Wikimedia Foundation/Legal/URAA Statement

As has been discussed extensively within the Wikimedia community, the US Supreme Court’s ruling in Golan v. Holder upheld the constitutionality of the law implementing the URAA. The practical effect of the URAA was the removal of many non-US works from the public domain and the placement of these works back under copyright protection - even if they were freely available in their country of origin. As a result, the Wikimedia Foundation now has files hosted on its servers that may have reacquired copyright protection.

Members of the Wikimedia community, understandably upset and frustrated by this law, have proposed removing the affected works from Commons and forking them to third-party servers outside of the US. Unfortunately, these plans would violate Wikimedia Foundation policy and US law.

Legal jurisdiction over internet properties is sometimes a complicated issue, but it is clear that US law applies to Wikimedia projects. The Wikimedia Foundation is incorporated in Florida and headquartered in California, and the servers that host all Wikimedia projects are located in Virginia and Florida. The location of the servers, incorporation, and headquarters are just three of many factors that establish US jurisdiction. Accordingly, even if all Wikimedia servers were moved outside of the US, and controlled by non-US organizations, the projects would still be subject to US law because of the Wikimedia Foundation’s legal and physical presence. If infringing content is linked to or embedded in Wikimedia projects, then the Foundation may still be subject to liability for such use - either as a direct or contributory infringer.

Even if it were feasible to switch out the Wikimedia Foundation’s obligations under US laws for those of another country’s, it would likely create more issues than it solves. There are specific advantages to US law that do not exist anywhere else in the world. For example, the First Amendment of the US Constitution provides strong protection for Wikimedia projects, which would not necessarily be present elsewhere (as noted by Jimmy Wales during the discussion about SOPA). Further, as has been made clear, any country’s copyright laws can suddenly change, especially when subjected to international pressure.

At the policy level, it is crucially important to the Wikimedia Foundation that all information used in its projects be provided under a free license or in the public domain, so that it can be shared freely and easily. This requirement is made explicit in the Foundation’s mission statement, and is further codified in the Terms of Use. The board has passed a resolution requiring that these standards be upheld by all Wikimedia projects, and may not be circumvented or eroded. As such, removing the potentially affected images from Commons and placing them on a local project would not be in accordance with current Wikimedia policies.

Wikimedia policies could be changed, of course. Even now, limited exemptions to Wikimedia’s copyright policies can be made under an Exemption Doctrine Policy (“EDP”). However, these exemptions are limited to uses that are permitted under US law, such as fair-use of copyrighted works (which could include works that have reacquired protection under the URAA). Stated differently, the EDP can loosen Wikimedia policies that are stricter than US law, but it cannot be used to circumvent the law itself. Because the law is the limiting factor with regards to hosting works with restored copyright, the EDP cannot provide a solution. However, as noted below, Wikimedia projects do not need an exemption under the EDP to continue hosting affected works that have not been subject to take-down notices.

Guidance

Ultimately, all Wikimedia projects are required to comply with the recent changes to US copyright law, but it remains unclear how these changes will affect individual works. The community should evaluate each potentially affected work using the guidelines issued by the Legal and Community Advocacy Department, as well as the language of the statute itself, and remove works that are clearly infringing. However, if a work’s status remains ambiguous after evaluation under the guidelines, it may be premature to delete the work prior to receiving a formal take-down notice, because these notices often contain information that is crucial to the determination of copyright status. Due to the complexity of the URAA, it is likely that only a small number of the potentially affected works will be subject to such notices. These guidelines differ from the more proactive systems currently used by the community for other copyright violations, but the complexity and fact-intensive nature of the URAA analysis makes a more active approach imprudent.

This approach does not offer a conclusive, swift, or triumphant solution to the issues presented by the URAA, but it is a balanced response to the competing goals of meeting legal obligations and preserving works that are in the public domain.

New proposals for solutions to this issue are welcome. However, US laws will apply to all Wikimedia projects and files, regardless of where the files are used, uploaded, or stored.