></blockquote>
Although these two situations, <em>Wikipedia Art</em> and the Orange agreement, do not seem at the surface to be related, they come to pass at approximately the same time. This perceived change in attitude from the traditional "free culture" outlook to a more "bottom line, business-oriented" perspective seems to be interconnected in a very profound way.
On one hand, we have a not-for-profit charity entering into a for-profit relationship with another company to license content which they neither own nor claim to "publish", but only "host". The content is all made by third-parties who retain the copyright, upon which the not-for-profit is currently attempting to impose a change of license without formally consulting all of the copyright holders, and which contains a great deal of copyright material which can only be justified under a US "fair use law". In addition, much of this is concurrently happening in the European Union, where the copyright laws are much stronger and where "fair use" doesn't apply.
And then you have two guys who decided to make a performance art project on the not-for-profit site and are using the not-for-profit's name on their non-commercial website to discuss their own artistic work connected to the site.
Which is the bigger problem for the Wikipedia community? Which is a bigger threat to Wikipedia's future? Which is a bigger threat to society?
As a work of performance art, however, Wikipedia Art must be seen as a successful action, at least according to terms that I described in my initial article here. Wikipedia Art has acted as a mirror reflecting reality back to Wikipedia and the people who consider themselves part of that "community". As one participant <a title="Deleted post from WikiEN-l list" href="http://www.webcitation.org/5gLz9yKmr" target="_blank">posted</a> on the English Wikipedia mailing list:
<blockquote>Yeah, Wikipedia Art are basically trolls, but I find this disturbing. If Wikipedia can make legal threats to trolls and deny it, and accuse trolls of trademark violation in a baseless way, they can do it to anyone, and the next guy they do it to may not necessarily be a troll.</blockquote>
So, Akahele salutes Kildall and Stein for creating this situation in which the <em>reality</em> of the Wikimedia Foundation has been so clearly illustrated.
<strong>Image credits:</strong>
<ul>
<li>Wikipedia Art logo, <a title="Wikipedia Art logo, GFDL license" href="http://www.wikipediaart.org/" target="_blank"><span class="comment">GFDL License</span></a>.</li>
</ul>
<table style="float: left; border=" border="0" width="155">
<tbody>
<tr>
<td><img src="http://akahele.org/wp-content/uploads/2009/03/180px-wikipedia_art-copy-150x150.jpg" alt="Wikipedia Art logo" /></td>
</tr>
<tr>
<td class="photocaption" style="text-align: left;">Official logo of the Wikipedia Art project</td>
</tr>
</tbody></table>
This performance art project started by artists <a href="http://en.wikipedia.org/wiki/Scott_Kildall">Scott Kildall</a> and <a href="http://en.wikipedia.org/wiki/Nathaniel_Stern">Nathaniel Stern</a> created quite <a href="http://www.rhizome.org/discuss/view/41713">a bit of discussion</a> in the Art world, both negative and positive. The reaction in the Wikipedia world was, of course, <a href="http://en.wikipedia.org/wiki/Wikipedia:Articles_for_deletion/Wikipedia_Art">completely predictable</a>. The project has regained a place in Wikipedia article space (at least until the <em>deletion hit squad</em> reads this article), through what is being now called the "<a href="http://en.wikipedia.org/wiki/Wikipedia_Art_controversy">Wikipedia Art controversy</a>".
This story escalated, by some strange coincidence, on the very day that I posted my article about Wikipedia Art on this blog: on March 23, 2009, Scott Kildall received an <a href="http://wikipediaart.org/legal/032309-Isenberg.pdf">initial letter</a> from Douglas Isenberg, hired legal counsel for the Wikimedia Foundation. The letter complained that the Wikipedia Art website may be violating trademark law by its use of "Wikipedia" in the domain name, which is a registered trademark in the US (the Foundation later emphasized it did not in fact assert that <a href="http://wikipediaart.org/legal/040909-WikimediaResponse.html">Wikipedia Art was violating trademark law</a>). This incident was covered by <a href="http://www.eff.org/deeplinks/2009/04/wikipedia-threatens-">an article</a> on the Electronic Freedom Foundation website and by further articles on the <a href="http://arstechnica.com/tech-policy/news/2009/04/wikipedia-suit-could-put-it-on-the-wrong-side-of-fair-use.ars">Ars Technica</a> and <a href="http://www.digitaljournal.com/article/271551">Digital Journal</a> websites. This independent coverage, ironically, seems to indicate that Wikipedia Art has suddenly fulfilled the notability guidelines for inclusion in Wikipedia.
