From: "Jimmy Wales" <jwales(a)bomis.com>
Alex R. wrote:
That is,
I can't conceive of any real circumstances where we should be
concerned that a court will force us to publish the writings of
someone we don't want to publish.
But isn't this inconsistent with the NPOV principle? that would be
the opening that someone might use to go for the courts.
I can't imagine that they'd get very far with that argument. NPOV is
not a legal requirement for us, it's just something we do.
"Something we do" has legal consequences. Behavior, generally
speaking can easily have legal consequences, especially when it
is community behavior and standards are involved.
Wikimedia Foundation has a strong first amendment
right to publish
whatever it sees fit, NPOV or no.
Yes, but who is this Wikimedia Foundation? It is no longer the
property of one person but it is now a not for profit corporation.
If it were about a specific point of view, then yes it makes sense
that the board could decide what could and could not be published.
But adopting the NPOV policy it should be applied evenhandedly.
People contribute and each has equal rights to contribute. Someone
does not have more rights to contribute than someone else. So the
perimeter of this right is behaviour that is distructive. People who
are distructive are not operating within the NPOV after multiple warnings,
continue to do destructrive things to the goals of Wikipedia as
an project and thus, should be banned. I think that is pretty clear to me.
(see my point about Wikipedia being a trust below).
not different from Fox News striving to be
conservative, or the NYT
striving to be liberal, or Hustler striving to be pornographic. Each
organization retains the sole right to determine the content of it's
own publication, and to change policy about that at will.
Once again, none of these are not-for-profit corporations that
have all the policies of openness and inclusiveness that
Wikipedia has developed.
If one agrees
to an arbitration plan (remember it is a contract)
Why is it a contract? I say that it is not a contract any more than
me reflecting for weeks on end about whether or not to ban someone is
a contract. The person banned at the end of the arbitration (if
that's what happens) is just banned, whether they agreed to it or not.
Because they make a contribution in exchange for it being released
under the GFDL. That is why it is a contract. It is a bargained for
exchange. You log onto a web site and you accept the terms of use
of that site. That is an agreement. You get the right to view the site
and they get "eyeball time" that they can sell to third parties. That
is a contract. Here the contract is make a contribution and it will
be released to the public under certain terms.
It is not easy
in most jurisdictions to violate an arbitration clause.
However sometimes it is possible by being totally unfair, unresponsive
and unwiling to listen to some one put forward their perspective.
What bothers me about the thrust of what you're saying is that it
sounds like you believe that by instituting more formal procedures for
deciding this sort of thing, we are thereby changing things so that
people could at least conceivably have standing to complain that the
process is arbitrary, i.e. we are somehow allowing outselves to
foolishly give people some sort of legal right not to be treated
arbitrarily.
They can complain now. So why not make it clear to them that the
rules are that you cannot complain except under some very limited
circumstances. If you call it arbitration or the "NPOV Violatons
Committee" or " review of user status" it is all the same thing
legally. It does not have to be called arbitration for it to be
arbitration, nor does it need to be called mediation. It only needs
to be structured with minimal fairness; you are listening
to the person before locking them out. You can call it wikilove
or whatever. Whatever you want to call it. It is not giving them
a legal right, it is limiting it or making sure that it is not abusable.
That is what businesses do all the time, that is perfectly reasonable.
Leaving it formless and just up to scrutiny of anyone who decides
to scrutinize it is not putting it into a form that will give Wikimedia
the power to control user conduct. If you want to control user conduct
then set up a policy that addreses that and have some decision
making process. If you want to make it bullet proof give it
the semblance of fairness (or due process or fundamental
justice depending on your legal tradition) and then apply
it in an even handed way. The fact is that people already
beleive that there is some "rule" about banning. It is not
done to anyone arbitrarily, it is only done in a very rare
instance of behavior that is unacceptable. All institutions
have the right to limit such people and I have not suggested
that Wikipedia give this up. I am suggesting that Wikipedia
make it clear to all users so that they must comply or will
face a banning procedure that will be final, unappealable
and cannot be discussed in court because Wikipedia's
ill defined policies have opened the doors to them to discuss it
there at great expense to the projects of Wikimedia.
Resources are scarce, so let's conserve them.
I guess the problem I'm having with all of this is that we are not
talking about entering into formal arbitration agreements with people
like EofT. That's just asking for trouble, if you ask me.
What does "formal" mean? Contracts are formed constantly.
