- For whom are these policies?
- These policies are for the Office of the General Counsel at the Wikimedia Foundation, but we understand that many of the addressed issues may be of interest to the Community. For that reason, we are sharing these policies with the Community.
- Is this the final version?
- Yes and No. These policies are now in final form. That said, we expect the policy to represent a living document that we will amend, correct, and update as we address a variety of legal issues over time. Some good ideas in the discussion page will require further reflection and may be included in the policy at a later date.
- Why are you writing these policies now?
- We have developed a number of internal practices. We feel it is now appropriate to write those practices down to ensure institutional knowledge and to serve as a foundation upon which we can develop our best practices.
- What kind of topics are addressed in the policies?
- There is a wide range of topics that are addressed in the policies, including: applicable law, responsibility for edits, DMCA takedowns, trade secrets, child pornography, fair use, harassment, subpoenas, and trademark licensing.
- Are these policies binding?
- No. Since they are only staff policies, the Office of the General Counsel reserves that right to deviate from the policies depending on the circumstances, including legal developments. The policies do not constitute a contract or other type of commitment by the Wikimedia Foundation.
These policies are established by and for the Office of the General Counsel to assist in ensuring consistency in addressing internal and external issues that relate to specific legal questions. This is intended as a living document and will be updated as needed based on the experiences and needs of the Office.
If you have any questions about the implementation of these policies, please contact the Office of the General Counsel.
Rev. Date: Feb 9, 2012
Notice: This document does not constitute legal advice. It is merely intended to document certain procedures and processes relevant to the Office of the General Counsel. These policies are subject to change without notice and should not be considered a binding agreement or contract. Any exception made to these policies should does not constitute binding precedent for future decisions.
As a general rule, both the laws of Florida (where the Wikimedia Foundation was incorporated) and the laws of California (where its headquarters is located) should be examined when determining questions of legal compliance. Other state laws may apply, but that assessment requires a case-by-case legal determination by the Office of the General Counsel.
Internationally, other countries' laws could be relevant, but that determination also requires a case-by-case legal analysis.
As a general rule, the Office of the General Counsel should advise that editors who do not comply with their local laws do so at their own risk. See Responsibility for Edits.
Our mission is to “empower and engage people around the world to collect and develop educational content under a free license or in the public domain, and to disseminate it effectively and globally.” Although the Wikimedia Foundation does not encourage violation of any laws, we should view any legal restriction on content that prevents this mission with healthy skepticism.
In its discretion, the Community has, at times, made reference to certain laws as being relevant to their Projects as a matter of policy. See, e.g., http://commons.wikimedia.org/wiki/Licensing#Country-specific_laws (“Generally, the policy applied on Commons is to only allow images that can be used in all (or at least most) countries.”)(“The safest way to apply international copyright law is to consider the laws of all the relevant jurisdictions and then use the most restrictive combination of laws to determine whether something is copyrighted or not.”).
Rules on choice of law that are established as a matter of policy by the editorial community of a particular Project generally should be respected. Such rules however may lead to adoption of more restrictive policies than are required by international law principles. In short, these rules represent important editorial decisions on how to manage a Project but may not reflect the state of the law as applied in courts. The Office of the General Counsel therefore retains the discretion, as needed, to take a different approach in its defense of the Wikimedia Foundation.
In all cases, Projects should follow at least United States law as a minimum restrictive requirement. If the Community adopts less restrictive policies that fail to comply with United States law, the Wikimedia Foundation should advocate change to those policies to comply with United States law. In short, no policy may supersede the restrictions of United States law.
Example: The Italian Wikipedia includes a policy that purports to apply only Italian law (without regard to U.S. law) on issues of trademark. If the Italian law is more protective of trademarks than U.S. law, the Wikimedia Foundation will not intervene. However, if a relevant aspect of Italian law is less protective of trademarks than U.S. law, the Wikimedia Foundation may request that the policy be rendered compliant with U.S. law.