The Wikimedia Foundation (which controls Wikipedia and other related projects) has long been a leading supporter of the "free culture" movement, insisting that all contributions made to its projects be released under "free licenses", either the GNU free software license (a license which has been found to be highly unsuitable for encyclopedia entries) or (more recently) the Creative Commons. This is a phenomenon that I have examined already in depth on the Wikipedia Review blog: in two articles which may be read <a href="http://wikipediareview.com/blog/20071212/wpgive-us-money-and-well-give-you-free-culture-another-fund-raising-ploy/">here</a> and <a href="http://wikipediareview.com/blog/20080114/violating-copyright-for-the-good-of-the-project/" target="_blank">here</a>.
The idea of the "free culture" movement is both confusing for those not involved in the creative process and completely unnecessary for creators, since creators already have all of the rights to their works by definition. My personal position has always been that these "free culture" projects are always unnecessarily injecting into the agreements uninvolved third-parties who have no business being involved in the first place. A creator has the right to grant free licenses to whomever he or she pleases, without any of these "free culture" licenses. The fact that these unnecessary steps are being added to this process is already, in my mind, something which doesn't look like it's entirely upfront. When you consider that Wikipedia is now involved in <a href="http://blog.wikimedia.org/2009/04/14/vote-on-wikimedia-licensing-update-underway/">unilaterally changing the terms of their licenses already contracted to copyright holders without consulting the copyright holders themselves</a>, this becomes something which is only theoretically legal and which will survive only if unchallenged.
Oddly, especially in light of this insistence that others release their contributions under a free license, both the Wikipedia name and logo are registered trademarks. This is not to say that either is the work of the Wikimedia Foundation, but were works by individual contributors (Dr. Larry Sanger, co-founder of Wikipedia in the case of the name -- which Dr. Sanger confirmed to me via e-mail; and <a href="http://en.wikipedia.org/wiki/Wikipedia:Wikipedia_logos#The_variants">a collective of two users</a> in the case of the logo) which were "donated" to the Wikimedia Foundation, their copyright being "assigned" to the Foundation, which later registered both as trademarks. Of course, the registration of trademarks is based on "use" not "ownership".
An extremely animated discussion of this incident began on the <a href="http://lists.wikimedia.org/pipermail/foundation-l/2009-April/051501.html">Wikimedia Foundation mailing list</a> with <a href="http://lists.wikimedia.org/pipermail/foundation-l/2009-April/051505.html">a comment made by WMF legal council Mike Godwin</a>, who tried to downplay the letter that was sent to Kildall. Unfortunately, at the time of this writing, it would seem that this de-escalation did not include granting permission for the Wikipedia Art site to use the "Wikipedia" name.
This is confounded by the idea that the Wikimedia Foundation requires users to adhere to a policy which is referred to as <a href="http://en.wikipedia.org/wiki/Wikipedia:No_legal_threats">No Legal Threats</a>. This policy states that anyone who makes a legal threat against other Wikipedia editors, or against the Foundation itself, will be blocked from using Foundation-hosted services until the legal threat is <em>resolved</em>. However, this courtesy routinely is not extended to those with whom the Wikimedia Foundation has legal differences. There is no evidence that any "dispute resolution" procedure was followed, and as a legally trained Wikipedian <a href="http://lists.wikimedia.org/pipermail/wikien-l/2009-April/100393.html">pointed out</a> on the English Wikipedia mailing list, a letter from an attorney is usually perceived as a "legal threat", regardless of how <em>nicely</em> the way the threat is phrased.
