On Remand: Wikipedia, The FBI, And Hitler? By Samantha Beckett

On Remand: Wikipedia, The FBI, And Hitler? By Samantha Beckett

(c) Image by Juri H. Chinchilla.

Two years ago, on March 13, 2012, the venerable Encyclopaedia Britannica announced that its 2010 print edition – 32 volumes and 129 pounds — would be its last. Going forward, the internet, not bookshelves, would house Britannica’s wisdom. This week, On Remand looks back at the strange legacy of encyclopedias and one electronic encyclopedia’s recent entanglement with the FBI — with a guest appearance by Hitler.
First published in Edinburgh, Scotland in 1768, Britannica’s print version lasted 244 years.  Owning a set showcased not only a family’s wealth, but also the family’s hopes that its Britannica-steeped children would move further up in society.  Despite its pedigree, however, for many generations Britannica encyclopedias were sold door-to-door.  As a result — and as shown by Monty Python – encyclopedia salesmen were more feared than burglars.
When Britannica announced it would cease publishing a print edition, it had already faced years of competition from Microsoft’s online encyclopedia Encarta. And by 2012, Wikipedia, the crowd-sourced, online, “free encyclopedia” was well established. While Britannica prides itself on careful editing and well-written articles authored by its stable of 4,000 expert contributors, Wikipedia is neither written nor edited by professionals. It is, however, updated continuously.  Wikipedia’s 30 million articles dwarfs the Britannica’s 120,000 – while requiring not an inch of shelf space or costing a penny. In addition to entries for each Supreme Court Justice and other legal luminaries from David Boies to David Lat, Wikipedia covers essential subjects like Klingon and toilet paper orientation….

Despite ranking as the sixth most popular website, Wikipedia has had its share of detractors. There have been concerns about its accuracy, and some of its content has been subject to “edit wars.” And, as reported in the New York Times in the summer of 2010, Wikipedia drew the FBI’s ire because of the inclusion of the FBI seal in Wikipedia’s FBI entry. In a letter to Wikimedia’s general counsel, Mike Godwin, the FBI asked Wikipedia to remove the image, claiming that Wikipedia’s use violated federal law. Godwin refused. Instead, he responded with a snarky lesson in statutory construction.
According to the FBI’s letter, Wikipedia’s use of an image of the FBI seal violated a law that makes it illegal to make or possess badges, identification cards, or other insignia of a U.S agency’s “design.” The FBI’s version misstated simplified the law to:  “Whoever manufactures, sells, or possesses any . . . insignia, of the design prescribed by the [Department head]. . . .”
Godwin’s response expressed his displeasure:

May we talk a little bit further about ejusdem generis and your creative editing of the statute?
***
Entertainingly, in support for your argument, you included a version of 701 in which you removed the very phrases that subject the statute to ejusdem generis analysis. While we appreciate your desire to revise the statute to reflect your expansive vision of it, the fact is that we must work with the actual language of the statute, not the aspirational version of Section 701 that you forwarded to us.

The doctrine of ejusdem generis (Latin for “of the same kind” – thanks again Wikipedia!), Godwin said, limits the meaning of “other insignia” to items like those already mentioned: badges and ID cards. And, as Godwin noted, badges and encyclopedias have important differences:  “Badges and identification cards are physical manifestations that may be used by a possessor to invoke the authority of the federal government. An encyclopedia article is not.”
Badges? Wikipedia don’t need no stinkin’ badges! Moreover, Godwin pointed out:

Even if it could be proved that someone, somewhere, found a way to use a Wikipedia article illustration to facilitate a fraudulent representation, that would not render the illustration itself unlawful. . . . [The cases] center on situations in which defendants represented themselves as federal authorities. I think you will be compelled to agree that the Wikimedia Foundation has never done this.

Apparently the FBI backed down. Wikipedia’s FBI entry still contains images of the seal. Meanwhile, both of the protagonists, David Larson, the FBI’s deputy general counsel, and Godwin have moved on. Larson, perhaps not surprisingly, has no Wikipedia entry, but Godwin’s 2010 letter congratulates Larson on his imminent retirement. Meanwhile, if Wikipedia can be trusted, Mike Godwin left Wikimedia for a position as a senior policy advisor at Internews. Interestingly, Mike Godwin’s Wikipedia entry also notes that he is the author of Godwin’s law, a phenomenon frequently observed in the ATL comments: “As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches 1.” I wonder which one I will be compared to. Probably both.
After 244 Years, Encyclopaedia Britannica Stops The Presses [New York Times]
Encyclopaedia Britannica Ends Print Run [L.A. Times]

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Samantha Beckett (not her real name) is an attorney with more than ten years of experience working in Biglaw. When not traveling back in time, she is most likely billing it. Her writing has been featured in state and federal courts across the nation and in the inboxes of countless clients, colleagues, and NSA analysts. She can be reached at OnRemand@gmail.com .