Wikipedia:Final exam for wikilawyers

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Instructions: Typewrite or print neatly in the space provided. Answer all questions to the best of your ability. Your responses may be descriptive (what the law is), prescriptive (what you think the law should be), or both. If you apply the law of any particular jurisdiction, please say so and explain why you chose that law.

Question 1[edit]

A living person who is the subject of a biography on the English Wikipedia would prefer that the article about him not exist. He does not assert that the article currently contains any false or defamatory statements, but claims that he is not a notable or prominent person and that as such, the article is an invasion of his privacy. The subject attempts to have the article deleted through Wikipedia processes, but an AfD is closed as "Keep" and OTRS advises there is nothing they can do. Does the subject have any legal recourse? Should the subject have legal recourse? If you would need additional facts to answer this question, what are they? (20 points)

Question 2[edit]

Many real-world court decisions in recent years have cited Wikipedia articles.

  • (A) Was the citation to the Wikipedia article jet ski in this decision by the Utah Court of Appeals appropriate? Did the court properly assess the reliability of Wikipedia in footnote 1 to its opinion? Do you agree with the additional comments in the concurring opinion? (9 points)
  • (B) Was the citation to the Wikipedia article human branding in the dissenting opinion in this case decided by New York's Appellate Division, First Department appropriate? On this question, do you agree with Justice Tom's majority opinion or Justice Saxe's dissent? (Focus on the citation to Wikipedia, not the merits of the case.) (8 points)
  • (C) Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit cited Wikipedia in his opinions more often than any other judge. Locate an opinion in which Judge Posner has cited Wikipedia. Discuss whether the Wikipedia article supported Judge Posner's point and whether he made a good choice in citing Wikipedia, rather than some other source, to support that point. (8 points)

Question 3[edit]

The English Wikipedia Arbitration Committee is sometimes informally referred to as Wikipedia's "Supreme Court." Arbitrators who are also lawyers or law students have cautioned that this comparison is misplaced or overblown, in that the ArbCom does not have the functions of a court, and certainly does not have the importance of a real-world court. Nonetheless, some broad parallels can be drawn between the types of decisions that Wikipedia arbitrators make in accepting and voting on cases, and the decisions made by the judges of a multi-member court with a discretionary jurisdiction.

Each of the situations described below has occurred to Wikipedia arbitrators. For each, identify a comparable situation that confronted a judge or justice of a real-world court, describe how the judge or justice dealt with the situation, and discuss how you think the arbitrator should have acted.

  • A. An arbitrator volunteers to draft the Committee's decision in a pending case. The arbitrator feels strongly about what the proper result of the case should be. In discussion on the workshop and the mailing list, it becomes obvious that a majority of the arbitrators do not support that result. The drafting arbitrator must decide whether to (1) prepare the draft decision that he believes in, even though it will be voted down by the majority; (2) prepare a draft decision that comes as close as possible to what he supports, even though it is not exactly what the drafter wants, in an effort to achieve a majority; (3) prepare a draft that will enjoy clear majority support, even though the drafter disagrees with part of it; or (4) relinquish the drafting assignment and allow another arbitrator to prepare the draft. (9 points)
  • B. The Arbitration Committee is about to announce an action that a single arbitrator strongly disagrees with. For proper reasons, most of the discussion has taken place on the arbitrators' private mailing list rather than on-wiki. The arbitrator must decide whether to go along with supporting the Committee's action, publicly dissent, or not vote at all. (8 points)
  • C. The Arbitration Committee has voted for Rule X in a previous case. Arbitrator A supported Rule Y instead. A new case comes along that is similar to the previous case, so that Rule X would apply to it. Arbitrator A must decide whether to support a decision supported by Rule X, or to cast her own votes in accordance with Rule Y, even though the Committee previously rejected Rule Y. (Although the Arbitration policy provides that the ArbCom is not bound by precedent in the sense of stare decisis, assume that the Committee generally does give some deference to principles from its prior decisions.) (8 points)

Question 4[edit]

You are an assistant district attorney (prosecutor) in New York and are assigned to investigate a local resident's complaint. The resident explains that he is an administrator on English Wikipedia, and that he chooses to edit under a screen name without disclosing his real-world identity, as is permitted by Wikipedia policy. Recently, a critic of Wikipedia has posted on a Wikipedia criticism site that she has just uncovered the administrator's identity (using lawful means). The critic states that unless the administrator either posts his real name on-wiki within one week or resigns, she will publicize the administrator's name, location, employer, and photograph on her own website, with the goal of pressuring the administrator into resigning. The critic's website is harshly critical of Wikipedia and of people connected with it. In the past, the website has suggested that certain types of Wikipedia editing may be illegal, but it does not say that at present. The critic, whose identity is known, lives in the United States, but not in New York.

You are asked whether the critic has committed "Coercion in the Second Degree", a misdemeanor, as defined in New York Penal Law § 135.60.

Discuss the legal and practical arguments for and against prosecution, including the critic's potential defenses. (15 points)

Question 5[edit]

An editor uploads a photograph and uses it in an article on English Wikipedia. The photograph was taken in Ruritania in 1920. It depicts a prominent historical figure. Under United States law, the image is in the public domain and undisputedly free. However, an editor knowledgeable about Ruritanian law explains, without contradiction, that (A) the copyright term in Ruritania is 140 years, and (B) it is a crime in Ruritania to publish a photograph of an identifiable person without his or her consent, or if deceased then the consent of his or her heirs. The heirs of the historical figure are known to object to publication of any images of this person unless a royalty is paid for each use. What legal risks, if any, would either Wikipedia or the editor posting the image face if the image is kept? (15 points)