To further complicate matters, Wikipedia and other Wikimedia projects depend on the allowances of "fair use" as it is defined under US law in order to illustrate certain articles, such as pasting in short clips of audio recordings or images of album covers. This "fair use" of copyright materials was at the center of the recent <a href="http://www.theregister.co.uk/2008/12/07/brit_isps_censor_wikipedia/"><em>Virgin Killer</em> album cover</a> incident, and it is an integral part of the way that the Wikipedia community has decided that this type of use should be handled. As a matter of fact, if articles such as <a href="http://mako.cc/copyrighteous/20090411-00.comment">this</a> and <a href="http://whygive.wikimedia.org/2007/12/28/wikimedia-commons-the-power-of-free-content-media/">this</a> are any indication, Wikipedia contributors have even more radical ideas about copyright and trademarks: <em>they should be banned as the evil things that they are!</em>
Of course, one of the main problems of "free culture" is that it doesn't generate money, except if you license something to somebody else (something that you don't own but which has been labeled "free"). In order to license the content, you have to have rights to grant. The Wikimedia Foundation owns almost none of the content it serves, because the copyright owners do: the Foundation is only restating the grant of a license for its use, and this in spite of insisting <em>that they are not "publishing"</em> the material. It would seem that the only pieces of content that the Wikimedia Foundation owns openly would be the name "Wikipedia" and the project logos. They are however currently involved in <a href="http://www.techcrunch.com/2009/04/22/the-french-come-calling-for-wikipedia-orange-strikes-mobile-deal/">a licensing and "co-branding" project</a> with France Telecom's Orange mobile phone network. Yet even in the <a href="http://blog.wikimedia.org/2009/04/22/bonjour-orange-wikimedia-partners-with-orange-to-spread-knowledge/">Wikimedia Foundation's press release</a> about this new business relationship, the language used by Kul Wadhwa of the Foundation's Business Development department (which is sort of an odd concept for a "free culture", "open source" project to have in the first place) is rather mixed. On one hand we have Wadhwa saying :
<blockquote>I have been consistently impressed by their dedication to the Foundation’s mission of spreading free knowledge. They appreciate the importance of our community in everything we do, they’re committed to supporting neutral point-of-view, and they have an increasing interest in open source technology. The Foundation is always interested in business partnerships which understand our culture and help expand our mission, and Orange is an ideal partner for us.</blockquote>
However in the next statement, Wadhwa leaves the "free culture" world behind and enters the board room:
<blockquote>This is an important new revenue stream to build on our successful fundraising campaigns...</blockquote>
The <a href="http://wikimediafoundation.org/wiki/Press_releases/Orange_and_Wikimedia_announce_partnership_April_2009QA">Q&A page</a> also makes for interesting reading. Answer three is especially interesting here :
<blockquote>Q3: <strong>Is this partnership a way for Wikimedia to monetize content?</strong>
A3: The Wikimedia Foundation projects are free of advertising, and we don't expect that will ever change. However, under the free license used by the Wikimedia projects, it has always been permissible for other entities to republish Wikimedia project content, and add advertisements to it. Many organizations have done this. Our mission is to disseminate educational materials as widely as possible; we are happy to partner with both non-commercial and commercial entities to achieve that goal.
Within this partnership <strong>we have agreed that Orange will place targeted marketing alongside the branded Wikimedia content it will republish on the Orange mobile and web platforms. </strong></blockquote>
Although these two situations, <em>Wikipedia Art</em> and the Orange agreement, do not seem at the surface to be related, they come to pass at approximately the same time. This perceived change in attitude from the traditional "free culture" outlook to a more "bottom line, business-oriented" perspective seems to be interconnected in a very profound way.
On one hand, we have a not-for-profit charity entering into a for-profit relationship with another company to license content which they neither own nor claim to "publish", but only "host". The content is all made by third-parties who retain the copyright, upon which the not-for-profit is currently attempting to impose a change of license without formally consulting all of the copyright holders, and which contains a great deal of copyright material which can only be justified under a US "fair use law". In addition, much of this is concurrently happening in the European Union, where the copyright laws are much stronger and where "fair use" doesn't apply.
And then you have two guys who decided to make a performance art project on the not-for-profit site and are using the not-for-profit's name on their non-commercial website to discuss their own artistic work connected to the site.
Which is the bigger problem for the Wikipedia community? Which is a bigger threat to Wikipedia's future? Which is a bigger threat to society?
As a work of performance art, however, Wikipedia Art must be seen as a successful action, at least according to terms that I described in my initial article here. Wikipedia Art has acted as a mirror reflecting reality back to Wikipedia and the people who consider themselves part of that "community". As one participant <a title="Deleted post from WikiEN-l list" href="http://www.webcitation.org/5gLz9yKmr" target="_blank">posted</a> on the English Wikipedia mailing list:
<blockquote>Yeah, Wikipedia Art are basically trolls, but I find this disturbing. If Wikipedia can make legal threats to trolls and deny it, and accuse trolls of trademark violation in a baseless way, they can do it to anyone, and the next guy they do it to may not necessarily be a troll.</blockquote>
So, Akahele salutes Kildall and Stein for creating this situation in which the <em>reality</em> of the Wikimedia Foundation has been so clearly illustrated.
<strong>Image credits:</strong>
<ul>
<li>Wikipedia Art logo, <a title="Wikipedia Art logo, GFDL license" href="http://www.wikipediaart.org/" target="_blank"><span class="comment">GFDL License</span></a>.</li>
</ul>
