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Wikipedia Threatens Artists For Fair Use
Hugh Pickens writes "Can a noncommercial website use the trademark of the entity it critiques in its domain name? Surprisingly, it appears that the usually open-minded folks at Wikipedia think not. The EFF reports that Scott Kildall and Nathaniel Stern have created a noncommercial website at Wikipediaart.org intended to comment on the nature of art and Wikipedia. Since 'Wikipedia' is a trademark owned by the Wikimedia Foundation, the Foundation has demanded that the artists give up the domain name peaceably or it will attempt to take it by legal force. 'Wikipedia should know better. There is no trademark or cybersquatting issue here,' writes the EFF's Corynne McSherry. 'Moreover, even if US trademark laws somehow reached this noncommercial activity, the artists' use of the mark is an obvious fair use.' It is hard to see what Wikipedia gains by litigating this matter, but easy to see how they lose."
Does anyone think he would get away with creating "CryslerArt.com" ?
WikipediaArt.org is not different.
echo '[q]sa[ln0=aln80~Psnlbx]16isb572CCB9AE9DB03273snlbxq' |dc
Am I the only one who laughed after reading this?
iI is hard to see what Wikipedia gains by litigating this matter but easy to see how they lose.
It is easy to see how they lose if they don't defend it also.
... now imagine I use that same domain to host a mirror of Wikipedia.org and push to steal their market share. I advertise and insert tiny little advertisements and I am commercial. And suddenly the good folks at Wikipedia are out of luck. Wouldn't you want them to be able to protect that which they've established?
Ok, not to defend them but just to get you thinking about their perspective, they are attempting to protect their name. Not profits or anything really evil, just their name.
What would you say if I wrote a mischievous program and hosted it at iwikipedia.org? Wouldn't you want them to be able to go after me and shut me down?
Ok, so that's an extreme case
So for malicious intent or even just to protect what they've created, I think they should be able to sue wikipediaart.org but I would hope they could just ask them to change the name to wikiartrights.org or artonwikis.org?
They probably would qualify for fair use if the site wasn't a wikimedia site. In this case, Wikipedia is concerned about people misunderstanding that the site is hosted and part of the wikipedia suite (or commons or whatever they call it). I think they would have no problem with the name if it had a different layout/format or if the name was different and it looked just like that. I don't know how this qualifies as fair use and Wikipedia may have a point in their fear that people would misunderstand the site.
My work here is dung.
Okay. it looks like Wikipedia. The name is similar to Wikipedia. It's not obvious that it's criticism. Even the content appears to be more transformative than critical.
No problem with what they're doing but make it more obvious that this isn't part of Wikipedia.
The term 'fair use' refers to a doctrine of defense against copyright infringement, not trademark infringement. And while the courts have routinely said that names like "walmartsucks" and "dontbuyverizon" are clearly not going to create confusion in the marketplace, a name like "wikipediaart" just does not seem clear-- is it associated or not? The design of the front page may or may not help the defense on that question.
[
Quoth Wikipedia itself:
A trademark typically becomes "genericized" when the products or services with which it is associated have acquired substantial market dominance or mind share. The term is legally significant in that unless a company works sufficiently to prevent such broad use of its trademark, its intellectual property rights in the trademark may be lost.
IANAL but, as I understand it, if Wikipedia are too free and easy about defending their trademark they won't have a leg to stand on when "Wikipedia Britannica" or "Microsoft Wikipedia" appear.
In a survey of 100 programmers, 111111 thought that duck-typing was a good idea.
It's better to have a judge rule "it's fair use" now than have a judge rule "you didn't defend your trademark" five years from now.
Anything can have "wiki" in its name, here that's different, Wikipedia only refers to one possible very specific thing. It's like the difference between "Encyclopaedia" and "Encyclopaedia Britannica"
You just got troll'd!
Why has the WMF gone after WikipediaArt but not Wikipedia Review or Wikipedia Watch? These two websites have been notorious for "outing" the real identities of editors and encouraging vote-stacking etc.