Responsibility for Edits and Contributions
An editor is legally responsible for his or her edits and contributions on Wikimedia Projects. The Projects are only hosting venues: the Wikimedia Foundation generally does not edit, contribute to, or monitor the content on the site. For that reason, the Wikimedia Foundation is not responsible for the edits or contributions of the editors. See 47 U.S.C. 230
Editors should be advised to exercise caution and avoid contributing any content that may result in criminal or civil liability, including infringing material, defamatory statements, and privacy violations.
The Wikimedia Foundation strongly supports free speech throughout the world. The Wikimedia Foundation accordingly does not agree with many countries' restrictive laws on content. That said, local courts may try to impose local norms. For that reason, the Wikimedia Foundation should advise editors and administrators who do not comply with their local laws that they do so at their own risk.
Example: An editor lives in Iran, where the local laws are more restrictive of political content than U.S. laws. Any edits on political content by the editor are at his or her own risk, even though the Foundation may disagree with the underlying laws.
Defense of Contributors
The work of our editors, photographers, and other contributors is extremely appreciated by the Wikimedia Foundation and the community, and fortunately the vast majority of contributions occur without incident, legal or otherwise. On rare occasion, a party may threaten litigation or actually file suit. Often lawsuits are without merit but must still be defended; contributions to a Project that appear to be constructive and within Project policy may still place the contributor at legal risk.
As a general rule, editors, photographers, and other contributors are responsible for their own edits and contributions, and, for that reason, as a general matter, they are responsible for their own defense where a legal action related to their edits or contributions may arise. Contributors should be aware that litigation is a possibility, and they should avoid placing themselves in situations beyond their individual tolerance for risk.
The Wikimedia Foundation does not routinely offer financial support to editors, photographers, or other contributors who find themselves in litigation. In certain unusual cases, the Foundation, in its discretion, may consider helping to find financing to pay for a legal defense or to assist in locating pro bono counsel when a contributor has been named as a defendant in a legal action. Such an undertaking may be possible in cases that raise significant issues relating to free speech and that advance the mission "to empower and engage people around the world to collect and develop educational content under a free license or in the public domain, and to disseminate it effectively and globally." WMF would give consideration, for example, to requests involving issues that:
- Raise significant freedom of expression questions that affect the Project's ability to be a neutral source of information, such as true and verifiable statements that are censored under local law (e.g., foreign laws that prohibit truthful information unfavorable to the government);
- Would expand significantly the breadth of content that would fall under the public domain (e.g., art in public domain); or
- Would reinforce the enforceability of the Creative Commons and similar free-content licenses (e.g., that Creative Commons license is valid).
If you are a contributor facing serious legal threats or action, you should act quickly in retaining a lawyer to protect all your rights. If you think your case fits the criteria listed above, please feel free to contact legal wikimedia.org. If you are a user with special user rights (such as Checkuser) who is facing a legal threat due to an action taken within the line of your duties, there may be another program available to help. Contact legal wikimedia.org for more information.
Caveats: For legal ethical reasons, WMF cannot create an attorney-client or other confidential relationship with contributors, and if any financial or other support were provided it would not establish such a relationship. No one should rely on the possibility of financial or other support or take any action with the expectation of receiving such support. If there were any financial support, it would not include payment of any fines or damages. If any financial or other support were provided it would not create any agency, employee, contractor, or other legal relationship with WMF. If WMF provided any support, WMF would not necessarily be endorsing any activity undertaken by a contributor before or after receipt of support. WMF may change this policy at any time, for any reason, without notice. Any financial support, if given, would be subject to budget constraints.
In cases where the Wikimedia Foundation cannot offer or find financial or other support, editors, photographers, and other contributors may wish to consult legal agencies that provide legal defense at no or reduced cost.
In appropriate cases, the Wikimedia Foundation may support a contributor in non-financial ways, such as public statements of support.
Importantly, the Wikimedia Foundation does not advise the Community to ignore laws that are under challenge.
Example: The Wikimedia Foundation has decided to challenge a copyright law in Spain that affects whether certain art falls into the public domain. Users who are subject to Spanish law should continue to comply with that law while it remains legally valid. This is so even if the Wikimedia Foundation itself is challenging the law.
