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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."
Load and aim at foot
They fitted George Orwell's coffin with rollers so he could turn over more easily years ago.
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.
Does anyone think he would get away with creating "CryslerArt.com" ?
I don't see why not. "ChryslerArt.com" might be a little more problematic.
Man oh man, does it get any better than this? I'm gonna go pop some corn...
With the full understanding that this is for a court to decide, the domain name in this case is too similar. Regardless of any one-line disclaimer about not being affiliated with Wikipedia, it still seems too much like it would be an art website operated by Wikipedia. If you accept that PETA.org should belong to the PETA that puts naked chicks in cages on the street and not the PETA that goes through a lot of barbecue sauce (which a lot of people don't) then you have to accept that this domain name is confusing. A domain like "wikipediasucks.com" would make it clear that it was commentary about wikipedia. A domain like "Wikipediaart" makes it look too much like art affiliated with Wikipedia. Your whole front page would have to be a disclaimer given the average human -- I could see easily misinterpreting the top sentence in the pre-coffee boost phase and deciding that they WERE affiliated.
"You're right," Fisheye says. "I should have set it on 'whip' or 'chop.'"
Something more in tune with the Slashdot world: http://www.microsoftsucks.org/, and also: http://applesucks.org/
All my liberal friends think I'm a conservative, all my conservative friends think I'm a liberal.
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.
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.
Yet the Wikipedia didn't bat an eyelash when Jimbo started Wikia using 'wiki' in the name. Double standard.
In case you didn't know, "wiki" is a word that wikipedia borrowed from elsewhere, i.e. "WikiWikiWeb", aka "WardsWiki", which is available at http://c2.com/cgi-bin/wiki.pl . So no, this isn't a double standard.
Besides, there are no rules against the same organisation using the same trademark in two different ways, so even if the word "wiki" was a Wikimedia invention, it wouldn't be a problem that they operated two different sites that had it in their names.
Yet the Wikipedia didn't bat an eyelash when Jimbo started Wikia using 'wiki' in the name. Double standard.
Wikipedia didn't invent the term "wiki".
http://michaelsmith.id.au
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.
Mozilla thinks the same way as Wikimedia and obviously disagrees with EFF.
From the official Mozilla/Firefox Trademark Policy
Domain Names
If you want to include all or part of a Mozilla trademark in a domain name, you have to receive written permission from Mozilla. People naturally associate domain names with organizations whose names sound similar. Almost any use of a Mozilla trademark in a domain name is likely to confuse consumers, thus running afoul of the overarching requirement that any use of a Mozilla trademark be non-confusing. If you would like to build a Mozilla, Firefox Internet browser or Thunderbird e-mail client promotional site for your region, we encourage you to join an existing official localization project.
Wikipedia seemed to be the ultimate spot on the Internet for free thought and the sharing of ideas.
I'd say the sharing of ideas doesn't seem like it has much to do with Wikipedia, it's just trying to explain what everything is for the uninformed. Sharing ideas is for places like YouTube, where people *do* share them...every idea that comes into their head, no matter how inane.
Honestly, after reading TFA, it seems like this is a Flying Spaghetti Monster or Church of the SubGenius kind of case. The whole thing exists to throw a problem into sharp relief...it's not an "Art Project" so much as a method of arguing, trying to rally support for an issue by calling their side of the arugument something normally protected, like Art or a Religion. I'm all for what they're arguing, but I really don't know why they act all surprised when someone calls their bluff or tries to dismiss the tactic.
Fair use is a term of art in trademark law as well.
Since this is about wikipedia: http://en.wikipedia.org/wiki/Fair_use_(U.S._trademark_law)
Or if you don't like wikipedia...
http://www.law.cornell.edu/uscode/15/1115.html
b(4) is the section that is referred to as "fair use" by the Supreme Court in rulings.
"ChryslerArt.com" might be a little more problematic.
Yeah, it's quite fraudulent to call anything by Chrysler "art".
Okay, okay, maybe the foresight in scamming pensioners...
Information theory is life. The rest is just the KL divergence.
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.
Disclaimer: I am a 1950s socialist and have debated and contributed towards Maxist theory.
You may be able to point to the Soviet Union not being open-minded. From the purging of Citizens to being denounced by the co-founder, you may be able to point to things they've done that seem really really controlling and closed minded.
But look at what they've done and accomplished. Look at how they've come under attack themselves for their ideals or having over 1/2 of the world's population blocked from you.
They have established a totally classless society. No inequality. They have had to balance quality with quantity. They have established rules that define what socialist. I would wager that in the past year they are more talked about than any other country in this publication. Their power of veto in the UN reflect this.
If you are criticizing them because they are not as free and open as the West, fine. But know that I have access to a free public health care, education, transport and many other systems, to use them as an invaluable resource. Would the USSR have been as successful if they had taken a more open and free stance? They walk a fine line between their control and community control and I think they've done a fine job with their success as evidence.
May the Maths Be with you!
