LEGAL INSIGHTS AND NEW DEVELOPMENTS IN INTERNET LAW & ONLINE BUSINESS

The Wikitravel.com v. Wikimedia Foundation Lawsuit: Forking & Other Things

Posted on 20 September, 2012 in Internet Law and Intellectual Property by aaronklaw

I was reading the other day on Techdirt, about a war that’s a-brewing in the open source community. In one corner we have the Wikimedia Foundation; in the other, Internet Brands – the company that owns and operates Wikitravel.com. A saga involving volunteer editors, a for-profit wiki site and bombastic court filings, the Wikitravel v. Wikimedia Foundation lawsuit, believe it or not, is so intriguing it could serve as the topic for a made for TV movie.

The Wikitravel.com Tale

Back in 2003, two developers started wikitravel.com using the open-source wiki code. In 2005, Internet Brands – an umbrella company with a lot of online properties – bought the travel hub for a cool $1.7 million. Since wikitravel.com was under a creative commons sharealike license, when Internet Brands made the purchase, they technically only purchased the website and platform, but the exclusive rights to the content was not part of the package.

Not only did the Internet Brands folks not buy wikitravel.com’s article content, but, like Wikipedia, the site was primarily run by a dedicated group of volunteers. Unhappy with the way Wikitravel.com is being managed now, those volunteers are looking to break from the for-profit and create a new travel hub under the Wikimedia Foundation tent. In tech-talk, the volunteers are looking to “fork” from Wikitravel.com.

A Quick Lesson On Open-Source Forking

“Forking? Huh!?” “Forking is a term used in the open-source community when multiple versions of a source code,” which once shared a common code base, are developed in parallel and the multiple versions have “irreconcilable differences.” So, in the simple terms, forking is when there is a (usually nasty) split in a given developer community.

In the Wikitravel.com v. Wikimedia Foundation battle, the non-profit seems to be concentrating on “forking,” and the for-profit on what they consider to be unfair business practices.

The Wikitravel Wikimedia Foundation Legal Showdown

Wikitravel.com was the first to fire the gun in the legal race with the Wikimedia Foundation. After catching wind that some of the volunteers were galvanizing support for a “migration” to the Wikimedia Foundation platform, Internet Brands filed a lawsuit against James Heilman and Ryan Holliday – two highly involved wikitravel.com volunteers. IB claimed that Heilman and Holliday misrepresented themselves in an email to other wikitravel.com contributors, by referring to themselves as decision-making executives of Wikitravel.com. Specifically, the email central to Internet Brands’ lawsuit reads:

Subject Line: “Important information about Wikitravel!”

“This email is being sent to you on behalf of the Wikitravel administrators since you have put some real time and effort into working on Wikitravel. We wanted to make sure you are up to date and in the loop concerning big changes to the community that will affect the future of your work! As you may already have heard, Wikitravel’s community is looking to migrate to the Wikimedia Foundation.”

A precisely worded email if there ever was one; and a smart move too, because when it comes to the law, it’s often all about nuance. In this instance, the exact verbiage that Internet Brands seems most concerned with is “Wikitravel administrators” and “migrate.” In their filing, IB asserts that Wikitravel volunteers are not empowered to make major decisions for the company. Moreover, IB argues that the actions of Holliday and Heilman equate to unfair business tactics; they’re also alleging trademark and copyright infringement.

IB, however, may have a difficult time convincing a judge that the use of the word administrator was inappropriate. You see, the term “administrator” is regularly used in “wiki circles” (heck, in the whole open source community) for active volunteers. A judge may very well strike down Internet Brands’ claim that using that word was misleading.

But regardless of how the judge rules in the Internet Brands’ filing, a conversation about the case can’t happen without talking about Wikimedia Foundation’s counterclaim.

“Internet Brands has no lawful right to impede, disrupt or block the creation of a new travel oriented, Wikimedia Foundation-owned website,” began the non-profit’s declaratory judgment filing. The document goes on to assert that the “Wikimedia movement stands in the balance [and] the Wikimedia Foundation will not sitidly by and allow a commercial actor like Internet Brands to engage in threates and litigation to prevent the organic expression of community interest in favor of a new, non-commercial travel wiki in a misguided effort to protect its for-profit Wikitravel site.”

Do you see the discord? Internet Brands is focusing on intellectual property and unfair business practices as it relates to the named volunteers, while Wikimedia Foundation is honing in on the “forking” issue.

But maybe Wikimedia has a point in focusing on the fork. After all, Internet Brands’ claim states: “In March, the foundation began supporting efforts to recreate the Web site in its exact form. More recently, in the wake of a six-month campaign to galvanize a migration, the foundation escalated its plans by asking us to transfer this site to the foundation in exchange for nothing.”

An Internet Lawyer’s Take On The Travel Wiki Lawsuits

If you’ve made it this far, you’re probably curious enough about the lawsuit to get an Internet lawyer’s take on the matter. Well, you’re in luck!

First things first, I think it’s not the swiftest move for any online operation that relies on volunteer efforts to sue those volunteers. Etiquette aside, though, when looking at each of the parties positions, it’s difficult to say who has the stronger case.

It may come down to the tendencies of the judge ruling on the case. If they are more “in tune” with tech vernacular, there’s a chance they may rule that the e-mail in question did not explicitly state that the “admins” were working on behalf of Wikitravel.com. If that is the case, the unfair business practice argument crumbles, especially since Wikitravel operates under a cc-by-sa license.

So, in a sense, it kinda makes sense for Wikimedia to focus on the forking issue, as it may elucidate the larger picture for the presiding judge, and work in the non-profits favor, while at the same time establishing further “forking” legal precedence.

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