Office actions are official changes made on behalf of the Wikimedia Foundation by certain authorized members of the office. These are removals of questionable or illegal Project content following complaints. Office actions are performed so that the end result is a legal, policy-compliant article on the subject. For a full explanation of office actions, see: Office actions.
Office actions are extremely rare. Before an office action may be taken, the following requirements must be met:
- A formal complaint must be filed “off-wiki” (e.g., postal mail, email, telephone, or personal meetings).
- The complaint must relate to a violation of law that raises significant legal liability if an office action is not taken.
- Community efforts to delete the offensive material have been unsuccessful (or there is insufficient time for such efforts).
Only certain individuals have authority to initiate an office action. See Office actions. As a general matter, all persons are invited to seek a recommendation from the Office of the General Counsel before proceeding with an office action.
No Editing. Importantly, when undertaking an office action, the authorized employee from the Wikimedia Foundation may only delete content (such as stubbing an article). Generally, that employee should not engage in adding new content or proactive editing of the content.
Specific office actions include the following:
1. DMCA Takedowns. The Office of the General Counsel (OGC) shall have the sole responsibility to authorize a takedown of content due to a DMCA takedown notice. (The Community however is always free to remove infringing content on its own accord.) Such a DMCA takedown may not be reverted.
Before a DMCA takedown notice will be recognized, the complaining copyright holder must substantially comply with all legal requirements of such a notice:
- A physical or electronic signature of a person authorized to act on behalf of the copyright owner or exclusive licensee.
- Identification of the copyrighted work claimed to be infringed. If a notice refers to multiple works posted at a single location, it is sufficient to include a representative list of works infringed at the site.
- Identification of the material claimed to be infringing together with “information reasonably sufficient to permit the service provider to locate the material.” The notification must also identify the reference or link to the material or activity claimed to be infringing and information “reasonably sufficient” to permit the service provider to locate the reference or link.
- Information “reasonably sufficient” to permit the service provider to contact the complaining party. Such information may include the complaining party's address, telephone or email address.
- A statement that the complaining party believes, in good faith, that the copyrighted material identified is being used in a manner that is not authorized by “the copyright owner, its agent, or the law.”
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
I. Ballon, E-Commerce & Internet Law, section 4.12[B] (from which the above is substantively quoted).
Upon takedown of the content, the Office of the General Counsel should promptly notify the user who had posted the content (through email or notice on the user page) that the content has been removed and that the user may file a counter-notification. That notice will link to a page summarizing DMCA takedown and counter-notice procedures. See, e.g., https://lumendatabase.org/topics/29 & https://wikimediafoundation.org/wiki/Category:DMCA (listing resources under DMCA subtitle). Unfortunately, a user cannot file a counter-notification anonymously.
Should the Wikimedia Foundation receive a counter-notification, the Office of the General Counsel should promptly provide the original complaining party with (1) a copy of any counter-notification and (2) a notice that the removed content will be replaced within ten (10) business days. This provides the original complaining party an opportunity to file suit to obtain an order restraining the infringing activity.
Without notice that a lawsuit has been filed, the Office of the General Counsel will authorize that the removed content be replaced within 10-14 business days following receipt of the counter-notification. Only the Office of the General Counsel may authorize the reposting of the removed content.
Any DMCA takedown should be replaced by a template explaining the action taken. The DMCA takedown notice should be posted on our site. See, e.g., Office actions. The post should include information on how to file a counter-notification, including a link for detailed information on that procedure. See, e.g., https://lumendatabase.org/topics/29 & Office actions (listing resources under DMCA subtitle).
All DMCA takedowns should be forwarded to https://lumendatabase.org.
Repeat Infringers. Pursuant to the DMCA, the Wikimedia Foundation will terminate, in appropriate circumstances, the accounts of repeat infringers.
The Wikimedia Foundation strongly encourages users to file counter-notifications when a DMCA takedown demand is invalid or improper. Successful counter-notifications will not be counted in any determination as to whether a user is a repeat offender.
