Wikimedia Foundation Legal department/Wikimedia Server Location and Free Knowledge
- Published by Wikimedia Foundation staff in February 2014, with an update in March
There has been some community discussion about the possibility of setting up alternative servers abroad for Wikimedia Commons in the interest of operating under copyright laws that may be more lenient than U.S. law. But moving servers abroad would likely not avoid U.S. copyright law. Instead, it could subject all Wikimedia projects to both U.S. law and the laws of the countries where those servers would be located. Even if the relocation were legally feasible, dispersing servers among different jurisdictions would only fragment the Wikimedia projects and ultimately compromise the objective to disseminate educational content globally.
While Commons is a truly international project, it currently benefits from the strong free speech protections of U.S. laws. CDA Section 230 and DMCA Section 512 shield websites that are based in the U.S. from obligations to monitor for infringing content and empowers them to push back against overreaching takedown requests. The SPEECH Act further protects websites by allowing U.S. courts to refuse to recognize foreign defamation judgments made under laws that provide less speech protection. These laws are often credited for the flourishing of peer production platforms in the U.S. They allow WMF to defer to community decisions until we get a valid DMCA takedown notice with full information to make a determination with respect to particular material. We generally view any restrictions on dissemination of educational content with a healthy skepticism. But moving Wikimedia Commons servers abroad could cripple our ability to fight takedown requests. In fact, websites that have set up servers and offices abroad have recently faced court orders to actively monitor for and take down content.
While there is good reason to select U.S. law to safeguard the wealth of information available on the Wikimedia projects, at the core of this discussion is a community policy of Wikimedia Commons. The community policy only accepts content that is freely licensed or in the public domain both in the U.S. and the source country. Given the application of U.S. law, Commons volunteers now face a difficult task in figuring out whether content on Commons has been taken out of the public domain as a result of the URAA. While we can't provide legal advice to community members, we have identified some relevant factors to consider. We have also proposed a Wikimania talk on the URAA and other copyright issues. But most importantly, as we stated last year, very few works on Commons are likely to be affected due to the various requirements of this statute. Indeed, to date, we have not received a single takedown notice under the URAA. A valid notice would provide us with the facts necessary to make a determination under the URAA. It requires information that may not be available to a Commons volunteer trying to make a decision without a takedown notice. So WMF does not see a reason to delete content simply because of general concern about the URAA. If we receive a valid takedown notice or get actual knowledge of infringement, we will do a full legal analysis of the work based on all the relevant information that is presented in that notice and vigorously resist any invalid notices.
- If we were to be forced to take down content, we could put together a special template for the page that previously hosted a work taken out of the public domain. The template would raise awareness by explaining how developments in copyright law have forced these works to be removed from Commons. It could also provide a link to relevant organizations, including some of our movement partners, that work to challenge overreaching copyright laws. These templates would allow us to gather metrics on takedowns and better understand the extent to which these copyright laws affect content on Commons. However, at this point, we don't expect those numbers to be high for the URAA specifically.