Tuesday, April 28, 2009

Wikipedia Threatens Artists and Fair Use?

www.wikipediaart.org
I have reported on the Wikipedia Art project since its ‘birth’. The project itself, as well as the communication I had with artist Scott Kildall and Nathaniel Stern, interested me. Due to my interest I have been very close to the story. In fact, at one time a few bloggers confused me for one of the projects ‘fathers’. Thus, I feel that it is important to reveal updates to the story as they come in. If anything you could say I’m a supportive ‘participant’ of the Wikipedia Art project as a whole.

I was informed of the project earlier this year when artist Nathaniel Stern, a fellow www.myartspace.com member, contacted me about an ‘Internet-based and interventionist project’ that he and Scott Kildall had been working on. Stern informed me that the project would be titled "Wikipedia Art," and that the project is art that exists only on Wikipedia. I found the project to be intriguing because technically it is art that anyone can edit-- a mass collaborative project that welcomes all.

At the time Stern explained to me, “The caveat, of course, is that the piece needs to follow the enforced rules on Wikipedia. Any changes to the art must be cited from 'credible' external sources: interviews, blogs, or articles in 'trustworthy' media institutions, which birth and then slowly transform what it is and does and means simply through their writing and talking about it.”. He added, “It may start as an intervention, turn into an object, die and be resurrected, etc, through what we've started calling "performative citations.".

Needless to say, the Wikipedia Art project did not last long on Wikipedia. The project, or at least that aspect of the project, was ’dead’ in under 24 hours. Thus, Kildall and Stern documented the project-- its process and outcome-- on their own website-- www.wikipediaart.org. Unfortunately, their project has not been well received by the Wikimedia Foundation. In fact, reports state that they have been threatened with legal action.

According to the Ars Technica website-- backed by contact I’ve had with Kildall and Stern-- artist Scott Kildall received a letter in March from Douglas Isenberg, counsel for the Wikimedia Foundation. Isenberg demanded that the wikipediaart.org domain be transferred to the Wikimedia Foundation. Due to the letter Kildall and Stern sought legal help from James Martin. Martin sent a reply to Isenberg on the behalf of Kildall and Stern.

In the letter Martin noted that the wikimediaart.org site did not claim to be connected with or endorsed by Wikipedia in any way and that the site was not being used for any commercial purpose. Martin stated, "We are disappointed by Wikimedia's efforts to suppress free speech by threatening legal action,". However, Isenberg’s replies apparently made it clear that the Wikimedia Foundation would not accept Kildall and Stern’s project as a mere critique or art project.
According to Kildall and Stern, Wikimedia Foundation threatened to take the case to the Uniform Domain Name Dispute Resolution Policy (UDRP) of the World Intellectual Property Organization (WIPO) and hinted at further legal action. In fact, Isenberg mentioned a past legal issue involving another site-- a scare tactic. The pressure was on-- Kildall and Stern sought further help from a number of sources, including the Fair Use Project and Lawrence Lessig-- FUP and Lessig offered advice, but refused to help directly. The duo than made contact with Paul Levy of the Public Citizen Litigation Group-- who accepted the case on a pro bono basis if the issue goes to litigation. Levy is noted for having worked to defend fair use of trademark names in the past.

According to reports, Levy’s position is that the Wikimedia Foundation is trying to “skirt US law” due to the fact that they are fully aware that legal precedents strongly suggest that Kildall and Stern’s Wikipedia Art project, including the domain name wikipediaart.org, are protected by free speech and fair use grounds. Needless to say, Levy has made it clear that if the Wikimedia Foundation files a UDRP claim against the Wikipedia Art site he will seek a declaratory judgment of non-infringement on behalf of Kildall and Stern. In response to the Wikimedia Foundation’s attorney, Mike Godwin, Levy stated, “We are not willing to allow this dispute to be resolved by reference to private law instead of the law of the United States that governs both your client and mine.".
Mike Godwin, the attorney for the Wikimedia Foundation, has stated that no litigation was threatened or commenced. In fact, Godwin informed Ars Technica that there was never a threat of legal action against Kildall or Stern. Godwin insists that he contacted the artists on behalf of the Wikimedia Foundation in order to request that a disclaimer-- stating that the Wikimedia Foundation is not associated with the site-- be added to www.wikipediaart.org.

Godwin stated, "The possibility of a disclaimer is inherent in the suggestion that we resolve our differences amicably,". However, as reported by Ars Technica, none of Isenberg’s correspondence-- who originally contacted Kildall and Stern on behalf of the Wikimedia Foundation-- mentions anything about a disclaimer request nor does the Isenberg correspondence state that a disclaimer would be a possible resolution in regards to the dispute.

