Two Wikipedians may face jury trial

In dramatic events that came to light last week, two English Wikipedia volunteers—Doc James (James Heilman) and Wrh2 (Ryan Holliday)—are being sued in the Los Angeles County Superior Court by Internet Brands ("IB"), the owner of Wikitravel.org. Both Wikipedians have also been volunteer Wikitravel editors (and in Holliday's case, a volunteer Wikitravel administrator). IB's complaints focus on both editors' encouragement of their fellow Wikitravel volunteers to migrate to a proposed non-commercial travel guidance site that would be under the umbrella of the WMF (Signpost story "Tough journey for new travel guide").

Disenchantment within the volunteer Wikitravel community appears to concern an intensification of advertising on the site, IB's technical management, and the company's treatment of the volunteers who have built the CC-licensed content over many years. In today's New York Times article, "Travel site built on wiki ethos now bedevils its owner", veteran journalist Noam Cohen writes that, according to Heilman, "as many as 38 of the 48 most experienced and trusted volunteers at Wikitravel have said they will move to the Wikimedia project". The migration of the remaining Wikitravel volunteers to the foundation would come six years after German-speaking Wikitravel editors walked out of the project soon after Internet Brands acquired it, forking into a new Wikivoyage site, followed soon after by their fellow Italian-speaking editors. The non-profit association that runs Wikivoyage voted three months ago to join the proposed travel-related WMF project.

After months of community-led discussion on Meta, last Thursday the WMF's Deputy General Counsel, Kelly Kay, announced that the board "is moving forward with the creation of this new project", and had filed a lawsuit "seeking a judicial declaration that IB has no lawful right to impede, disrupt or block" the creation of a new WMF travel website.

Kay's statement accuses IB of "disrupting this process by suing the two volunteers to intimidate other community volunteers from exercising their rights to freely discuss the establishment of a new community focused on the creation of a new, not-for-profit travel guide under the Creative Commons licenses." She said the foundation believes it is the real target of IB's legal action, and that its "only recourse is to file a lawsuit to deal head on with Internet Brand’s actions over the past few months in trying to impede the creation of this new travel project."

IB's lawsuit against the volunteers

Among other things, IB's 57-paragraph lawsuit:

• states that Wikitravel's content "can be created, deleted, modified, modified, and otherwise edited by anyone", and that every contributor to the site "gives the right to anyone else to copy the content", provided attribution to the original content creator is given and the CC-licensing is retained;
• asserts the company's ownership of the trademark Wikitravel, and that this has been established "at great labor and expense";
• claims that the use of a similar term (Wiki Travel Guide) by Holliday and Heilman "is intentionally designed to replicate" IB's trademark (the US Lanham Act is cited);
• alleges Heilman "announced" that the new WMF site would be called "Wiki Travel Guide", and accuses Holliday and Heilman of attempting to trade on the trademark, confuse the marketplace, and violate the CC-license;
• points out that Heilman is a board member of Wikimedia Canada (without clarifying its status as an independent entity or that chapters have no power to announce the creation of a new WMF sister project);
• reports that Heilman met with others at Wikimania on 12 July "to reach a further meeting of the minds as to the unlawful acts to be undertaken" (although there is no acknowledgement that IB's Chief Marketing Officer Chuck Hoover flew to Washington DC for the meeting, having publicly announced his intention to participate);
• takes exception to a number of instances of emailing within the Wikitravel volunteer community, in which it is claimed that the two volunteers "deliberately misrepresented facts and conspired with each other and many more to violate several laws in order to gain personally"; and
• alleges that as a result of the actions the company is complaining of, Holliday and Heilman "have been unjustly enriched and Internet Brands has been injured and damaged."

IB asks the court to restrain the defendants (and potentially the WMF by implication) from making visible use of the Wikitravel trademark; to award damages and costs against Holliday and Heilman; and to award punitive damages against the volunteers (i.e., to deter anyone from engaging in similar conduct). IB has specifically asked the court to consider Ryan Holliday's business as liable to the court's adjudication of his personal liability, and has asked for a jury trial.

The Signpost understands that Heilman has not yet been served with a summons and legal papers, and that after he is served he will have up to 30 days to provide a written response to the court and the plaintiff. The WMF has arranged for both volunteers to be represented by the high-profile international legal firm Cooley LLP, which has expertise in trademark, copyright, user-generated content, intellectual property, and competition law. Cooley LLP—comprising some 300 litigation attorneys—will also represent the foundation in its lawsuit against Internet Brands. IB is represented in both actions by Wendy E Giberti of iGeneral Counsel in Beverly Hills, CA.

The WMF's lawsuit against IB

Although the right to fork CC-licensed content has been assumed to be legal, it has received little judicial attention in the US. The foundation is asking the Superior Court of California in the County of San Francisco to declare that:

• IB has no right to limit the use of user-created CC-licensed content on Wikitravel;
• all such content may be freely migrated without interference from IB;
• IB has no lawful right to prevent current or former Wikitravel volunteers from freely contributing to a new Wikimedia-owned travel website;
• Wikimedia may contact, communicate with, or express support for any current or former volunteer Wikitravel authors or administrators who are seeking to participate in the new website, even if this results in those people no longer contributing to Wikitravel; and
• Wikimedia may assist people to copy and migrate content from Wikitravel to a WMF or third-party site.

