Year-end legal surprises aimed at changes to Section 230 and U.S. copyright law

Lame duck US President Donald Trump created more puzzlement on Wednesday with his veto of the United States defense appropriations act, which had passed Congress with a "veto-proof majority". His stated reasons were the inclusion in the bill of a process that could be used to rename military bases that are named for Confederate military leaders, and the lack of a repeal of Section 230 in the bill. His veto message states that "Section 230 facilitates the spread of foreign disinformation online".

Voting on a veto override is expected to take place on Monday, December 28, a day after publication of this issue of The Signpost. If successful, it would be the first veto override of his presidency.

Section 230 provides immunity to the Wikimedia Foundation, and social media sites in general, from lawsuits arising from most user generated content. In 2017 the WMF said "The Wikipedia we know today simply would not exist without Section 230." On December 15, WMF announced that "to ensure that laws support vibrant online communities such as Wikipedia", it had joined Internet.Works, a newly formed coalition aiming to defend Section 230. Members include Automattic, eBay, Reddit, Pinterest, Medium and other internet platforms (but none of the Big Tech companies).

A simple repeal of the section, which would have to be written into a new bill, and then passed by both houses of Congress and signed by the president, would likely be very difficult. Failure to override the veto would delay $740 billion in defense appropriations, so would also be very difficult.

While Trump's current challenge to Section 230 may seem unlikely to succeed, two other legal year-end surprises are set to become law that will affect Internet users and platforms. On December 21, Congress approved the Consolidated Appropriations Act, which combines $900 billion in COVID-19 stimulus aid with a $1.4 trillion omnibus spending bill for the 2021 fiscal year. At 5,593 pages, it is the longest bill ever passed by Congress. Besides details on the actual appropriations, it contains around "3,000 pages [of] totally unrelated bills that Congress couldn't pass through the rest of the year" (as summarized by Techdirt). These include two controversial copyright bills which were only publicly confirmed to be part of the act on the day of the vote:

• The CASE Act will enable copyright owners to bring alleged copyright violations before a tribunal at the Copyright Office, without having to go through the court system. It had been opposed by public interest groups such as the Electronic Frontier Foundation (EFF), Public Knowledge and the Authors Alliance, who argue that it does not appropriately protect individuals from "sophisticated actors" (corporations, copyright "trolls" and similar abusers). Other law experts worry that the new mechanism may be used to target fair use and de minimis usage. Law professor Eric Goldman unfavorably compared the CASE Act's $30,000 maximum fine with the $600 COVID-19 relief introduced elsewhere in the same appropriations act: "you're going to need 50 stimulus checks to cover the damages demanded by a copyright owner in your first CASE Act proceeding".
• The other new provision makes it a felony to stream copyright protected content. While it seems less likely to affect Wikimedia contributors, it is worth noting that a different version of it had been part of the 2011/12 SOPA/PIPA bills that Wikipedia and many other websites protested at the time.

Ironically, during the last few days the remaining obstacle for both provisions to become law was the threat of another Trump veto to the entire Consolidated Appropriations Act (over his objections to the $600 relief amount). However, as we go to press on Sunday, December 27, The New York Times has reported that Trump just signed the Consolidated Appropriations Act into law. – S & H

Will European trolls become able to sue over code of conduct enforcement?

On December 15, the European Commission unveiled its long awaited proposals for the Digital Services Act (DSA) and Digital Markets Act (DMA). In a special edition of its monthly "EU Policy Monitoring Report", the Free Knowledge Advocacy Group EU reacted with "very rough first notes", expressing appreciation that the DSA reflects "the idea of safeguarding fundamental rights and freedom of speech even within online services", but warning that "Communities/community-driven moderation and platforms are not really thought of anywhere, which leads to a few risks." (The group consists of European Wikimedia chapters and community members, and is also known as the EU Policy group.) The Wikimedia Foundation's Public Policy team followed up a few days later with "early impressions" on the DSA. The two groups highlighted different aspects within the same two areas of concern in the proposal text.