Example: A user posts a photograph, and a rights-owner files a DMCA takedown notice. The user disagrees and files a counter-notification, and the rights-owner fails to challenge that counter-notification in court. The photograph will be reposted 10-14 days after receipt of the counter-notification. The DMCA takedown will not count against the user in determining repeat infringer status. (The Community, however, has the option to delete the photograph according to their Project policies since those policies may be more stringent than copyright laws.)
2. Knowledge of Copyright Infringement. Apart from the DMCA takedown procedure, the Office of the General Counsel should authorize deletion of content where there is (1) actual knowledge that the content is infringing copyright or (2) awareness of facts or circumstances from which copyright infringing activity is apparent. (17 U.S.C. 512(c)(1)(A)). Pursuant to the DMCA, the Wikimedia Foundation will terminate, in appropriate circumstances, the accounts of repeat infringers. The Community may also remove such infringing material from the Project sites.
3. Trade Secrets. If there is specific and credible knowledge that trade secrets, such as cracks and decryption keys, are on our site, the Office of General Counsel may take an office action and authorize prompt deletion of those secrets. Apart from an office action, the Community may also take down trade secrets as the Community deems appropriate. Notice of such takedowns is not necessary.
Under the Uniform Trade Secrets Act, a trade secret includes:
[I]nformation, including a formula, pattern, compilation, program, device, method, technique, or process, that ... derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
Under that Act, “misappropriation” includes “disclosure . . . of a trade secret of another without express or implied consent by a person who . . . before a material change of his position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.”
There must be reasonable efforts to keep the information secret before it may constitute a “trade secret.” One legal scholar noted, “the amount of time that a secret is made publicly available online and the location where it is posted should be considered in evaluating whether a disclosure has been made that destroys the trade secret. For example, a brief disclosure in an obscure location that in fact was not widely accessed should not be deemed to destroy the trade secret status of information.” I. Ballon, E-Commerce & Internet Law, Section 10.06. On the other hand, an alleged "trade secret" that has been widely published in multiple media may have lost its requisite secrecy.
In many cases, the verifiability policy may justify independently the deletion of the alleged trade secret because there is no support for it in a reliable published source. See, e.g., Wikipedia:Verifiability. On the other hand, removal generally would be inappropriate with respect to former confidences that are legitimately discussed in reliable, public sources as a matter of general interest.
Example: Without authorization, a user posts the specifications of an upcoming product from his company. There are two reasons why this contribution may be deleted: (1) it constitutes trade secrets; and (2) it is not verifiable (that is, there is no reliable, published source as a reference).
4. Trademark Infringement. If we receive notice of trademark infringement, the Office of the General Counsel may authorize removal of such infringement when the infringement is clear and apparent (like a clear-cut case of piracy) or when otherwise permitted by law. The Community also may review the infringement and determine whether removal is appropriate under applicable law. Notice of such a takedown is not necessary.
Example: A user includes a company logo on his user page that incorrectly proclaims that the company is associated with the user's business. The company contacts the Wikimedia Foundation and presents convincing evidence that the company logo is being misused without authorization. The Office of General Counsel may authorize removal of the company logo from the user page. The Community also may review and determine whether removal is appropriate.
5. Child Pornography. Child pornography must be removed from the site immediately. Generally speaking, child pornography constitutes a photograph or other visual image of a child engaged in sexually explicit conduct.
It is important to note that depictions such as drawings, cartoons, sculptures, or paintings that represent children in sexually explicit conduct may run afoul of certain obscenity statutes if the depictions lack certain cultural or social value. See 18 U.S.C. 1466A.
Relevant federal statutes on child pornography – with corresponding definitions -- may be found here:
State laws may also be applicable.
As soon as possible, as required by law, the Legal and Community Advocacy department should report any discovery of child pornography (as described above) to the National Center for Missing and Exploited Children (800-843-5678). See 18 U.S.C. 2258A Reports to other law enforcement agencies may be appropriate depending on the circumstances.
Community members who find child pornography on the site may delete and report it by email to legal-reports wikimedia.org. Community members are asked to notify Legal and Community Advocacy about any child pornography found on the site to ensure it is properly reported to the authorities.