The foundation is asking that costs be awarded against IB.

The German news portal heise.de reports in its story "Right to fork: Wikimedia sues Wikitravel operators" that IB told them the company "has no problem that Wikimedia is launching a new travel site—but we insist that the foundation respect our copyright and trademark rights, and the laws against unfair competition." (the Signpost's translation)

The Signpost has been unable to ascertain the likely timeframe for each action, but understands that the legal processes will probably hold up the launching of the new site for some months.

The Signpost is a volunteer news outlet dedicated to providing fair and balanced reportage to the Wikipedia communities. It is independent of the Wikimedia Foundation, its board of trustees, and the various independent chapters. The content here does not represent the views of any particular editor or group on any website, Wikimedia-affiliated or otherwise.

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• You know, this just reinforces my belief that companies these days are either unable or unwilling to accept the fact the Internet has fundamentally altered the economical reality of this day and age by proving that a beta form of "enlighten socialism" can in fact exist in this day and age. Companies across the world need to accept that for the first time in history humanity need not pay for information, goods, services, or other material that can be freely acquired on the internet. The fact that companies would sue simply to retain their misconceived and now obsolete economic ideologues demonstrates to me that these people can not be trusted with the future that our generation is building. TomStar81 (Talk) 06:40, 11 September 2012 (UTC)[reply]
• What a sad commentary of the times, and I am very glad to see that Wikipedia is supporting these two volunteers. It's a sad state of affairs when one gets sued for trying to help mediate in a Wikipedia discussion, which in my opinion is generally a thankless activity anyway, somewhat akin to getting on your knees and scrubbing out the toilets. Jane (talk) 08:35, 11 September 2012 (UTC)[reply]
• Wow, a business trying to keep your volunteers by legal coercion. I'm sure that will go down well with their volunteers. IRWolfie- (talk) 09:13, 11 September 2012 (UTC)[reply]
  • I think it's reasonably clear to IB that Wikitravel is a lost cause; the purpose appears to be to intimidate volunteers on their other sites from daring to do the same - David Gerard (talk) 12:00, 11 September 2012 (UTC)[reply]
• Talk about shooting yourself in the foot! Suing your volunteers will scare off most current and potential volunteers. Yaris678 (talk) 11:49, 11 September 2012 (UTC)[reply]
• Oops, I always had the idea that volunteering was voluntary! The Banner _talk 11:52, 11 September 2012 (UTC)[reply]
• The headline is too sensational. The volunteer has not even been served. And there will be a long time and many hurdles before any "trial." "Sued" yes, "facing trial", no. Alanscottwalker (talk) 14:00, 11 September 2012 (UTC)[reply]
  • That's odd: the title of the summons is "Internet Brands, Inc. ..., plaintiff v. William Ryan Holliday, ... and James Heilman, inclusive, defendants." And see "JURY DEMAND" after paragraph 58: "Plaintiffs request a jury trial on all claims so triable." And Paragraphs 3(a) and (c) on p. 9 both refer to "trial". The title of this article is framed "set to face", not "face". Tony (talk) 14:17, 11 September 2012 (UTC)[reply]

Nope, I think you're off base here, Tony... One is not "set to face trial" if one has not even been served papers... One is "set to face trial" as soon as a court date for a trial is set... "Wikipedia volunteers face potential trial" is about as far as I'd go. Carrite (talk) 17:44, 11 September 2012 (UTC)[reply]

I've been bold and modified the title to indicate that there is some uncertainty here, as opposed (as the headline implied) that a trial date had been firmly set. -- John Broughton (♫♫) 18:44, 11 September 2012 (UTC)[reply]

It was reverted by Tony, but I agree that the title is misleading. My impression from the title was that the trial date was already set. This should be retitled "Wikipedia volunteers sued", which is entirely factual and not subject to misinterpretation. —howcheng {chat} 17:47, 13 September 2012 (UTC)[reply]

And re-reverted. The title is set on more than a thousand talk pages. And I disagree with the arguments here. Tony (talk) 22:55, 13 September 2012 (UTC)[reply]

Tony, you're outnumbered 5 to 1 on the title. —howcheng {chat} 02:11, 14 September 2012 (UTC)[reply]

• The deeper underlying issues here is about collaborative communities.

Communities like those writing Wikimedia and Wikitravel are purely members of the public. They write content in the same way they go to a local jazz or story-writing club. They are bound to the websites as much as a group of individuals is bound to stay with a club venue it habitually visits (ie not at all).