Obviously, if you go by reports, the Wikimedia Foundation is flip-flopping on the situation. As for Scott Kildall and Nathaniel Stern-- they have support. Ars Technica and the Electronic Frontier Foundation have both showed support for the Wikipedia Art project and the issue over the domain name wikipediaart.org. In fact, Corynne McSherry of the Electronic Frontier Foundation, has stated that she is disappointed with Wikipedia over the issue. It should be noted that the Electronic Frontier Foundation has represented Wikipedia in the past in support of free speech.
As it stands it seems that the situation is in legal limbo. The Wikimedia Foundation has yet to withdraw its original letter-- so the threat of facing legal action is still a reality for Scott Kildall and Nathaniel Stern. The situation has not been good for the Wikimedia Foundation’s image either-- bloggers have pointed out the contradictions and hypocrisy involved with this specific situation. After all, Wikipedia would not exist if it were not for free speech and 'fair use'.
That is the key point to remember when thinking about this situation-- the fact that Wikipedia would not exist if it were not for free speech and the defense of 'fair use'. If Wikimedia Foundation were to pursue legal action against Kildall and Stern it would potentially establish a legal precedent that would work against Wikipedia in the future-- which might be why the situation is in legal limbo.
Anyone who follows the Myartspace Blog knows that I take a hard stance in support of copyright and trademark law. However, I also support the concept of "fair use" as long as it is not an extreme interpretation of the defense. In this situation we have two artists who have commented on-- and made parody of-- a widely known website. Thus, I would say that the actions of Scott Kildall and Nathaniel Stern fall under the defense of "fair use". They are not making profit from the Wikipedia Art project or wikipediaart.org-- they are simply offering a critique of a widely known website. This is a prime example of why we have "fair use" in the first place.
That said, it is not hard to find companies and organizations that expect all or nothing interpretations of ‘fair use’ until another individual or entity expects it of them. The fact that this specific situation involves a ‘fair use’ hassle from the Wikimedia Foundation-- which relies on the defense of 'fair use'-- comes as a surprise to individuals who, up until now, were supportive of Wikipedia in general.

The Wikipedia Art project article has been removed from Wikipedia, but an article detailing the Wikipedia Art controversy has recently appeared on the site. Which begs the question-- why would the Wikimedia Foundation-- which prides itself on free speech and open knowledge-- consider taking legal action against two artists in a way that would stifle free speech and hinder 'fair use' as we know it in the first place?

Links of Interest:

Wikipedia Art controversy -- article on Wikipedia
www.en.wikipedia.org/wiki/Wikipedia_Art_Controversy_2009

Wikipedia Threatens Artists for Fair Use -- Electronic Frontier Foundation
www.eff.org/deeplinks/2009/04/wikipedia-threatens-

Wikipedia Art dispute pits artists against Wikimedia Foundation -- Ars Technica
http://arstechnica.com/tech-policy/news/2009/04/wikipedia-suit-could-put-it-on-the-wrong-side-of-fair-use.ars

Wikipedia Art: A Virtual Fireside Chat Between Scott Kildall and Nathaniel Stern -- Myartspace Blog
www.myartspace.com/blog/2009/02/wikipedia-art-virtual-fireside-chat.html

Art Space Talk: Scott Kildall and Nathaniel Stern (interview with Kildall and Stern) -- Myartspace Blog
www.myartspace.com/blog/2009/04/art-space-talk-scott-kildall-and.html
Take care, Stay true,
Brian Sherwin
Senior Editor
myartspace.com
Myartspace Blog on Twitter

5 comments:

wikipediaSNARK said...

Glad, glad, glad you posted this!Here is a link to the response from Doug Isenberg

http://wikipediaart.org/legal/040909-WikimediaResponse.html

I think this whole thing is funny. He says that Wikipedia support their right to maintain an editable art project as long as it is under a different name. I guess Wikipedia does not understand that they are the focus of the art project and critique so it would defeat the purpose if all mentions of Wikipedia are removed from their project.

Another funny thing is that Godwin called the two “would-be artists”. So I guess they are not artists now because they are critical of Wikipedia? Yet they are notable by consensus on Wikipedia. LOL.

Nathaniel Stern has been exhibited in three museums that are all notable by consensus on Wikipedia. I think that is notable since most artists are lucky to exhibit at one! Kildall has exhibited at one museum. So I guess Godwin does not see those musuems as having merit? The duo are both notable if you go by Wikipedia’s terms.

But both had their accounts tagged as not notable and were up for deletion after the Wikipedia Art article was posted to Wikipedia. I think Godwin has too much confidence in the editing community of Wikipedia. Who is kept and deleted comes down to how many people you know and who can support the article and it is becoming more and more obvious because of projects like this.

See,

http://lists.wikimedia.org/pipermail/foundation-l/2009-April/051505.html

for Godwin’s silly response to the Wikipedia community.

Anonymous said...

The artists are frankly being asshats. The artists didn't understand Wikipedia (their project was something made up, which is obviously inappropriate), tried to insist that all the instant buzz they were creating justified their actions, and then left a website around to document the trolling.

Wikipedians contact the Wikimedia Foundation and say "hey, couldn't this website be confused for a Wikimedia project by outsiders?", so the WMF goes in, sends an email with their legal concerns (NOT direct threats), and then the artists say "OMG THEY'RE SUING US"... no, no one's been sued yet. The WMF has to protect their trademark (or later violators can show that lapse to escape scot-free), and the WMF is satisfied with the disclaimer that the artists put up.

Let me ask you: What has the WMF done wrong? They haven't sued anyone, they listened to their volunteer community, and they protected the trademark of the name of their flagship site. Honestly, people...

...these artists are the ones at fault. Would you appreciate an "interventionist" piece that, say, spattered red paint over something you were working on? No? What if they then say "Oh, I'm going to sell copies of that work because I splashed paint over it"? No, you'd protect your rights and get them to stop.

Anonymous said...

My name is Anonymous and I believe everything Mike Godwin tells me without reading actually documented evidence to the contrary. But please listen to me when I call other people asshats.

tom said...

Wikipedia blew it. Fire the lawyer(s) and apologize to the artists. And pay their lawyer fees. And apologize again. It is ludicrous to say "we're not threatening you" is not an implied threat.

FreeSpeechDefender said...

Had the 18 year old kid not deleted the initial article, in violation of Wikipedia's own policies, this would all be small fry.

It's a hoohar over nothing.

Let the artists make their art. Sheesh. What would it have hurt Wiki?