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A Step on the Way: toward a more consistent ICT contract across all Australian ______governments______It is hoped that the Framework and the continue and grow as the project Ministers for Procurement for each the level of co-operation between States, moves forward. States, Territories and the Australian Territories, the Australian Government. Note. The Australian Construction and Government and the ICT industry will Procurement Council represents the Legal Controversies Surrounding

Catherine Bond

Catherine Bond is a PhD student based at the Cyberspace Law and Policy Centre at the University of New South Wales. Her thesis is part of the ARC-funded “Unlocking IP” project, focussing on the commons, public domain and public rights in Australian copyright law.

For many individuals, Wikipedia1 has Wales to create a new encyclopedia descriptions. At the same time, become the first place to look when based on the collaborative “wiki” Wikipedia also features medical, confronted with an unfamiliar term or format.3 Wikipedia was launched on biographical, historical and scientific historical event, or to get up-to-date 15 January 2001, which is now pages that are also commonly found in with the latest development in a sometimes referred to as “Wikipedia traditional encyclopedias. current story. It is an online, free to Day.”4 Wikipedia has grown significantly in use, encyclopedia that provides a Since the creation of Wikipedia, both success and content since its wealth of information on a diverse has arguably become creation. As of 4 June 2007: number of topics including culture, the public face of this open history, medicine, and sports. “There are more than 75,000 active encyclopedia.5 Wales has been Wikipedia describes itself as the contributors working on some described as becoming to the Internet “encyclopedia that anyone can edit”2 5,300,000 articles in more than 100 “what Bob Geldof was to famine and any individual can theoretically languages. As of today there are relief: an almost saintly guru, a 1,815,828 articles in English; every make changes to any entry, or even visionary who has pooled the talents day hundreds of thousands of create a new entry for an event, of many for the greater good.”6 visitors from around the world make category or term not yet included. Indeed, when Wales visited Australia tens of thousands of edits and create However, with the growth in both the for a week of seminars in April 2007, thousands of new articles to enhance content and success of Wikipedia, the knowledge held by the he became part of television history there has been a concurrent increase in Wikipedia encyclopedia.”10 when he was subjected to The the legal controversies surrounding Chaser’s War on Everything’s “Ten There is also evidence of Wikipedia’s this collaborative encyclopedia. Questions”, indicating that both Wales success as both a website and It is the aim of this article to address and Wikipedia have permeated the encyclopedia. As it was noted in The these legal controversies, before pop culture psyche both in Australia Sydney Morning Herald, in February briefly discussing in each example and internationally.7 2007, Wikipedia received over 192 whether these particular issues are any million individual visits after a survey The attractiveness of Wikipedia is different to those experienced by conducted by United States rating two-fold: for individuals searching for websites and other online forums since agency comScore World Metrix.11 information, it can be used as a the explosion of cyberspace. This This result made Wikipedia “the research tool, while others eager to article will first provide a brief world’s 6th most visited website- disseminate information on a specific overview of the growth of Wikipedia behind those run by giants such as topic can edit the relevant Wikipedia and then consider four interrelated Microsoft, Google and Yahoo.”12 In page. There are also non-English Wikipedia legal controversies: factual terms of the most popular Wikipedia , with many introduced inaccuracies, controversial content, a 2007 study by Anselm only a few months after the launch of contributors, defamation and Spoerri revealed that, perhaps not the English-language Wikipedia.8 copyright infringement. surprisingly, entertainment and Unlike traditional print-based sexuality-based pages tend to receive Introduction to Wikipedia encyclopedias, Wikipedia is the most visits.13 Wikipedia began in early 2001, continually updated “within minutes Like many Internet-based success following the collaboration of Jimmy or hours” of an incident or even stories, however, Wikipedia has not Wales and Larry Sanger on Nupedia, occurring.9 No topic is too small or been able to escape the legal which was created with the aim of too large