May 27, 2009

My _Guardian_ column on "Wikipedia Art" and trademark vs fair use

"Do commercial pressures outweigh artistic ideals at Wikipedia?"

"When do commercial pressures affect ideals? Testing that proposition was an unexpected result of the 'Wikipedia Art' project"

I didn't suggest a title for this one, and the title they used is fine by me. Someone might be pedantic and note it really should be "at the Wikimedia Foundation" rather than "at Wikipedia", but I'd say that's acceptable shorthand for a headline.

I emailed Jimmy Wales a long set of queries, in part asking him how he could reconcile his statement and accusations with the legal nastygrams sent by the Wikimedia Foundation lawyer. But he never replied to me.

Note to any Wikipedia-defenders: I know the "Wikipedia Art" page wasn't acceptable according to Wikipedia rules. My column is about the subsequent trademark-based threat, which had nothing to do with whether that Wikipedia Art page should have been kept or deleted.

Note to net-lawyers: I also know "fair use" is a phrase most frequently associated with copyright law. However, there really is trademark "fair use", similarly named, which applies in trademark law. That's what was being argued here - it's "fair use" to use a trademark to refer to the thing itself as a reference.

[For all columns, see the page Seth Finkelstein |]

By Seth Finkelstein | posted in press , wikipedia | on May 27, 2009 08:21 PM (Infothought permalink)
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Everyone has bills to pay, and commercial pressure is like gravity; it just is. Successful endeavors plan for this fact, and incorporate commercial concerns into their approach, rather than pretending that commerce is some sort of debased and debasing concern they can fly above.

Posted by: Tony Comstock at May 27, 2009 08:55 PM

Seth, it doesn't surprise me that Jimmy Wales didn't respond to you. In a recent e-mail to me, Wales said, "I think that I have proven to you that I respond well to direct inquiry and criticism..."

I then reminded him that, in response to a throw-away comment he once made about me ("Greg, you flatly lied"), I wrote him a detailed e-mail on December 24, 2007, providing factual evidence that showed (at least as far as I could imagine) I had never lied about what he thought I was lying about.

After a couple of days without response, I e-mailed him again, asking if he intended to reply. No response. A week later, another reminder, and then a reply that he was looking at other evidence and he would form his response soon. A month later, I sent another reminder to him (on Facebook), and he confirmed that he still owed me a response. I tried one more reminder during an e-mail exchange about an unrelated topic. Still, there was no response.

Finally, on December 18, 2008, Wales made a comment on Wikipedia that satisfied the most basic of my complaints, even though Wales STILL issued his decree with evasive language like, "To the extent that this case, the details of which I don't fully remember or understand at the moment..."

So, if taking more than 350 days to respond to a complaint objecting to an accusation that I "flatly lied" is "respond[ing] well to direct inquiry and criticism", then I think your series of questions for Jimbo may be answered sometime in mid-May 2010, Seth.

Posted by: Gregory Kohs at May 28, 2009 09:32 AM