Firstly, Article 12-2 requires online services to "act in a diligent, objective and proportionate manner in applying and enforcing the restrictions" of their terms and conditions, "with due regard to the rights and legitimate interests of all parties involved, including the applicable fundamental rights of the recipients of the service". The EU Policy group is concerned "that people claiming rights in bad faith might try to alter Wikipedia articles by going over a legal process supposed to force platform operators to defend fundamental rights." The Foundation said:

[We worry] that 'diligent, objective and proportionate' can mean very different things depending on who you ask, and that community-governed platforms would be hurt by unclear standards and a lack of discretion. Terms of use (like the Foundation’s Terms, or even the Universal Code of Conduct) frequently include provisions prohibiting clearly harmful but often hard-to-define and even platform-specific things like harassment, disruptive behavior, or trolling. At what point would a regulator or a litigious user think that a certain volume of trolling meant that a service wasn't being 'diligent' in enforcing its 'don’t troll other users' rule? Or what happens when someone whose posts are moderated, or who thinks someone else's behavior should be moderated, decides that the moderators aren’t being 'objective?'
— Wikimedia Foundation Public Policy Team via Medium

Secondly, the EU Policy group argues that "in Articles 14-19 (basically the content moderation systems) we need stronger safeguards and rights for communities and individual users ('counter-notices' within the Notice & Action system being one basic example)." The Wikimedia Foundation is worried that it will become subject to undue burden caused by a vague wording in Article 14:

[The article] says that an online provider will be presumed to know about illegal content — and thus be liable for it — once it gets a notice from anyone that that illegal content exists. There’s a number of different ways that ambiguities in this section can create problems [...]. For example, if the Foundation got a notice from someone alleging they had been defamed on one article, what would the Foundation be responsible for, if the alleged defamation was referenced in or spread across multiple articles, or talk pages, that the user may not have specified?
— Wikimedia Foundation Public Policy Team via Medium

On the other hand, the Foundation's Public Policy team applauded "that the DSA preserves [the intermediary liability provisions] of the e-Commerce Directive, which ensure that the Foundation can continue hosting the knowledge of countless editors and contributors" (similar to Section 230 in the United States, see also above).

In its monthly report, the EU Policy group clarifies that the other big new proposal unveiled by the EU Commission on December 15, for the Digital Markets Act, should not affect Wikimedia projects and organizations: "This basically is a list of 'dos and don’t' for very large platforms that have a so-called gatekeeper position on the internal market. To be part of that club you need to have a turnover of over 6.5 billion euro, so Wikimedia is out."

But the report notes relevant recent developments on several other ongoing EU regulation efforts:

• "On December 10th a compromise was adopted on terrorist content regulation" ("TERREG", still to be finalized and formally adopted by the Council of the EU, and to be voted on by the European Parliament, possibly next month already). The group appreciates that in contrast to earlier versions, the current proposal "will exclude material disseminated for educational, journalistic, artistic or research purposes" and "content which represents an expression of polemic or controversial views in the course of public debate." Still, it criticizes that "the competent authorities [which can order removals of "terrorist" content, generally to be taken down within one hour] will not be judicial or independent." Also, the group notes that its "desired outcome ... has not been reached" on the subject of cross-border removal orders. (This issue might become more salient if recent concerns persist that some EU countries like Hungary and Poland fail to uphold the rule of law and democratic principles such as media freedom and judiciary independence.)
• The EU Policy group worries that an exception in the EU's proposed Data Governance Act "is worded in a way that Wikidata and Europeana might have issues with".
• Regarding the e-Evidence regulation, "we got one fix - prosecutors won’t be able get data about which IP accessed [which] Wikipedia article without a judge’s stamp. But we also have one fail - the hosting Member States agency won’t have a veto right on production orders [requiring e.g. a website to provide user data] if fundamental rights are violated by the issuing prosecutor." – H