for Wikipedia; for example, controversies that often accompany producing an open, free encyclopedia. it provides a collective resource for popularity. Whether the attention According to the “Wikipedia:About” many popular television shows, with given to each of these controversies is page on Wikipedia, Sanger convinced detailed episode and character 4 Computers & Law June 2007 Legal Controversies Surrounding Wikipedia justified is another question. It is contributor innocently edits a page, Such a statement indicates that the arguable that the continual growth and according to his or her personal powers behind Wikipedia recognise success of Wikipedia has made it an knowledge, but the content of that edit that entries will contain information easy target. In the four following is in fact incorrect. that may be inaccurate, whether this is legal controversies - factual incorrect from the date it is uploaded Although there have been a number of inaccuracies, controversial to after a more prolonged period of famous examples of factual contributors, defamation and time. However, it has also been inaccuracies appearing on Wikipedia, copyright infringement - Wikipedia suggested that the issue of inaccuracy only two will be briefly discussed was given substantial negative on Wikipedia is not as significant as it here. First, between July 2005 and attention in the press. In some cases, first appears, at least where Wikipedia March 2007, it was stated on the this may have been justified, while in entries are considered against other Wikipedia biography of Hillary other cases, perhaps not. encyclopedias. Rodham Clinton,16 the United States Details will be given for each of the Presidential hopeful, that she was For example, a December 2005 study controversies, although it is not the valedictorian of her 1969 graduating by Nature magazine compared entries aim of this paper to enter into any college class.17 This was incorrect; from Wikipedia and Encyclopedia substantial legal analysis. Clinton did speak at the graduation Britannica and found that, on ceremony for her Wellesley College Wikipedia, “high profile examples of Factual Inaccuracies class, but she was not valedictorian.18 (of factual inaccuracy) are the The first legal controversy involves Between July 2005 and the discovery exception rather than the rule.”24 the issue of factual inaccuracies on of this error by MSNBC.com in March Further, the study 2007, approximately 4800 edits were Wikipedia. Given that Wikipedia has “revealed numerous errors in both now grown to over 1,800,000 English made to the Hillary Rodham Clinton encyclopaedias, but among 42 entries language articles, with some written biography; however, none of those tested, the difference in accuracy was not by experts and others by amateurs, it edits corrected this inaccuracy.19 particularly great: the average science entry is not surprising that some in Wikipedia contained around four Second, in March 2007, the Wikipedia inaccuracies have emerged. However, inaccuracies; Britannica, about three.”25 biography for United States comedian the fact that Wikipedia may and does Sinbad20 was edited to state that Since the publication of the Nature contain some factual inaccuracies has Sinbad had died of a heart attack.21 study, it has been criticised by a been a continual source of complaint This news spread; however, the ‘hoax’ number of parties, including by critics. The “Criticism of was discovered and the entry was Encyclopedia Britannica,26 Wikipedia” page that appears on edited. Following this incident, Wales Wikipedia highlights a number of Given that the success and content on stated that the inaccuracy was on complaints that fall under the category Wikipedia continues to increase, it is Wikipedia “for less than 30 minutes” of “Factual Inaccuracies”, including arguable that, over time, the but there were a considerable number complaints about the collaborative occurrence of factual inaccuracies will of news stories focusing on this ‘wiki’ model, the usefulness of decrease. Until that time, however, hoax.22 Wikipedia as a reference and its the task will fall on other Wikipedia suitability as an encyclopedia.14 Wikipedia editors and contributors are contributors and editors to watch aware that this collaborative individual pages for incorrect entries, Factual inaccuracies can occur encyclopedia is a site for potential regardless of whether such through a number of ways on purposeful and ignorant inaccuracies. inaccuracies are caused by vandalism Wikipedia. First, incorrect information It is stated on the “Wikipedia: About” or ignorance. may be added to a page for malicious page that reasons, or what is commonly referred Controversial Contributors to on Wikipedia as ‘vandalism’. On “ The i d e a l Wikipedia article is The second controversy involves the “Criticism of Wikipedia” page, the balanced, neutral and encyclopedia, individual Wikipedia contributors who experience of John Seigenthaler Sr. containing notable, verifiable knowledge. An increasing number purport to be somebody else or have and his Wikipedia biography is certain credentials. If an individual discussed under the heading of articles reach this standard over time, and many already have. claims that he or she is an established ‘Exposure to Vandals.’15 The impact However, this is a process and can scholar, until now Wikipedia has of that defamatory biography will be take months or years to be achieved, generally not checked such considered in the third legal as each user adds their contribution credentials. This is changing, due to controversy addressed in this paper. in turn. Some articles contain the experience of Wikipedia with an Second, an inaccuracy may occur statements and claims which have online contributor who used the because an individual contributor may not yet been fully cited. Others will pseudonym “Essjay”. be biased and edit a page according to have entire new sections added. their own beliefs, despite there being Some information will be considered “Essjay” was a “prolific Wikipedia evidence supporting a different by later contributors to be contributor” who claimed to be a insufficiently founded, and may be professor of theology.27 According to proposition that should be included on removed or expounded.”23 (emphasis a report in The Sydney Morning the page. Third, an inaccuracy can in original) also occur where an individual Herald, “Essjay” made over 20,000 Wikipedia entries.28 During this time Computers & Law June 2007 5 Legal Controversies Surrounding Wikipedia as a contributor “Essjay” was One of the most famous Wikipedia weeks for the comments to be promoted to the coveted role of legal controversies was caused by removed by Answers.com and “arbitrator” and also hired to work for factual inaccuracies, although the Reference.com.42 the for-profit company Wikia Inc.29 inaccuracies in this case went much Unfortunately for Seigenthaler, all he further than mere misinformation. In 2006 featured an could find was the Internet Protocol The statements in what is dubbed on article about Wikipedia and (IP) address of the anonymous Wikipedia as the “Seigenthaler interviewed “Essjay” as part of this individual and, after some legal controversy” were potentially research. The interview featured the discussion, was told by BellSouth, the defamatory/4 Indeed, it is arguably long ‘credentials’ of “Essjay”, which company responsible for that IP this event that brought the accuracy included a Ph.D. in Theology and a address, that United States Federal law and to the Doctorate in Canon Law.30 However, precluded the release of the identity of foreground. in early 2007, the New Yorker the individual.43 If Seigenthaler was included an editorial note that revealed In November 2005, John Seigenthaler to unmask the maker of these “Essjay” was actually Ryan Jordan, a Sr. published an article in USA Today, allegedly defamatory comments, he 24-year-old college dropout.31 describing his experience of having would have to file a “John or Jane According to reports, Jordan defamatory content about himself Doe” lawsuit. This was essentially contributed to a number of Wikipedia posted by an anonymous individual.35 the only legal avenue open to him, as entries “based on information culled A friend, Victor S. Johnson Jr., of the 1996 from books such as ‘Catholicism for contacted Seigenthaler in September Communications Decency Act Dummies.’”32 “Essjay” resigned from 2005 regarding certain statements on precluded Seigenthaler from taking Wikia and from editing Wikipedia. Seigenthaler’s Wikipedia biography/6 legal recourse against Wikipedia or One of these statements noted that Bell South, who under this provision This example relates to the first legal Seigenthaler was previously an are protected from being treated as the controversy discussed in this article, assistant to the-then United States “publisher” or “speaker” of the factual inaccuracies. Despite Attorney-General Robert Kennedy in defamatory communication.44 suggestions by critics that individual the early 1960s. However, it was users should be wary of relying on Following the appearance of further stated that Seigenthaler was statements made on Wikipedia, it is Seigenthaler’s piece in USA Today, believed to have been involved in the arguable that many do. If Wikipedia Daniel Brandt, who had previously assassination of both Robert Kennedy entries are written by experts with started the anti-Wikipedia site and former President John F. suitable credentials or individuals with “Wikipedia Watch”, tracked the IP Kennedy, although “nothing was ever an expertise in a particular area, then address that Seigenthaler