I don't think that's fair. A trademark, as we should all know, must be defended where it's use could be considered infringing. Use of the trademark to identify the service in question is perfectly acceptable, as in wikipediasucks.com. However, the cited domain, wikipediaart.org could quite easily be taken to be affiliated to Wikipedia, particularly since the site is running a Mediawiki install. I can't say I blame them for going after this, though I hope they don't overkill it.
[FUCK BETA]
When I saw the summary title, I immediately thought of paypalsucks.com. However, this is different. Nobody would think that paypalsucks.com was run by Paypal (*), and it is a commentary on paypal, so it is not infringing trademark. Wikipediaart.org sounds like something run by Wikipedia.
* Interestingly, googlesucks.com is owned by Google. They took the domain name to dampen criticism visibility. See: googlesux.com
Wikipediasucks.com is nothing one would confuse with Wikipedia.
Wikipediaart.com, however, sounds like an official Wikipedia for art.
Domains can also be trademarks. Them's the breaks. Get over it.
Not really. This is simply an action taken by the foundation to control any content related to their name, and trademark. We've seen this before, Mozilla vs. Debian was the latest "fight". It's important to understand the differences between brand and content. Whatever content I have associated to my brand is also my responsibility. If the content inside my brand is open for everybody to use, distribute, modify etc. it doesn't mean that one can distribute it in the name of my brand.
Let's say I write a short story, signed by me as the author, and give you a copy. I tell you that you're allowed to do whatever you want with the contents of this short story, be it reading, modifying, redistributing. Would it then be ok for you to change the contents, impose as me and redistribute it? No, of course not. So you see, these two don't go hand in hand. Even if I give you complete ownership over a piece of my property, it doesn't mean you can impose as me, be it with or without regards to this piece of property.
Now I have to ask, is this really so hard to understand? I'm asking because trademark issues are boring as hell and it seems that the only reason they're brought to attention is that people don't understand the simple difference mentioned above.
I am the lawn!
'Moreover, even if US trademark laws somehow reached this noncommercial activity, the artists' use of the mark is an obvious fair use.'
Wikipedia is not non-commercial, it's non-profit (from their pages: "a U.S. registered 501(c)(3) tax-deductible nonprofit charity").
Both non-profit and non-commercial entities can hold trade marks. Both can be held in violation of same.
Since they use the exact trade mark (again, from their pages: "Wikipedia® is a registered trademark of the Wikimedia Foundation, Inc.") rather than a generic derivative of it (ie. Wikiart) without obtaining permission, they are in violation. Specifically, by appearing as though they might be part of Wikipedia (disclaimers may follow but do not prevent prima facie assumption) Wikipedia's mark is subject to potential dilution. The law serves to protect against that specifically.
I blame Wikipediaart for the problem, even if it's due to ignorance. I doubt Wikipedia/Wikimedia wants to be seen doing this. However, they have to. Not to do so leaves them open to loss of protection should someone else do the same. Yes, it applies to trade mark as well as copyright. We've had the discussion before and references to the laws provided. A summary article with references can be found at http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm
Fair use does apply to trademark are well as copyright. However, it requires "non-imitative" use (http://www.publaw.com/fairusetrade.html ). The look and feel of Wikipediaart is such that it could be dropped whole into Wikipedia and look like it belongs. It is far too imitative. Furthermore, the use of material previously on Wikipedia can lead to "confusion", the point other than "dilution" that the protection exists for.
I'm disappointed in the EFF attorney. Assertions are being tossed about that are clearly contradicted by the law. I hope the organization doesn't hold the same opinions.
"I may be synthetic, but I'm not stupid." -- Bishop 341-B
(And don't try the "but they fixed the Pokemon problem" on me - that's another travesty in and of itself, the supposedly "wholly independent for-profit Wikia" that just happens to share about 3/4 of its board with the non-profit WMF, that rents its office space from WMF - at substantially below market rates, and shares developers. The same Wikia that gets 'preferred partner' status on WP, and where all those articles were shunted without real discussion by anyone other than those who share roles at both WMF/WP and Wikia, a handy, convenient jump start for Jimbo's ailing and failing money-maker).