First of all, to be clear, Wikipedia is not the same as the Wikimedia Foundation. The Foundation owns the trademark and the servers but has essentially nothing to do with the day-to-day operations of the English Wikipedia or any of the other Wikipedias or associated projects.
Much of what you have said is inaccurate or missing context. The primary reasons that Wikipedia looks like such a drama magnet is that a) there's a high degree of transparency so the normal internal jockeying and juvenile behavior is there for all to see b) many people have sincere ideas about what the project should do. People can legitimately and strongly disagree. Wikipedia does have some very serious problems, but one shouldn't overestimate them. The vast majority of editors get along just fine every day just plugging along. I suspect you'd find if you did a survey that even many admins aren't aware of the historical major scandals and drama sources such as the Essjay scandal (http://en.wikipedia.org/wiki/Essjay_controversy)
Now, in regard to deletionism, I'm a user who has been labeled as a "hyperinclusionist" on at least one occasion and I think you are being unfair. Deletionism has legitimate arguments behind it. First, having many articles makes it difficult to navigate. See for example http://en.wikipedia.org/wiki/John or http://en.wikipedia.org/wiki/Smith and then imagine how worse those pages would be if we included every little person. Second, Wikipedia is not intended as a free webhost. Those exist all over the internet. So even a die-hard inclusionist must agree that some inclusion criteria are necessary. Third, the more content we have (especially of obscure topics that few people care about or edit) the more potential for vandalism or insertion of libelous content which is really not good.
I don't have any strong opinion on the issue about the trademark in question (I haven't had time to look at the matter in great detail) but to connect this to alleged problems at Wikipedia is simply not helpful.
Probably because someone was trying to use Wikipedia as a free webhost for their art project...? Pages that don't have anything to do with Wikipedia's mission - which is creating an encyclopedia, full stop - regularly get deleted.
The page in question wasn't an encyclopedia article, it was a "conceptual art work composed on Wikipedia". Some artist(s) had a clever idea that used Wikipedia's resources, Wikipedia decided that they weren't in the business of creating art, the art project got the boot.
If you're looking for the relevant Wikipedia policy, try
Deletion policy
Criteria for speedy deletion
What Wikipedia is not
It ain't rocket science, and it doesn't need a conspiracy to explain. Since the operators of Wikipedia Art are running their own wiki using the same software, it's a tad disingenuous for them to 'play dumb' about where the page went.
Finally, it's not gone without a trace. Wikipedia 'administrators' (really more janitors than powerful functionaries) have access to most deleted pages, and anyone can see the entry in the page deletion log.
~Idarubicin
Read the answer by Mike Godwin (Gerneral Counsel of the Wikimedia Foundation) to reproaches by the EFF.
It's quite lengthy and technical, so allow me to summarize:
Using our trademarked term 'Art' in a non-Wikipedia web page such as yours [citation needed] inevitably tends to dilute and water down our historic trademark protections and liberties. Those who would sacrifice article quality for a little temporary respite from deletion are doomed to repeat it, poorly. Wikipedia is like a car, and taking the wheels off it to replace them with DRM'd ones that only work on a particular kind of road is like boiling a frog. Just consider what would happen if Hitler himself designed cars...
-- Ed Avis ed@membled.com
(turns out, it is indeed the same Mike Godwin of 'Law' fame.)
-- Ed Avis ed@membled.com
So in summary: the EFF accusations are complete BS. And although IANAL, having read the letters posted on the wikipediaart website, it looks to me as if he's right. The Wikipedia foundation has not "demanded that the artists give up the domain name peaceably" and has not threatened to "attempt to take it by legal force". So that's no story, then.
Quidnam Latine loqui modo coepi?
'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
Fair use deals with copyrights, this is a trademark.
Trademark law forces trademark holders to litigate at the slightest hint of dilution. If they don't do it, then they won't have standing to file suit later when it's more serious. Don't blame Wikipedia, it's how the law is written.
This sig has been temporarily disconnected or is no longer in service
Did you read Godwin's statement? Did you read the letters on the wikipediaart website? Did you even read the message to which you were replying? They're not litigating, they're not even threatening to litigate. One of the letters they've written to wikipediaart specifically complains about wikipediaart misrepresenting them as threatening to litigate.
Quidnam Latine loqui modo coepi?
Take, for instance, an article about a fiction novel or short story. The best reference about that, the book where it was first published, is cited in the references. How does that article lack references?
Wikipedia wants multiple sources, and it wants independent sources. That's what {{refimprove}} is for: improving references to increase an article's verifiability. A general encyclopedia wants to take an out-of-universe perspective when writing about fiction; this often means concentrating more on critical and commercial reaction than on plot points.
Or boxes complaining that in some way the article is not written in a style suited for an encyclopedia. Well, if you think so, do us a favor, stop complaining and *show* how it should be written.
Sometimes I'll rewrite a paragraph or two, but then I realize I don't have time to rewrite the rest, so I slap on {{ad}} or {{essay-like}} or something similar and save what I've already done.
Read the answer by Mike Godwin
Damn. You just Hitlered the debate!
Those who can make you believe absurdities can make you commit atrocities. - Voltaire
(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).