Even when reporting, Community members are advised not to store or send images of child pornography through any means, including snail mail or email, unless pursuant to police instructions.
6. Threats. Our WMF staff manual (entitled On-Wiki Threat Protocol) should govern our actions vis-a-vis threats, such as suicide threats and threats of violence (e.g., bomb threats and threats of harm to third parties). This manual applies to both U.S. and international threats.
7. Biographies of Living Persons and Defamation. As a general matter, disputes regarding biographies of living persons or defamation should be resolved by the Community, including the Email Response Team (OTRS). See Wikipedia:Biographies of living persons (or equivalent policies in other Projects). An office action by the Wikimedia Foundation – which should be approved by the Office of the General Counsel -- may be appropriate if community actions have not been effective and legal considerations require such action.
If the defamation claim is the subject of a legal action, the Office of the General Counsel will review the case. In cases where a complainant's attorney expresses willingness to work with the Wikimedia Foundation, the Office of the General Counsel may request the Email Response Team (OTRS) to appoint a volunteer to work on improving the article in question.
Example: The legal counsel of the subject of a biography threatens a lawsuit unless certain content is removed. After talking to the Office of the General Counsel, the legal counsel expresses a willingness to work with a volunteer to correct the biography. The Office of General Counsel may request a member of the Email Response Team to appoint a volunteer to work on improving the article.
Many Wikimedia Projects include only material that is available under a free content license and do not allow for fair use, such as Wikimedia Commons. (See Commons:Fair use.) Other Projects have policies that are stricter than legal “fair use” in the United States. See, e.g., Wikipedia:Non-free content. Furthermore, a number of language sites may vary from their English counterpart Project and do not allow for “fair use” (like the Spanish or German language Wikipedias).
The legal determination of “fair use” is an extremely complicated analysis that depends on a wide variety of factors. As the U.S. Copyright Office has noted: “The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.” http://www.copyright.gov/fls/fl102.html Moreover, many countries do not recognize fair use or have much more narrow definitions.
The Wikimedia Foundation generally will not provide legal advice to users as to whether certain materials constitute fair use. To assist the user, however, the Wikimedia Foundation may refer inquiries to the appropriate policy relating to the Project in question. See, e.g., Wikipedia:Non-free content. Also, when fair use is relevant to the discussion, the Wikimedia Foundation may direct users to respected sites that provide background information on fair use in the United States. See, e.g., http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html ; http://w2.eff.org/IP/eff_fair_use_faq.php
Example: The Office of the General Counsel receives a request from a community member as to whether or not a photo on English Wikipedia constitutes “fair use.” The Office of the General Counsel should not offer specific legal advice on whether the use of the photograph is “fair use.” The decision is that of the community member, not the Office of the General Counsel. However, the Office of the General Counsel may refer the member to the relevant Project policy on Non-free content and to well regarded websites that discuss “fair use” (including those already linked on the Project policy).
If a user complains about harassment on any of the Projects, the user should be advised to contact an administrator. In appropriate cases, such as legal threats, threats of violence, or outing, Communities may create policies that provide for protective blocks by administrators without prior warnings. See, e.g., Wikipedia:Harassment & Wikipedia:No personal attacks.
In cases of serious harassment, involving, for example, credible threats of violence, users should contact their local police. The report usually may be made in the jurisdiction of the victim, perpetrator, or threat. The Wikimedia Foundation will fully cooperate in investigations involving harassment of users that include credible threats of violence. Users, however, must report the harassment to local police. (Our experience is that local police usually refuse to receive reports directly from the Wikimedia Foundation).
Any summons, complaint, contentious legal letter, or other legal document directed to the Wikimedia Foundation should be forwarded to the Office of the General Counsel immediately.
Example: A letter is delivered to the Community department threatening a lawsuit based on a user dispute with the Wikimedia Foundation. A copy of that letter should be forwarded to the Office of the General Counsel immediately.
