[WikiEN-l] Wikiquette "committee"

Tue Oct 28 23:01:16 UTC 2003

 From: "Jimmy Wales" <jwales at bomis.com>
To: "Alex T." <alex756 at nyc.rr.com>; "English Wikipedia"
<wikien-l at Wikipedia.org>

> A basic principle is that the Wikimedia Foundation owns the servers,
> is a private organization creating a private publication, accepting no
> goverment funds and with no other contractural encumberances of the
> sort, and can therefore admit or reject editors and authors more or
> less at whim.  I can't really see any valid grounds for any claim to
> the contrary.

Yes, but once you admit people and create all kinds of policies then
those individuals have reasonable expectations. Arbitrary power is
frowned upon but courts.  If you want to keep it arbitrary, then make
sure that it is all kept private by taking away the right to go to the
courts and let people know that it is such a private organization
so that they cannot get confused and run to the courts when they
should have resolved their differences within the Wikimedia realm.

> 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. A legal
decision reviewing what NPOV would be fascinating reading, but
do we really need this? Arbitration would be a much easiier safer
way to resolve such disputes without open the door to litigation.

> My concern here is that people will be so intimidated by the notion
> that if we don't do arbitration just right, according to some complex
> legal rules, a judge is likely to overturn it and require us to
> reinstate someone.  It's pretty easy to make sure that doesn't happen.

Doing it right is really pretty simple (but beleive me clients can screw
up even  the simple rules that are associated with making arbitration
binding and unappealable). If one agrees to an arbitration plan (remember
it is a contract) it is to keep matters out of the courts. Only if the
arbitration
scheme is violated, in some very fundamental way that allows one to
appeal to the courts. What is the violation of an arbitration scheme?
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.

In most cases (probably 95%) just listening will not change anything,
but it says to the courts, hey, we believe in due process, we are not
just crazy pirates who want to control the world (but we are crazy
corporate pirates who have figured out how to control the world).

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.

> 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.

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?
The argument is that short of shutting down the server there
is some expectation of fairness in the matrix of obligations that
is created through various Wikipedia policies. Wikipedia is
not a tabla rasa anymore.

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. 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.
Everyone, generally speaking, is subjected to the jurisdiction
of the courts unless they opt out of it through some arbitration
scheme (generally called a contract). After all the GFDL is just
a free copyright/left  license, it does not deal with all the implied
wiki issues that are unique to a collaborative wiki project. These
are contractual and association contract matters that will either
be figured out later by a judge or by the drafting of an solid
user submission standards or terms and conditions now.

Unffortunately we live in a country where there are rules and
procedures even if they are not accurately articulated by
an organization. That is why so many organizations create
policies, manuals and other documents that they apply in
a more or less reasonably fair handed manner to everyone
in the organization.

Alex756