When you use a ISP, when you log onto a web site, when you
go to the store and buy a quart (or liter) of milk or a newspaper
you enter into a contract. It happens millions (if not billions) of
times every day. Yo set up a standard form to it and then everyone
follows it. They do not even think about it or know that there
is a contract. It only comes up when someone feels that the
contract is a problem (like getting sour milk or if you ISP keeps
bumping you off line). Otherwise everyone is bound by the
contract and must follow it. There is a contract, make it formal,
easily inforceable and to the community's benefit and that
disempowers those cranks who are being disruptive.
Perhaps we should drop the name 'arbitration' if that's what it
implies. If we want arbitration with someone to avoid a lawsuit,
that's a WHOLE OTHER THING.
This is not about avoiding lawsuits. This just about finding a way to
ban people from editing Wikipedia in a way that respects our internal
culture.
That is exactly what I have been taking about. Do it internally in a
way that respects the internal culture and one of the benefits is that
it also avoids lawsuits; nothing wrong with that added benefit, no?
You just say, "you have no right to appeal the decision of
of 'whoever that is in authority decides these things.' Their decisions
are final decisions of Wikimedia. If you do not like it start you own
online encyclopedia and do what you what there."
...
But I can't conceive of any sensible grounds for
user complaints of
any kind. We absolutely should make very clear that users have the
absolute minimum legal rights against the Wikimedia Foundation as
possible!
That is what I am proposing. Putting in an internal "dispute resolution
scheme" is only limiting such rights even more. They can't complain
to anyone except a limited number of people. Someone reviews the
complaint, listens to the user that might be banned, and unless they
have some persuasive argument not to be banned (which most likely
will not be the case in 99% of the cases when someone is engaging
in negative, unsocial behavior) then they will be banned. It is transparent
so other members see that the process is fair and do not quit Wikipedia
because they don't want to participate in a project where power is
abused arbitrarily and the goals of the project are progressed Wikipedia
is more stable and more valuable contributors continue to contribute.
I can't see any problem with this in terms of Wikimedia limiting any
of its "rights" to create an online encyclopedia.
> However, it does not say that anywhere (I have
been trying to get an
> approach adopted, but everyone seems to think that it is just an
> inordinate amount of legalism). The reality is that you have to protect
> your rights as when you let people collaborate they all own the
> intellectual property in common, why does the guy (or org.) that
> owns the server have any more right to decide what goes on the
> computer than anyone else once the floodgates have been opened?
Can you really imagine a court buying this argument?
I can't. I
can't really conceive of a case like this getting very far at all.
Courts do things that are unexpected; smart business people try to
prevent that from happening so that their is less intereference. Wikis
and the internet are still areas of law that could be interpreted in new
ways. We see that there are people trying to subvert Wikipedia
in any way they can. Limit their ability to do so while appearing
to be fair. That is what it is all about. The fact is that when one
gives their contribution to wikipedia they still own the copyright,
Wikipedia is only getting a GFDL license. That opens the door
to a lot of questions. Is Wikipedia a trust that all contributors
have contributed to and those who maintain Wikipedia now
have a fiduciary duty to all those contributors? I think this is
a valid question. If there is a fiduciary duty to all contributors
then, yes the courts may try to exert a lot of scrutiny over
how Wikimedia deals with those contributions in a fair way.
Let us make it clear what is going on so that no one can bog
us down with lots of legal issues because of the evolutionary
nature of a wikis without some minimal amount of policy it
will just self destruct.
Having an ironclad arbitration scheme and an
licencing scheme
that deals with issues that are not covered by the GFDL will
protect Wikipedia more, not less.
Well, I agree with that! I think we should do whatever we need to do,
with legalistic formalism and all the bells and whistles to make sure
that if some crank does try to take us to court to get us to let them
edit the site willy-nilly that we can just point to Exhibit A
(whatever that might be) and the Judge will say "Oh, o.k., well this
whole thing is frivolous, good day!"
Leaving it to the hope that
some judge will just say, "you can do whatever you want" rather
than getting people to acknowledge that from the moment they
log on does not seem like a really swift way to solve the issue.
Well, I totally agree with that.
I think we are really on the same page, just maybe forget to call it
arbitration call it something that fits in with the culture, and make
it simple, straightforward and something that anyone who logs
on can understand. It may be long, but there are a lot of issues
now that Wikipedia is a community.
Alex756