had listed in proven.”37 this reliance is perhaps warranted. his article to a Nashville-based Indeed, the appeal of Wikipedia While it is true that Seigenthaler was delivery company called ‘Rush arguably lies in the fact that any an assistant to Robert Kennedy, the Delivery’.45 Finally, on 9 December individual with a keen interest in an second statement was not and, 2005, Brian Chase, a Rush Delivery area can edit a site. outraged by this potential defamation, employee, admitted responsibility for Seigenthaler contacted friends and posting the comments on The ramifications of changes by non­ family members in an attempt to Seigenthaler’s biography on 26 May, experts are arguably less serious discover if these statements were 2005 as a prank on a colleague.46 where the contributions are about available on any additional websites.38 Chase apologised to Seigenthaler who, films, culture or sports. However, in After investigation, Seigenthaler in turn, promised that he would not other instances, expertise may be found out that the biography v/as also pursue legal action against Chase.47 preferable to hinder any possible available on Reference.com and misinformation. What is disconcerting This incident demonstrates the Answers.com.39 about the “Essjay” controversy is the defamation issues that surround fact that this individual purported to The biography was available on Wikipedia. This issue is arguably have credentials that he did not Wikipedia for 132 days and, exacerbated by the fact that, in many actually possess and his contributions Wikipediaeditors had made minor cases contributors are able to remain were probably trusted on the basis of spelling and grammatical edits to the anonymous, except for their IP those credentials. Seigenthaler biography during this addresses. However, while the time.40 However, no changes were Seigenthaler controversy is a good Following this controversy, there are made to the content of the statements, example of where Wikipedia was reports that a new system will be for, as Myers has noted, the editor misused and its editors failed to realise adopted whereby individual “did not recognise the defamatory potential defamation, it is also contributors will be able to remain nature of the claim.”41 Seigenthaler illustrative of a common Internet anonymous, but contributors who contacted Jimmy Wales and began his problem. Chase chose this particular purport to have certain credentials will pursuit of finding the anonymous site because of the “open invitation to have these checked/3 individual who had made these edit Wikipedia” that is heralded as one Defamation comments. Wales removed the of the reasons behind the success of statements from Wikipedia on 5 this collaborative encyclopedia.48 October 2005, but it took three more Further, it can also be suggested that 6 Computers & Law June 2007 Legal Controversies Surrounding Wikipedia this legal controversy can happen on of copyright infringement is arguably 7 Asher Moses, “Chaser’s War on Wikipedia any web forum. In that sense, while the most manageable. The issue of Founder”, The Sydney Morning Herald Wikipedia is arguably more copyright infringement can confuse (Sydney), 26th April 2007, accessible at susceptible to possible defamatory even the most knowledgeable Internet http://www.smh.com.au/news/technology/chase attacks, it is important to remember user or website developer. However, rs-war-on- wikipedia/2007/04/26/1177459849504.html at that it is not the only website where it appears that Wikipedia does take 12th June 2007. such attacks can occur. steps to reduce the incidence of this type of action. The issue of copyright 8 See “Wikipedia: About”, above n 3. Copyright Infringement infringement is arguably one that, 9 Id. It is not surprising that copyright should an incident develop into a 10 Id. infringement is listed as an issue on major legal controversy for Wikipedia, 11 “Not Just A War of Words”, above n 6. the Wikipedia “Criticisms of will have to be more thoroughly Wikipedia” page. On this page, it is addressed. acknowledged that many images and Conclusion 13 Anselm Spoerri, “What Is Popular on some articles that appear on Wikipedia Wikipedia and Why?” (2006) 12(4) First are technically infringements of The evidence is clear: Wikipedia Monday, http://firstmondav.org/issues/issuel2 4/spoerri2 copyright.49 Given the fact that many continues to grow both as an /index.html at 4th June 2007. individuals do not properly understand encyclopedia and in terms of its how copyright law operates in the popularity and success. To date, this 14 See “Criticism of Wikipedia”, accessible at http://en.wikipedia.org/wiki/Criticism of Wiki digital era, it is understandable that online, collaborative encyclopedia has pedia at 4 th June 2007. Wikipedia would experience copyright faced many