First a disclaimer - I have no legal knowledge so might have got this entirely wrong.


My understanding of the "safe harbour" protection that google and others have for - is that they argue that they only provide a venue for content (in google's case with youtube) and that for that reason, they cannot be got at for copyright violations.

From what I understand - there is now an argument being made, that because they do remove content, this creates an editorial connection and thus the idea of being a "safe harbour" does not apply?


If that's right - what does that mean for the foundation and the removal of content from wikipedia by staff members of the foundation?

Hopefully someone can put me straight - or tell me I'm talking a lot of rubbish

The exercise of moderation of content provided by third parties will not hamper either DMCA "safe harbor" provisions or the immunity from liability offered by Section 230. The only thing that would impair it would be if the Foundation or its agents were responsible for creating content themselves, and then only with respect to such content actually created by its agents, or if they or their agents assisted or actively encouraged third parties in contributing infringing or otherwise tortious content. With respect to Section 230, the fact that moderation is done haphazardly or by poorly supervised volunteer moderators has no effect on immunity. Only active, knowing participation in tortious activity will breach the respective immunities.

Failing to remove content in a timely manner after actual notice (where "notice" is defined by the terms of the DMCA for copyright, and by case law precedent with respect to other tortious content for which immunity would be otherwise provided by Section 230) may establish liability, but there is no obligation on the part of the immunized entity to search for and remove infringing or otherwise tortious content in advance of actual notice. That said, if the Foundation removes infringing or tortious content without a complaint in one situation, this in no way diminishes their immunity with respect to other such content which has not yet been removed.

I am not a lawyer; the foregoing is not legal advice.

Your questions are good, and illustrate well the lack of consistency, or compliance with standards and norms; aka, U.S. Code.

Section 230 treatment requires that the Foundation not exercise editorial powers, as they are supposed to be as distended from content as would be an ISP. For example, you don't see GoDaddy editing websites, or correcting them, or verifying the content as objection-free, etc. You don't see GoDaddy's CEO getting involved in content disputes, and attempting to ban persons who criticize people who hold to account abusers. You DO see Jimbo giving the last word on content. In Genera, Jimbo continues to excercise his famed 'dictatorial powers' mentioned in the 2001 'Cabal discourse' which gave forth much criticism, and which he now denies as a principle, but enshrines as a practice, i.e. Jimbo is an Editor-in-Chief.Jimbo has the last word as to Wikipedia (English version) content. Wikipedia is a publication, and the person with the last word on content is an editor-in-chief. So Jimbo is an editor-in-chief. Where did Jimbo declare himself editor-in-chief? Here. He used the word "dictator", but same thing. Shortly thereafter, in a hail of criticism, he denied the whole thing here.

Jimbo's "inconsistency" escapes critique only by virtue of the fact that Wikipedia is an online publication, and most judges (and lawyers) haven't wrapped their heads - in any real sense - the context of the online world. Which given the ubiquitous nature of internet content, is disproportionately incommensurate - in terms of legal oversight of 'what the hell is going on' online. As for the staff members of the foundation. They have quasi-Jimbo-like powers, but of a lesser-God level. Oops, did I say that out loud? I meant, mid-level-editorial powers.

If Wikipedia's institutional management (the WMF) was indeed an ISP, there would be no interaction between the community and the WMF. That's anathema to the community concept - at least as it stands. So for WMF to be truly an ISP, they'd have to create a new structure, and have some kind of community management structure, separate from the WMF. Which would be kind of a mess, and would only create a new layer of the already existing mess. And Cary Bass would dislike being deprived of his salary, I suppose. There's an easy solution to all this. Stop being assholes. Then legal discussions become moot. It's called 'self-reglation' and most grownups are able to do it. Most, but not all.

Mind you, Google does in fact exercise content removal, as do most ISPs. We had issues with people writing personal information, or admins getting out of control on other chat boards, and the ISP did in fact intervene as some sort of appellate body, if you will, or authority, before things got out of hand. The problem with Wikipedia is that the Office and Jimbo are right there in the sandbox with the bullies. And that they too are bullies. So there is no moral authority, or paternalistic person to turn to, for a sense of reason. Which makes it all run off the rails. Often.

The bottom line is that Wikipedia is a social networking site. Wikimedia management, and/or Jimbo participate in the social networking activity. In effect, Wikipedia is (apologies to Dave Packard) "Management by Social Networking". Wikipedia is a chat board. Someone please explain to me why - in the name of God - do User:Talk pages show up on Google? At top ranking. That's ridiculous. Much of the most damaging material in discussions are on Talk pages. I could - if I were a user - write something about Joe Blow and his collection of lurid XXX's on the Wikipedia User Talk page, and it would be elevated to no. 1 on Google, about poor Joe Blow (who may not really have a lurid collection of XXXX's, and if he did, it would be none of my, nor the world's darn business to read about it as the no. 1 Google hit on his name).

Under the current Wikipedia standard, if you ask OTRS to remove such material, you are probably going to be ignored. If you escalate to office, you'd probably still be ignored. If you asked Jimbo, all you'd do is elevate Jimbo's already exploding ego, and allow him prurient pleasure of watching yet another victim suffer. Jimbo likes to see people suffer, and that's why Wikipedia is what it is. If none of the aforementioned parties ignore you (i.e. if they actually do respond, and remove material) the garbage (i.e. "damaging libel") will remain in the history. For no reason other than that they are jerks. Jimbo once claimed in an interview, to John Seigenthaler, that the history of his page had been removed. That was a false claim. No, sorry, it was twice. Once on CNN, once on NPR. John Seigenthaler was too polite to call him a liar on the radio, both times.

The Rule of Law is there to protect persons from one another. Wikipedia is a perfect example of how exemptions from the rule of law can lead to miscreant, negative, or even purposefully malicious behavior. That's not free speech. That's state-sanctioned cruelty.