The gloves come off: Internet Brands sues volunteers; WMF sues Internet Brands
James Heilman, one of the two volunteer Wikipedians named in the lawsuit
In dramatic events that came to light last week, two English Wikipedia volunteers—Doc James (James Heilman) and Wrh2 (Ryan Holliday)—are being sued in the Los Angeles County Superior Court by Internet Brands ("IB"), the owner of Wikitravel.org. Both Wikipedians have also been volunteer Wikitravel editors (and in Holliday's case, a volunteer Wikitravel administrator). IB's complaints focus on both editors' encouragement of their fellow Wikitravel volunteers to migrate to a proposed non-commercial travel guidance site that would be under the umbrella of the WMF (Signpost story "Tough journey for new travel guide").
Disenchantment within the volunteer Wikitravel community appears to concern an intensification of advertising on the site, IB's technical management, and the company's treatment of the volunteers who have built the CC-licensed content over many years. In today's New York Times article, "Travel site built on wiki ethos now bedevils its owner", veteran journalist Noam Cohen writes that, according to Heilman, "as many as 38 of the 48 most experienced and trusted volunteers at Wikitravel have said they will move to the Wikimedia project". The migration of the remaining Wikitravel volunteers to the foundation would come six years after German-speaking Wikitravel editors walked out of the project soon after Internet Brands acquired it, forking into a new Wikivoyage site, followed soon after by their fellow Italian-speaking editors. The non-profit association that runs Wikivoyage voted three months ago to join the proposed travel-related WMF project.
After months of community-led discussion on Meta, last Thursday the WMF's Deputy General Counsel, Kelly Kay, announced that the board "is moving forward with the creation of this new project", and had filed a lawsuit "seeking a judicial declaration that IB has no lawful right to impede, disrupt or block" the creation of a new WMF travel website.
Kay's statement accuses IB of "disrupting this process by suing the two volunteers to intimidate other community volunteers from exercising their rights to freely discuss the establishment of a new community focused on the creation of a new, not-for-profit travel guide under the Creative Commons licenses." She said the foundation believes it is the real target of IB's legal action, and that its "only recourse is to file a lawsuit to deal head on with Internet Brand’s actions over the past few months in trying to impede the creation of this new travel project."
We will steadfastly and proudly defend our community’s right to free speech, and we will support these volunteer community members in their legal defense. We do not feel it is appropriate for Internet Brands, a large corporation with hundreds of millions of dollars in assets, to seek to intimidate two individuals. — Kelly Kay, WMF Deputy General Counsel
On an ominous note, IB's lawsuit states that "further investigation continues to reveal additional co-conspirators" and that it expects to amend its action to include additional defendants, among them "other Administrators that have been most corrupt in this scheme and any entity or individuals that provided them support or otherwise participated in these wrongful acts. This potentially includes the Wikimedia Foundation, members of its Board [and] other individual members of the Foundation".
IB's lawsuit against the volunteers
Among other things, IB's 57-paragraph lawsuit:
states that Wikitravel's content "can be created, deleted, modified, modified, and otherwise edited by anyone", and that every contributor to the site "gives the right to anyone else to copy the content", provided attribution to the original content creator is given and the CC-licensing is retained;
asserts the company's ownership of the trademark Wikitravel, and that this has been established "at great labor and expense";
claims that the use of a similar term (Wiki Travel Guide) by Holliday and Heilman "is intentionally designed to replicate" IB's trademark (the US Lanham Act is cited);
alleges Heilman "announced" that the new WMF site would be called "Wiki Travel Guide", and accuses Holliday and Heilman of attempting to trade on the trademark, confuse the marketplace, and violate the CC-license;
points out that Heilman is a board member of Wikimedia Canada (without clarifying its status as an independent entity or that chapters have no power to announce the creation of a new WMF sister project);
reports that Heilman met with others at Wikimania on 12 July "to reach a further meeting of the minds as to the unlawful acts to be undertaken" (although there is no acknowledgement that IB's Chief Marketing Officer Chuck Hoover flew to Washington DC for the meeting, having publicly announced his intention to participate);
takes exception to a number of instances of emailing within the Wikitravel volunteer community, in which it is claimed that the two volunteers "deliberately misrepresented facts and conspired with each other and many more to violate several laws in order to gain personally"; and
alleges that as a result of the actions the company is complaining of, Holliday and Heilman "have been unjustly enriched and Internet Brands has been injured and damaged."
Defendants are profiting, directly or indirectly, through the use of Internet Brands’ Wikitravel Trademark in a deliberate, willful, intentional and wrongful attempt to trade off of Internet Brands’ goodwill, reputation and financial investment in its Wikitravel trademark. — Paragraph 50, Internet Brands' legal complaint
IB asks the court to restrain the defendants (and potentially the WMF by implication) from making visible use of the Wikitravel trademark; to award damages and costs against Holliday and Heilman; and to award punitive damages against the volunteers (i.e., to deter anyone from engaging in similar conduct). IB has specifically asked the court to consider Ryan Holliday's business as liable to the court's adjudication of his personal liability, and has asked for a jury trial.
The Signpost understands that Heilman has not yet been served with a summons and legal papers, and that after he is served he will have up to 30 days to provide a written response to the court and the plaintiff. The WMF has arranged for both volunteers to be represented by the high-profile international legal firm Cooley LLP, which has expertise in trademark, copyright, user-generated content, intellectual property, and competition law. Cooley LLP—comprising some 300 litigation attorneys—will also represent the foundation in its lawsuit against Internet Brands. IB is represented in both actions by Wendy E Giberti of iGeneral Counsel in Beverly Hills, CA.
The WMF's lawsuit against IB
Although the right to fork CC-licensed content has been assumed to be legal, it has received little judicial attention in the US. The foundation is asking the Superior Court of California in the County of San Francisco to declare that:
IB has no right to limit the use of user-created CC-licensed content on Wikitravel;
all such content may be freely migrated without interference from IB;
IB has no lawful right to prevent current or former Wikitravel volunteers from freely contributing to a new Wikimedia-owned travel website;
Wikimedia may contact, communicate with, or express support for any current or former volunteer Wikitravel authors or administrators who are seeking to participate in the new website, even if this results in those people no longer contributing to Wikitravel; and
Wikimedia may assist people to copy and migrate content from Wikitravel to a WMF or third-party site.
The foundation is asking that costs be awarded against IB.
The German news portal heise.de reports in its story "Right to fork: Wikimedia sues Wikitravel operators" that IB told them the company "has no problem that Wikimedia is launching a new travel site—but we insist that the foundation respect our copyright and trademark rights, and the laws against unfair competition." (the Signpost's translation)
The Signpost has been unable to ascertain the likely timeframe for each action, but understands that the legal processes will probably hold up the launching of the new site for some months.
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