First up, a disclosure: back in college, Nathaniel Stern, one of the main characters in this post, was a very close friend of mine -- someone I hung out with a lot. After college, though, he and I mostly lost touch -- other than a random email or Facebook message back and forth. The last time I heard from him, in fact (and the first time I'd heard from him in at least two years), was when he sent out an email alerting me to the fact that he (along with one other artist) had launched a project called WikipediaArt. The idea was to create an art project on Wikipedia
, but which stayed within Wikipedia's rules. Nat's become a pretty well-known artist over the years, often experimenting in new media art, and the project itself struck me as quite interesting, though I doubted it was even remotely possible, given the way Wikipedia works. You knew that it would get deleted. However, I never expected the folks behind Wikimedia to go legal on them.
But, that's what's happened.
Both the EFF and Paul Levy (who has agreed to represent Wikipedia Art) have alerted us to the news that Wikipedia is demanding the artists hand over their domain
by threatening legal action. As the EFF and Levy point out, this is a rather surprising move by the Wikipedia foundation, who should know better than to make a bogus demand on a URL just because it includes Wikipedia's name in it:
Wikipedia should know better. There is no trademark or cybersquatting issue here. First, the site is entirely noncommercial, which puts it beyond the reach of U.S. trademark law. Moreover, even if U.S. trademark laws somehow reached this noncommercial activity, the artists' use of the mark is an obvious fair use. Wikipedia Art uses the "Wikipedia" mark to refer to the project: a critical comment on Wikipedia and creativity. The disputed site describes the project, provides links to media coverage of the project, and so on. It does not use any more of the Wikipedia mark than need be; for example, it doesn't even use the Wikipedia logo. Simply put, the site does not purport to be, nor does it look anything like, Wikipedia and the artists have done nothing to suggest Wikipedia endorses their work. Finally, the creators are engaging in precisely the kind of critical speech sheltered by the First Amendment.
While the EFF does note how odd it is for Wikipedia to be taking these actions, it leaves out the fact that Wikipedia is represented by Mike Godwin, (of Godwin's Law fame), who was also the first EFF in-house lawyer and absolutely should
know better than this. Hopefully Godwin and Wikipedia come to their senses, apologize and back down.