As a general rule, the Wikimedia Foundation may not recognize a foreign subpoena or order. Foreign parties will be asked to obtain a U.S. equivalent before we recognize such a subpoena. See 28 U.S.C. 1782.
Exception: As a courtesy, the Wikimedia Foundation may recognize a foreign subpoena or order if the information sought is needed by police in an investigation that involves an immediate threat to life or limb. User information may be released without a subpoena “[w]here it is reasonably necessary to protect the rights, property or safety of the Wikimedia Foundation, its users or the public.”
Example: The Wikimedia Foundation receives a subpoena from London to disclose user information to support an ongoing civil lawsuit there. As a general rule, the Foundation may not recognize the foreign subpoena. The party should obtain a U.S. equivalent subpoena as allowed under 28 U.S.C. 1782.
Example: The Wikimedia Foundation receives an urgent phone call from the Australian police, indicating that the biography of a living local politician shows an assassination date two days later. As a courtesy, the Wikimedia Foundation may recognize a foreign subpoena asking for the identifying information of the user who posted the assassination date. The Wikimedia Foundation may also choose to disclose the information without a subpoena if “reasonably necessary to protect the . . . safety of the Wikimedia Foundation, its users or the public.”
Our trademark licensing must remain consistent with our mission “to empower and engage people around the world to collect and develop educational content under a free license or in the public domain, and to disseminate it effectively and globally.” As stated in our trademark policy, the Wikimedia Foundation has a need “to ensure that the Wikimedia Marks remain reliable indicators of free content . . . and source/origin.” http://wikimediafoundation.org/wiki/Trademark_Policy More detailed explanation of these values can be found here: http://wikimediafoundation.org/wiki/Values
In a nutshell, in deciding whether a trademark license is appropriate, we need to ensure that we are comfortable associating our brand with another party's reputation and their proposed specific uses. Relevant factors include:
- The likelihood that the license will increase the Wikimedia Foundation's access to a new segment of users who would benefit from open knowledge and free access to information;
- The likelihood that the license will increase the number of editors on the Wikimedia Projects;
- The means by which the licensing relationship furthers the Wikimedia Foundation's mission in general;
- The licensing party's position and reputation with respect to open knowledge and free access to information (cf. Project Gutenberg);
- The licensing party's position and reputation with respect to the free and open source movement in general, including the use of freely-licensed tools;
- The licensing party's reputation with respect to social responsibility in general; and
- The importance of ensuring that the Wikimedia Foundation stays free of influence in the way it operates.
Commercial uses of our brand are acceptable if relevant considerations support the license.
Non-exclusivity. To ensure world-wide, unrestricted, dissemination of knowledge, we do not enter into exclusive agreements on the use of our trademarks.
Examples: A local group wishes to print T-shirts with the Wikipedia puzzle globe as an effort to promote free content in society. The Wikimedia Foundation will evaluate the context of the use. The reputation of the group will also be a key factor. How the T-shirts would be distributed would be another consideration. If the distribution of the T-shirts would advance the mission and not harm the good reputation of the Wikimedia Foundation, licensing may be permitted.
- Chapters are established under the laws of their country, and therefore should comply with the local laws that govern organizations in that country. Such laws may include, for example, non-profit organization requirements.
- In rare instances, Wikimedia Foundation may engage in office actions as permitted by law. See, e.g., 47 U.S.C. 230(c)(2).
- Specifically, under federal law (18 U.S.C. §2256), child pornography is defined as any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where-- (A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; (B) such visual depiction is a digital image, computer image, or computer-generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or (C) such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.
- For example, among other things, California law makes it a felony to distribute or exhibit matter depicting a person under the age of 18 years personally engaging in or personally simulating sexual conduct, including (1) Sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex or between humans and animals; (2) Penetration of the vagina or rectum by any object; (3) Masturbation for the purpose of sexual stimulation of the viewer; (4) Sadomasochistic abuse for the purpose of sexual stimulation of the viewer; (5) Exhibition of the genitals or the pubic or rectal area of any person for the purpose of sexual stimulation of the viewer; and (6) Defecation or urination for the purpose of sexual stimulation of the viewer.