legal challenges. issues. However, to date, it does not However, it appears that it has also 15 Ibid, at “Exposure to Vandals”. appear that there has been any major adapted its policies in line with the 16 See “Hillary Rodham Clinton”, legal controversy caused by this issue. lessons learned from such http://en.wikipedia.org/wiki/Hillarv Rodham C controversies. Perhaps the success of linton at 12th June 2007. Copyright infringement on Wikipedia Wikipedia - and the fact that this 17 See “Criticism of Wikipedia: Difficulty of can occur in two ways. First, where success has come from a non­ Fact-Checking”, above n 14. an individual uploads text from an commercial, open forum - has external Internet site or an off-line exposed the venture to greater resort, with or without attribution, and 19 Id. criticism. It will be interesting to see either ignoring the exclusive rights of whether, with newer open content 20 See “Sinbad”, the copyright owner or in ignorance of forums emerging, Wikipedia can http://en.wikipedia.org/wiki/Sinbad (actor) at these rights. Such an action would 12th June 2007. sustain its popularity in the long term, also arguably constitute plagiarism. and grow in terms of the quality and 21 “Not Just A W ar of Words”, above n 6; see Second, infringement can occur where reliability of its content.* 4 also “Sinbad - Erroneous Death Report”, Ibid. an individual uploads an image to Wikipedia, found through the Internet 22 “Not Just A W ar of Words”, above n 6 or an offline source, again lacking the 23 See “Wikipedia: About”, above n 3. 1 See http://en.wikipedia.org/vviki/Main Page permission of the copyright owner to 24 Jim Giles, “Internet Encyclopedias Go Head for the English language version of Wikipedia to H ead ” , Nature, 15th December 2005, vol. undertake this action. Where a reference in this paper is given to 438, p. 900. The “Criticisms of Wikipedia” entry information appearing on a Wikipedia page, the author retains on file a copy of that page as of 25 Id. on copyright infringement focuses on the date specified in the relevant footnote. the latter type of infringement. It is 26 See “Criticism of Wikipedia - Quality 2 Id. noted that individual images are Concerns”, above n 14. sometimes uploaded and the ’ See “Wikipedia: About”, accessible at 27 , “Expert Exposed as College http://en.wikipediaorg/wiki/Wikipedia:About at contributor will tag that image as “fair D ro p o u t” , The Sydney Morning Herald 4 June 2007. For a greater discussion of the use”, an American legal doctrine that (Sydney), 8 March 2007, accessible at development of Wikipedia, see, for example, http://www.smh.com.au/news/web/expert- operates as a defence to infringement Yochai Benjler, The Wealth of Networks: How exposed-as-col lege- if five specific factors are satisfied.50 Social Production Transforms Markets and dropout/2007/03/08/1173166865472.html at 4th Freedom (2006, Yale University Press, USA), at According to Wikipedia, tagging Ju n e 2 0 0 7 . pp. 7 0 - 7 4 . images as ‘fair use’ is “discouraged 28 “Not Just A W ar of Words”, above n 6. but not disallowed” on the English- 4 Id. 29 Id. language version of Wikipedia.51 5 See “Jimmy Wales”, However, Wikipedia editors will often http://en.wikipedia.org/wiki/Jimmv wales at 30 See “Criticism of Wikipedia - The New remove an image stated to be “fair 12th June 2007. Yorker article and the Essjay Controversy”, above n 14. use” unless there is a “reasonable 6 “Not Just A War of Words”, The Sydney justification” for the inclusion of that Morning Herald (Sydney), 21 April 2007, 31 Associated Press, above n 27. image on Wikipedia under the accessible at http://www.smh.com.au/news/world/not-just-a- doctrine.52 war-of-words/2007/04/21/1176697134712.html 33 “See Criticism of Wikipedia - The New Of the four legal controversies at 4 th June 2007. Yorker article and the Essjay Controversy”, above n 14. discussed in this article, the incidence Computers & Law June 2007 1 Legal Controversies Surrounding Wikipedia

34 See ‘Seigenthaler controversy’ on Wikipedia, http://www.nvtimes.com/2005/12/ll/business/ accessible at media/1 lweb.html?ex=1291957200&en=a5050 http://en.wikipedia.org/wiki/John Seigenthaler 40 Id. 3d3b281b485&ei=5088&partner=:rssnyt&emc=r Sr, Wikipedia biography controversy at 8th 41 Jimmy Wales in Ken S. Myers, ss at 12th June 2007. June 2007. “Wikimmunity: Fitting the Communications 46 Id. Decency Act to Wikipedia” (2006) 20(1) 35 John Seigenthaler, “A False Wikipedia H arvard Journal of Law & Technology 163 at 47 Id. ‘Biography’”, U S A T o d a y (USA), 29th 170-171. November 2005, accessible at 48 Myers, above n 41, at p. 170. http://www.usatodav.coni/news/opinion/editoria 42 Seigenthaler, above n 35. ls/2005-11-29-wikipedia-edit x.htm. 8th June 49 See ‘Criticisms of Wikipedia - Copyright 2007. 43 Id. Issues’, above n 14.