Public Domain Day, 2021

On January 1, 2021, works first published in 1925 in the US will enter the public domain, according to the Center for the Study of the Public Domain at the Duke University School of Law. The books affected include:

• The Great Gatsby by F. Scott Fitzgerald
• Mrs Dalloway by Virginia Woolf
• In Our Time by Ernest Hemingway
• An American Tragedy by Theodore Dreiser
• Manhattan Transfer by John Dos Passos
• Arrowsmith by Sinclair Lewis
• The Secret of Chimneys by Agatha Christie
• On the Trail of Negro Folk-Songs by Dorothy Scarborough and
• The Writing of Fiction by Edith Wharton.

Films affected include:

• Go West starring Buster Keaton
• The Freshman starring Harold Lloyd
• The Merry Widow and
• Lovers in Quarantine, a comedy.

Some musical compositions are also affected, but not necessarily the performances of those works. Compositions affected include Sweet Georgia Brown and some works written by Lovie Austin, Amy Beach, Sidney Bechet, Irving Berlin, Duke Ellington, George and Ira Gershwin, W.C. Handy, Lorenz Hart and Richard Rodgers, Fletcher Henderson, Jelly Roll Morton, Ma Rainey, Bessie Smith, Sippie Wallace, and Fats Waller. -S

Billionth edit draws closer, as does 20th birthday

The billionth edit to English Wikipedia made in the current Wikipedia database software will be made soon – according to analysis by The Signpost staff, likely between 12 January and 16 January, just before or after Wikipedia's 20th birthday on 15 January. The current Wikipedia database was initiated on January 25–26, 2002, when Wikipedia used phase II software. Before that date, UseModWiki was used to edit and edit counts are murky - perhaps there were a few hundred thousand edits using UseModWiki, some but not all of which have since been recovered and reloaded into the system as part of the thousand million edits. Some purists might wish to include the number of edits transferred from Nupedia to Wikipedia as well. While the "billionth edit" may be inexact, it does symbolize a remarkable achievement – an encyclopedia of over 6,215,569 articles built by at least 1,000,000,000 edits. Even if a hundred million or more of those were vandalism or spam. – B & S & W and – G

Reversal of active administrator decline?

The Signpost noted exactly one year ago that "the tally of active administrators...does not appear likely to rise above 500 again, unless there is a major change in trend." Well, we are ending the month (as of time of publication) with 504 active admin accounts on the list, and it was over 520 earlier this year. At first blush, this looks like good news going forward?

However, with only 243 new admins in the last ten years and only 17 new administrators this year, the long-term trend is still unsustainable: The average new admin would need to be active for thirty years for a supply of 17 new admins a year to maintain a cadre of 500 active admins. It isn't just that a large majority of our active admins were appointed over a decade ago. Only 50 of our current administrators first created their accounts in the last ten years. We are not recruiting enough admins from among members of the community who joined us between 2011 and 2019. – B & W

O Wikibaum

Wikimedia Foundation announced on December 7 that it had reached a fundraising milestone allowing it in turn to fund the planting of 400,000 trees. It is working with the Plant Your Change initiative which aims to plant 100 million trees in the next decade, as part of the foundation's carbon footprint reduction strategy. -B

Brief notes

• New administrator: The Signpost welcomes the English Wikipedia's newest administrator, Hammersoft.
• Milestones: The following Wikipedia projects reached milestones this month:
  • Bengali Wikipedia: 100,000 articles
  • Burmese Wikipedia: 80,000 articles
  • Ido Wikipedia: 30,000 articles
  • Mongolian Wikipedia: 20,000 articles.
  • Picard Wikipedia: 5,000 articles
  • Oromo Wikipedia: 1,000 articles
  • The Malagasy Wiktionary has fallen below 2,000,000 entries, as the cleanup continues (see previous Signpost coverage)
• Lapsed user-group: The Affiliations Committee announced that the User Group Botswana's status as an affiliate has lapsed.