• They have the right to decide individually or en masse that they don't like how a club is changing, or to decide to explore going to another club instead.
• They have the right to have other people suggest other clubs to them or demonstrate that their wishes for a club are better met with another club than their present one.
• It is allowed whether or not the "others" are affiliated with or socially members of another club.
• It is allowed commercially in a free market (eg, when a telesales person suggests to many people they change car insurers or a business targets a competitor with an offer) although this is not the situation here. It is not "interference" to compete or be able to meet someone's needs better when they are dissatisfied. It is normal social activity and commercial activity to do so.
• Either way it is very clearly allowed.

So the issue here is that many members of the public writing Wikitravel content wish, for whatever reasons, to consider moving their "writing club" elsewhere.

1. They have the absolute right to do so.
2. They have the absolute right to discuss such a move as members of the public with a common social activity, and no legal obligation not to.
3. They have the absolute right to have other sources of hosting and services liaise, open dialog, or respond to dialog with them, much as if a new club venue is considered.
4. And, because their entire writings to date are CC-by-SA, they have the absolute right to export the existing text if done correctly - which was never IB property.

FT2 ^{(Talk | email)} 18:19, 11 September 2012 (UTC)[reply]

• I'm with all of the above. Internet-age bourgeois Hitlers... Whoop whoop pull up ^{Bitching Betty | Averted crashes} 18:38, 11 September 2012 (UTC)[reply]
• Unfortunately the state of the law is such that one cannot compel any distributor of content to continue to distribute it, even if it is to facilitate migration to a new site. This is why it is critically essential for backups of the entire state of a site to be continually created and archived in a peer-to-peer fashion by its members, or by a trusted third party like Internet Archive. If dumps or an API aren't provided, then web scraping can be developed. Some content distributors attempt to quash such attempts at preservation in their terms of service by failing to provide dumps and disallowing web scraping, etc. - any such distributor should be quickly abandoned in favor of one that provides positive migration rights. I'm only too familiar with this from my experience with TV Tropes, which had no qualms about killing entire sections of their site just to make their ad sponsors happy, with no warning (see TV Tropes deletes every rape trope; Geek Feminism wiki steps in). I believe WMF has clauses in its terms of service relating to smooth migration in the event of a shutdown (someone fact check this?), but not all providers are so generous. Dcoetzee 20:56, 11 September 2012 (UTC)[reply]
  • Hasn't that been reversed, Dcoetzee? --Orange Mike | Talk 14:00, 12 September 2012 (UTC)[reply]
• It is disappointing that Wikipedia and Wikitravel didn't try to work out a way to synchronize their Wikis so that the two sites could function in unison, which would have been an opportunity to expand the functionality of Wiki software. I suspect there are niches for private companies in Wiki content generation - for example, professional administration, paid positions to handle backlogged tasks, smart and safe handling of ads carefully solicited to add value to entries. But when this company claims that people contributing their content under a CC license are in fact assets, property of the site owner, and that the right of people to speak with them can be legally circumscribed - that is far beyond the pale. Wnt (talk) 02:21, 12 September 2012 (UTC)[reply]
  • Internet Brands wouldn't be interested in such a scheme: they are—like patent trolls—a non-practicing entity; doing little to develop the intellectual property they bought, only collecting the advertising revenues. Their downfall will fortunately be that they only own the Wikitravel trademark and not its community or content. —Ruud 17:29, 12 September 2012 (UTC)[reply]
• I agree with the comments above that it might be best for the headline ("set to face jury trial") to be rephrased. There are many possible scenarios, such as IB's case being dismissed on a motion to dismiss or on summary judgment, in which the case would not go to trial. Without getting into the merits of this specific case, as a general statement, only a small fraction of all civil cases filed in American courts actually wind up going to trial. Newyorkbrad (talk) 15:24, 13 September 2012 (UTC)[reply]
• Regardless of the outcome I would imagine Wikitravel can wave bye-bye to their volunteer base, and with it their advertising revenues. Rich Farmbrough, 23:51, 13 September 2012 (UTC).[reply]
  
• I'd like to point out that while the title was inaccurate (better now!), the article itself was very good. And I'll ditto everyone else on the "WMF's involvement here is a good idea." --Philosopher ^{Let us reason together.} 06:36, 14 September 2012 (UTC)[reply]
• Comments.
• I don't agree with the arguments concerning the original title of the piece, but I'm not going to argue further and have changed the title in accordance with the objections.
• We might consider avoiding bad grace about the company (which made a business error in purchasing a trademark almost entirely reliant for its profitability on content it didn't and can't purchase). One might hope that the company affords the community and the foundation the good grace we might show it. More importantly, we need to encourage support for the two editors who've been caught up in this unpleasant scenario.
• On a positive note, we need to start thinking as individuals about the challenges of starting the new sister project, which will stimulate our best minds. If it's done well, it could be a great service to the global public and could set new standards for travel information. I can think of a number of policies and guidelines that might need to be adapted for the specific environment of an educational travel wiki; in particular, how to deal with product placement will be an issue.
• A lot of Wikimedians will be delighted to see the board's strong support for both the new site and our two colleagues. Tony (talk) 07:57, 14 September 2012 (UTC)[reply]