36 See ‘Seigenthaler controversy’, above n 34. 44 See Myers, above n 41 at pp. 172 - 201. 50 Id.

37 The statements, in their entirety, were quoted 45 See ‘Seigenthaler controversy’, above n 34; 51 Id. by Seigenthaler in his USA Today, piece. See see also Katharine Q. Seelye, “A Little 52 Id. Seigenthaler, above n 35. Sleuthing Unmasks Writer of Wikipedia Prank”, (New York), 11 December 38 Id. 2005, accessible at GooTube: Who is the empire now and will it strike back?*

Alex Hutchens

Alex Hutchens is a solicitor of the Supreme Court of Queensland. Alex practices in Brisbane and specialises in transactional IT and IP matters.

*Note: This article is not intended to be, and must not be used as a substitute for, legal advice. The thoughts and arguments presented herein have been formulated in the abstract, and without the benefit o f the full range o f materials which must be considered before advising in respect o f these issues in relation to a particular service or entity. The article is designed only to be a comparative analysis o f US and Australian Copyright law, with specific reference to topical subject matter.

Introduction Napster has long since settled and market power, the lines are no longer K azaa decided, but since these cases, so easily drawn. Google’s purchase of The high profile legal battles between ^ the proliferation of high speed YouTube and News Corporation’s the Record Industry Association of , broadband (except, perhaps, in purchase of MySpace have thrown the America and Napster1, and more Australia) and various innovative new traditional content ownership models recently, Universal Music and ' applications have combined to focus into disarray. Suddenly, ‘progressive’ Sharman Networks (the Kazaa ' attention even more greatly on the content delivery models are owned by litigation)2, are part of the folklore of consumer as ‘creator’. major corporates. Consequently, it is the internet. These disputes were more difficult to confidently predict played out both in and out of the Indeed, pundits and the popular media the endurance of the status quo. courtroom, with sophisticated spin ;alike have proclaimed the arrival of merchants on both sides casting the ‘“Web 2.0”. Whether Web 2.0 ought In light of this shift, and the expanding victims either as “poor, unremunerated ]properly to be distinguished from Web role of consumer-producers, the artists” or conversely, 1.0 is a moot point3, because there is question which presents itself is: was “disenfranchised music lovers”. ]no doubt that a fundamental shift has that early, triumphant, litigation by occurred in the way ‘consumers’ think incumbent content owners a portent of The originating claims in both matters J of, and use, the internet4. No longer things to come, or just an anomaly were brought when the popular use of , limited to sharing audio files, which would only delay the demise of file sharing technology was relatively consumers are armed with an outdated business models? new. At the time, much was made of impressive arsenal of expressive the new era in digital file sharing and The recent filing of a complaint by multimedia tools, which they seem manipulation: “Rip.Mix.Bum.” , media giant Viacom against Google5 happy to deploy in conjunction with proclaimed an advertisement for j gives us our first glimpse into the licensed and unlicensed copyright Apple computers. The prevailing ] future battles for control of the materials alike. climate encouraged users to cease distribution of copyright materials. being simply passive consumers of Another notable shift has occurred in Given the global jurisdiction of the information, and to become active Ithe content ownership landscape. internet, and Australia’s prominence agents in the creation (and Whereas in the Napster days, in copyright prosecutions, the purpose distribution) of their own audio-visual itraditional media content owners were of this article is to briefly summarise destinies. !battling ‘upstart’ companies with little 8 Computers & Law June 2007