Some controversy stirred up earlier this week after the Electronic Frontier Foundation stepped in on behalf of the creators of Wikipediaart.org, a site dedicated to a Wikipedia-related art project. The EFF was responding to demands by a lawyer for the Wikimedia Foundation, the parent company of Wikipedia, that the artists turn over control of the domain.
Claims that the domain violated Wikimedia’s trademark and the ensuing legal back and forth have renewed the debate over fair use and free speech, and to an extent, what constitutes art. There’s even a bit of a debate over what constitutes “a threat.”
Wikipedia founder Jimmy Wales characterizes the project as “an alleged bit of performance art,” and the project creators, Scott Kildall and Nathaniel Stern, as “trolls” “dedicated to vandalizing Wikipedia as a publicity stunt.” [His full statement is available as an update to an earlier article, linked below.]
The project originally took place on the Wikipedia site itself, but was quickly deleted by Wikipedia editors. Though there was some debate over whether a collaborative art project had a place in an online encyclopedia, the final agreement was that the project—also thought to be critical of Wikipedia itself—was a form of vandalism.
After the entry was deleted, Kildal and Stern registered wikipediaart.org and moved the project there. For more background on the project itself, and a discussion of art and fair use, please read “Wikipedia Art Pushes the Elastic Boundaries of Fair Use,” from earlier in the week.
On March 23, Douglas Isenberg, representing Wikimedia, sent a letter to Kildall explaining Wikimedia’s ownership of the trademark WIKIPEDIA, the company’s obligation “to enforce its legal rights” and the company’s concern there may be some confusion about Kildall’s website’s affiliation with Wikipedia itself.
Isenberg says in the letter Wikimedia asked him to investigate whether Kildall was in violation of the Anticybersquatting Consumer Protection Act (ACPA), the US Federal Trademark Dilution Act, state and common law trademark and unfair competition statutes, and the Uniform Domain Dispute Resolution Policy (UDRP).
Afterward, Isenberg asks Kildall to transfer wikipediaart.org to Wikimedia, “cease using the Wikipedia trademark,” and that Wikimedia “reserves all rights and remedies of any kind or nature in connection with this matter.”
Wikipediaart.org has posted that letter, along with others, at the site, except for a series of correspondences from Mike Godwin, Wikimedia’s general counsel.
Although Isenberg’s letter sounded enough like a threat to Kildall to seek legal counsel, and his counsel seems to have agreed it sounded like a threat, and a lawyers from PublicCitizen and the EFF thought it sounded like a threat, both Isenberg in a later letter, and Wales himself, in a statement to Murdok, say it was not actually a threat.
“The reporting on the situation was widely in error, mostly due to the EFF’s erroneous blog posting,” said Wales. “There was never a legal threat, no action of any kind, and there is no intention to take action of any kind. We asked them politely to put up a legal notice distinguishing themselves from Wikipedia, and they did.
”A group of trolls managed to manufacture for the media a publicity stunt. It’s disappointing how easy it was for them to pull it off.”
A disclaimer distancing the project from Wikipedia is mentioned as already in existence in the letter posted at Wikipedia Art by James Martin, original counsel for Kildall, in his original response to Isenberg on April 3, along with expressed willingness to agree on a new one.
Though Godwin’s correspondences are not posted, Public Citizen’s Paul Levy’s letters are, the final one indicating Wikipedia Art would go to court first for declaratory judgment that use of the domain constitutes fair use. This, it appears, the last correspondence.
