----- Original Message -----
From: "Tomos at Wikipedia" <wiki_tomos(a)hotmail.com>
Regarding Toby's point that DMCA protects the
project - I am not very sure
about the implication of that to admins living elsewhere. There is a
japanese law defining legal responsibilities of BBS admins, etc. The law
seems to hold admins responsible if they know that illegal contents
(defamation, obscenity, copyright violation, etc.) are there, and they do
not delete illegal contents in a timely manner. And the fact that admins
are
just volunteers do not seem to free from liability -
there are cases where
volunteer BBS admins are found to be guilty in the court (that was a
defamation case).
I you certain that you would be considered an
"administrator" under the
Japanese law; the law here that protects Internet Service Providers (but
not Internet Content Providers) 42 USC 230(c)(1) has recently been defined
by the Federal appellate court that covers the Wikipedia server.
http://caselaw.lp.findlaw.com/data2/circs/9th/0255658p.pdf
this case has become known as the Star Trek actress case.
Granted this is not a BBS case, but is a wiki more like a BBS site or more
like a dating site, I would vote for the dating site, BBS administrators
really
do review content before it is posted. Anyway, what is the Japanese
definition
of removing it in a timely manner? Who gives notice under Japanese law?
If you get a letter and remove it right away, that should be all right. That
is what all major service providers in the US do. Is Japan really different
in this regard?
The location of server is also said to be irrelevant
at least in certain
cases that I looked at, when the contents are there mainly for japanese
users.
Once again; the point is, who is responsible; you and I are volunteers.
Certainly
there is a sense of community here, that is one of the things that is
appealing
about Wikipedia, but WE are not Wikipedia. It is really a unique and
amorphous
concept. The service provider is Boomis, maybe they would have to be sued,
not you or I, no matter what our status (and now Wikimedia now might also
protect
Boomis and Jimbo too). It is true that you may get sued for what you do on
Wikipedia, but you would almost be required to make Boomis and Wikimedia
parties to your lawsuit and argue that as a community we are trying to
comply
with any laws that apply to us. (actually I have never saw a community
that was so vigilant and concerned about these issues as Wikipedia).
I can imagine a situation in which someone may have posted inflamatory
material
on a BBS and then refused to take it off citing the US First Amendment here,
but if it is derogatory and it is removed that would just prevent the victim
from
suing the BBS and its volunteers.
Maybe this is a reason that there should be an affirmation with a click box
like
the image upload page that not only states that the text being submitted is
not
in violation of copyright law but it is also not defamatory against any
person nor
a violation of that person's privacy rights in the country of origin and
that the person submitting the material indemnifies Wikipedia against any
defamation damages, especially internationally if the poster is from a
foreign
country.
Now, my knowledge about these laws and issues of
international
jurisdiction
are so limited that I need more advice than stating my
opinion here, but
if
I have to choose now, I would not bet on the
possibility that DMCA
protects
all admins at Japanese wikipedia regarding copyright
violations.
You probably could not get any lawyer to give you an opinion in this regard,
either in US law or Japanese law these are new issues and the law is in a
state
of evolution; even appelate decisions get modified or overturned.
I must state that while IAAL in the US, I really do not know much about
the developments in Japanese internet copyright and privacy law issues. All
I
can say is that my knowledge of privacy law (that has more to do with
defamation
and the like) is that civil law countries like Japan have much more
stringent rules
on this matter. If you can you point me to a copy of the Japanese Civil Code
that has
been translated into English I''ll write something general on [[publicity
rights]] about
the status of publicity and privacy rights in Japanese law; and you are
right, it has
nothiing to do with the location of the server. The delictual responsibility
under
the law of obligations, like the law of torts, applies where the defamation
occurs,
not where it is orignally published (thus the defamation may not happen in
the US,
only in Japan, there is still defamation in Japan evn if it is on a server
here in the
US, this is different than copyright law, which is related to the law of the
place
of publication).
The one thing I would add is that it is not you or I who post the infringing
material.
That is the person who is the cause of the defamation, not Wikipedia. As
Wikipedia
is an wiki that is open to anyone, anyone can post defamatory materials, we
cannot
control that. We can take _reasonable_ steps to remove it, and that is a
good thing, but
there is no guarantee that there will not be defamatory materials on
Wikipedia (we
may not even know that something is defamatory if it is between private
persons).
Wikipedia would have to point the finger at the poster, must as the judge
did in
the above Star Trek actress case (a good argument against anonymous posting,
or keeping an eye on anyone posting anonymously) to make the GFDL actually
mean something to third parties.
Maybe we really need a legal discussion list; this is getting too technical
for
the techies maybe. It might also focus issues and the discussion.
Alex756