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. If we
wanted to abandon it tomorrow, we could. Whether or not a particular
ban conflicts with NPOV is an interesting one, but it strikes me as
highly difficult for someone to come up with an argument that isn't
risible that we have any obligations at all in that area.
Wikimedia Foundation has a strong first amendment right to publish
whatever it sees fit, NPOV or no. The fact that we strive for NPOV is
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.
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.
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.
I'd like to avoid that, obviously!
Does this mean complex rules of procedure? No. Does it
mean doing
anything more than having three more or less impartial individuals
review all the submissions of the person who is being removed?
No, not really. It is a way to protect Wikipedia, not to expose it to
more problems. This is why arbritration is often adopted by savvy
corporations that operate across international boundaries. It is a less
expensive and expeditious way to resolve issues rather than have
them drag through the courts for a long period of time with no
resolution and hey, you can even do it in house without appeal
to some outside arbitration board (as long as the arbitrators are
somewhat impartial going into the decision making process).
Most courts do not want to overturn arbitration decisions they
want to confirm them and clear the court docket.
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.
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.
We have the
legal right to be as stupid and arbitrary and unfair with
our procedures as we like. (Of course we shouldn't do that!)
Who is the we? If Wikimedia Foundation is a membership organization
then no, that is not true. Even if it is not a membership organization
the Attorney General of any state where Wikimedia solicits will have
some jurisdiction to deal with user complaints. Unfortunately Not for
profit corporations are subject to the jurisdictions of the courts regarding
their decision making processes so I cannot agree with the above
statement. Having said that one can take steps to limit the outside
interference that someone may try to impute to the organization by
being clear how limited such rights might be.
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!
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.
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.
--Jmibo