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Year-end legal surprises cause concern, but Public Domain Day is imminent

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By Bri, Smallbones, WereSpielChequers and Tilman Bayer

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

In a complex late-2020 budget/policy scenario, retention of Confederate names at U.S. installations could affect Wikipedians' legal protections (soldiers at Camp Lee shown).

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:

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?

Logo of the Free Knowledge Advocacy Group

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:

Public Domain Day, 2021

First edition dust jacket cover of The Great Gatsby, whose text will enter the public domain on January 1 (with the dust jacket already being in the public domain for different reasons)

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:

Films affected include:

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

Wikipedia's 20th birthday is on 15 January

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?

Number of active administrators by month in 2020 – over 500 more often than not

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

Growing the wikiforest

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

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Section 230

This is a rather positive end to the dumpster fire aka 2020. But I have a question: many people here are apparently worried that Trump's repeal of Section 230 will negatively affect Wikipedia. But if I recall correctly, Biden also wants to repeal Section 230. Is anyone worried that Biden may also negatively affect Wikipedia if he repeals the law? 45.251.33.98 (talk) 05:29, 28 December 2020 (UTC)Reply[reply]

There is definitely reason to be concerned about Biden's position in this matter as well. In January 2020, during the primaries, he called for Section 230 to be "revoked, immediately", which on the face of it isn't a much more thoughtful stance than Trump's. But I think the difference is that once he is in office, people expect Biden to leave this kind of campaign-time ranting behind him, and to be much better than Trump at listening to experts and taking potential negative consequences of his actions into account. In any case, presidents can't repeal Section 230, only Congress can.
Still, presidents have lots of other levers affecting internet and communications policy, such as the FCC. As summarized by Protocol.com earlier this year, there is concern about "Biden's fervent support of SOPA-PIPA, two Hollywood-backed anti-piracy laws that the industry [and Wikipedia] protested in 2012. 'Biden has always been viewed as sort of Hollywood's guy on tech and telecom policy,' [a] Democratic campaign veteran said. Biden's deputy campaign manager for communications strategy, Kate Bedingfield [now designated White House Communications Director], was a former vice president of communications with the Motion Picture Association of America, a trade group that counts Disney, Paramount, Sony, Universal and Warner as members." Techdirt also reminded us that "while [Biden] was a Senator, he was a reliable vote on whatever terrible copyright bill Hollywood pushed for, and then in the White House he was, again, a giant proponent of Hollywood's agenda. He convened a 'piracy summit' that was only representatives of legacy industries -- with no one representing internet companies, independent artists who use the internet, or any of the many artist and consumer groups out there." I guess one needs to hope that he has evolved a bit on these matters, like he has on his past tough-on-crime and anti-LGBTQ policymaking.
Regards, HaeB (talk) 10:27, 28 December 2020 (UTC)Reply[reply]

Billionth edit

I've just made some tweaks to the billionth edit blurb. MediaWiki proper wasn't used until July 2002. Graham87 06:48, 28 December 2020 (UTC)Reply[reply]

Is that article edits, or edits in all namespaces (user and talk pages, etc)? AnonMoos (talk) 08:07, 28 December 2020 (UTC)Reply[reply]
Edits in all namespaces. Graham87 12:40, 28 December 2020 (UTC)Reply[reply]
Also file uploads, I think, see Special:Diff/997082405 for example. ☆ Bri (talk) 02:02, 30 December 2020 (UTC)Reply[reply]

Section 230, CASE Act, & the Digital Services Act

It's looking more & more that instead of separate countries, or even finite groups of countries (such as the EU) establishing differing laws about free speech, we need an international treaty concerning copyright, defamation, & hate speech for online fora. This is approaching the unworkable situation described by one medieval commentator: one could have three people sharing the same room in an inn who are governed by three entirely different sets of laws. Too many online communities are international in nature, which inevitably causes problems for all involved. I don't know if this will result in a good thing -- by guaranteeing some minimum expectations of freedom of speech -- or a bad thing -- by enforcing the worst practices of any country upon all of the others. Nevertheless, the need for a level ground is clearly needed, & hopefully we average netizens can be involved & protect our natural rights before the corporations impose terms that benefit only them. -- llywrch (talk) 22:42, 29 December 2020 (UTC)Reply[reply]

There are international treaties governing copyright. And the Universal Declaration of Human Rights article 19 covers free speech: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. So, what now? ☆ Bri (talk) 02:02, 30 December 2020 (UTC)Reply[reply]
In the context of copyright, one more thing is the never-ending issue of freedom of panorama. While there's 50% chance of FOP introduction in countries like ours and South Africa (Wikimedia South Africa's subpage detailing track progress of the Copyright Amendment Bill), I have a gut feeling that there might be a reversal of FOP statuses in several countries. For instance, the conclusion in this Art Law Centre of Australia article on public sculptures seems to advocate the removal of FOP for 3D works in Australia because "sculptors in Australia should not be treated differently to other visual artists." This, however, may kill thousands of CC/PD-licensed images of Australian 3D public art at Commons and may collaterally damage many enwiki articles on Australian 3D public art (forcing these to use "non free images"). I don't have any latest news on FOP from EU and other regions and areas. Theoretically a global FOP is possible, but very unlikely for this year, this decade, or the next decades to come. JWilz12345 (Talk|Contrib's.) 08:15, 26 April 2021 (UTC)Reply[reply]
Addition: not to mention the restrictions to FOP made by the Central American countries of Costa Rica, Honduras, and Nicaragua during 2000s, each restricting FOP to "personal use only" (see also c:Commons:FOP Costa Rica, c:Commons:FOP Honduras, and c:Commons:FOP Nicaragua). JWilz12345 (Talk|Contrib's.) 12:43, 29 June 2021 (UTC)Reply[reply]

Delayed appropriations

The article says "Failure to override the veto would delay $740 billion in defense appropriations, so would also be very difficult." Note that the bill that was vetoed is an authorizations bill, not an appropriations bill. The President signed the omnibus appropriations and COVID bill, including appropriations for the Department of Defense, on December 27, 2020. So the veto of the authorization bill does not delay the defense appropriations. —Salton Finneger (talk) 16:30, 30 December 2020 (UTC)Reply[reply]

I inferred a couple of words not there: "Failure to override the veto would delay [expenditure of] $740 billion in defense appropriations..." which I think is closer to correct. Overseas contingencies are already authorized, so the totally correct statement would be "Failure to override the veto would delay [expenditure of much of] $740 billion in defense appropriations...", which is probably puzzling to "lay" readers, and I'm not sure it's better to write it that way. - Bri.public (talk) 17:47, 30 December 2020 (UTC)Reply[reply]





       

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