Open Communities and Closed Law

Joseph M. Reagle Jr.

What does the recent news of a Wikipedia CEO who is also a lawyer, an "oversight" function that makes hidden revisions to Wikipedia, and the threat of the Debian Project severing its relationship with its legally chartered non-profit have in common? These recent events demonstrate that open communities with a formal legal standing are a conflicted beast.

The sociologist Max Weber made an important observation of how leadership often shifts from a charismatic leader to a more bureaucratic form of governance as a community matures (Mommsen 1992:42); Wikipedia is no exception. An interesting question in the Wikipedia case is to what extent can the shift occur while decision making remains in the open, within sight and control of the larger community? The delegation of power from Jimbo Wales to the Mediation and Arbitration committees is an example of what Weber called "routinization." Both of these committees are open. However, in matters of law, maintaining openness is a difficult task. As Wikipedia has grown in size and repute the likelihood of the Wikipedia being subject to legal action has similarly grown. The tension between openness and closeness in such a community is no better demonstrated than by the WP:Office action (Wikipedia 2006).

On the Wikipedia one is expected to discuss the editing of an article with fellow contributors. Arguments are made in the open with reference to public policies. However, for those with a proprietary interest, this process of reasoned discussion can be circumvented via a call or letter to the "Wikipedia office." And, sometimes, rightfully so. What obligation did Seigenthaler (2005), someone completely unfamiliar with Wikis, have to edit the Wikipedia in order to remove the libelous claim that he was implicated in the assassination of a Kennedy? None. As Jimmy Wales (2006) wrote, "The problem we are seeing, again and again, is this attitude that some poor victim of a biased rant in Wikipedia ought to not get pissed and take us up on our offer of 'anyone can edit' but should rather immerse themselves in our arcane internal culture until they understand the right way to get things done."

However, unfortunately, the office mechanism can be abused by those pushing a non-encyclopedic POV (point of view), such as promoting (or censoring negative views of) a commercial product. If such people can't win their arguments on the merits of notability and neutrality, having their lawyer call the office might prompt an office intervention -- such as blanking or deleting the contentious article which should then be labeled with the WP:Office tag.

Something like WP:Office is an unfortunate though (probably) necessary mechanism whereby reasoned discussion is excepted so as to avoid legal problems. Yet, in an amusing and sad irony WP:Office soon became a red flag to those who dislike this intervention or otherwise like to make trouble for Wikipedia (e.g., copying sensitive or contentious materials off Wikipedia to continue to cause trouble). Whereas office actions were intended to quickly and quietly remove a potential liability, they became a flash-point. This led to the genuinely sad case in which office actions were taken without being labeled as such and a "good-faith" administrator was desysopped and blocked indefinitely because he had reverted the hidden landmine of an unlabeled office action. (Fortunately, his response (Moeller 2006) was an exemplar of Wikipedia tact and his position was soon restored.)

Recently, the realities of this tension between open collaboration and legal action are indicated by two announcements: the appointment to a CEO position (Foundation 2006) who will also act as general counsel, and the deployment of a "oversight" (revision hiding) feature (Wikipedia 2006) which permits edits to be hidden from an article's history page. Legal threats are clearly a top priority.

Edgar Schein (2004) argues that organizations are shaped by the crises they face in interaction with the external environment and how those events are internally integrated within the organization. This integration is not always smooth or successful, particularly for an open community. Another example of this has been the recent dispute in the Debian GNU/Linux distribution project. In a thread entitled Who can make binding legal agreements (Goerzen 2006), the Debian community came into conflict with the SPI Board, it's own legally chartered "umbrella"! Can SPI preempt Debian decision making processes? Can Debian decisions foist liability upon SPI it is unwilling to accept? These are difficult decisions when we lack a legally robust and safe means of the open collaboration that Wikipedia and Debian represent. This has lead Larry Sanger (2005wcf) to argue that Collaborative Free Works Should Be Protected by the Law; a proposal that deserves serious consideration.


 Foundation, W. (2006). Resolution CEO. Retrieved on June 09, 2006 15:59 UTC from < >.  

Goerzen , J. (2006). Who can make binding legal agreements. Retrieved on June 6 2006 from <>

Moeller, E. (2006). Indefinite block and desysopping by User:Danny. wikien-l. Retrieved on April 19, 2006 from <!%20gmail%20!%20com >.  

Mommsen, W. J. (1992). The political and social theory of Max Weber: collected essays. University of Chicago Press, Chicago.

Sanger, L. (2005). Why collaborative free works should be protected by the law. Slashdot. Retrieved on December 07, 2005 from < Sanger/journal/123625 >.  

Schein, E. H. (2004). Organizational culture and leadership. John Whiley & Sons, San Francisco, 3rd edition. 

Seigenthaler, J. (2005). A false Wikipedia 'biography'. USA Today. Retrieved on December 01, 2005 from < >.  

Wales, J. (2006). Re: should not be written by an interested party. wikien-l. Retrieved on May 03, 2006 from < >.  

Wikipedia (2006a). Wikipedia:office Actions. Wikimedia. Retrieved on April 06, 2006 14:30 UTC from < >.  

Wikipedia (2006b). Wikipedia:wikipedia Signpost/2006-06-05/Oversight. Wikimedia. Retrieved on June 09, 2006 15:56 UTC from < >.