Wikitravel and Wikimedia on a collision course

Building a service around crowd-sourced information is a difficult undertaking — even top-tier projects like OpenStreetMap and Wikipedia have had their share of troubles, particularly when it came to steering the community of volunteer contributors. Now, the owner of the once-dominant travel wiki Wikitravel is squaring off against its former community members in an acrimonious dispute that has already resulted in multiple lawsuits.

At the root of the case is the desire of some former Wikitravel contributors to start a new travel-oriented site and import the original site's data. Wikitravel consists of user-contributed tourism and travel information for sites around the globe; as with many crowd-sourced projects, the data is licensed to permit re-use: Wikitravel uses Creative Commons Attribution-ShareAlike (CC-BY-SA).

The site was founded in 2003, and was sold to its current owner Internet Brands (IB) in 2006. IB owns a number of unrelated web properties, but it initially pledged to the Wikitravel community that it would keep things as it found them, and limit its revenue-seeking efforts to "unobtrusive, targeted, well-identified ads." Like Wikipedia, Wikitravel's content was divided into language-specific subdomains, each run more-or-less independently by a local contributor community. After the sale to IB, the German and Italian Wikitravel communities promptly left and started the rival site Wikivoyage, but other language communities stayed, including the largest, English.

Of course, the unobtrusive-advertising pledge was not a legally-binding contract, and over the years the ads on Wikitravel became more intrusive (including animated Flash ads, which were frequently flagged by users as being against the site's advertising policy), which led to dissatisfaction among the remaining editors. The community also complained that IB did not respond to bug reports, and allowed the version of MediaWiki running the site to languish several years without updates. But the final straw came in a 2011 proposal to integrate sponsored hotel-and-travel booking elements directly into article pages.

Opinion might vary as to how "intrusive" any given monkey-punching Flash ad is, but the booking tool seemed to detract from the site's purpose as an unbiased information source. Volunteer Peter Fitzgerald, like many others, voiced his opposition, saying in the advertising policy discussion:

Nevertheless, IB proceeded with integration of the booking tool in early 2012.

In April, Wikitravel volunteer editors decided that they had had enough, and reached out to Wikimedia (the organization behind Wikipedia and related sites) with a proposal to start a new travel wiki, based on a merger of content from Wikivoyage, Wikitravel, and a few smaller efforts. The proposal became a formal "request for comments" and was subsequently approved by Wikimedia's board following a public vote.

IB, however, did not greet the proposal with similar enthusiasm. According to Wikitravel contributor Jani Patokallio, IB responded first by removing discussion of the migration from Wikitravel's talk pages, blocking some participating users, sending threatening messages to others, and removing the administrator privileges of several. On August 29, IB stepped up its response significantly when it filed a lawsuit against James Heilman and Ryan Holliday, two volunteer Wikitravel contributors who participated in the Wikimedia migration plan. The suit charges Heilman and Holliday with trademark infringement, trade name infringement, unfair competition, and civil conspiracy.

The filing [PDF] is eleven pages of lawyerly prose, but the gist of it is the accusation that Heilman and Holliday offered a "competitive website by trading on Internet Brands’ Wikitravel Trademark" — which seems to mean that they used the name Wikitravel when proposing and discussing the migration to MediaWiki. The suit also repeatedly refers to the rival site as "Wiki Travel Guide," a name that IB claims infringes on its trademark. Nevertheless, no actual site has yet resulted from the migration proposal, and only on October 16 did the new project decide on a name — which will evidently remain Wikivoyage. Patokallio examined the suit in detail in another post, including the trademark infringement claims.

Claims and countersuits

Notably, the lawsuit does not take issue with the right of the departing contributors (or anyone else) to take Wikitravel page content and import it into a rival project, but it does suggest (in claim 31) that the volunteers are misappropriating the CC-BY-SA-licensed content by not properly attributing Wikitravel as its source. This is still a problematic claim in light of the fact that, when the suit was filed, the Wikimedia-run site did not yet exist. But Creative Commons highlighted the licensing dimension of the suit in a post on its blog, where it observed that if the licensor of CC-BY-SA content (in this case, IB) "wants to completely disassociate themselves from particular reuses, they have the right to request that all attribution and mention of them be removed, and those reusing the work must do so to the extent practicable." Consequently, if IB so wished, it could request that Wikitravel not be mentioned on the new site as the source of the imported content.

Such an action would presumably stop the alleged trademark infringement at the new site, were it not that IB concurrently claims that the new site fails to properly credit Wikitravel as a source. To that, the EFF post also notes that even if Wikitravel or another licensor feels that it is not receiving proper attribution for a derived work, the license only requires the creator of the derivative work to provide attribution in "a manner 'reasonable to the medium or means' used by the licensee, and for credit to be provided in a 'reasonable manner.'" The Creative Commons post does not go into detail, but the suggestion is that this is simple to do — perhaps through the wiki engine's existing revision tracking system at import-time.

Wikimedia took an even harsher view of the lawsuit against Heilman and Holliday, calling it a clear attempt to "intimidate other community volunteers from exercising their rights to freely discuss the establishment of a new community" that ultimately seeks to prevent Wikimedia from starting a competing project. The IB filing does mention Wikimedia, though briefly, alleging that it may add Wikimedia and other "co-conspirators" to the list of defendants at a later time. Wikimedia then sued [PDF] IB on September 5 seeking a declaratory judgment that IB has no right to impede or disrupt the creation of a rival travel wiki.

Wikimedia's suit seeks to recover attorney's fees for the defendants, but it primarily seeks relief by asking the court to keep IB from interfering either in the import of data from the Wikitravel site or in communication between Wikitravel contributors — including ex-contributors. Holliday has taken proactive measures, first seeking to transfer the lawsuit from state to federal court, then seeking [PDF] a dismissal of the case under anti-"Strategic Lawsuit Against Public Participation" (SLAPP) legislation. A SLAPP suit is one in which the plaintiff is primarily trying to censor or intimidate the defendant (as opposed to one where it actually believes it will win at trial). IB denied that assertion in an October 16 response [PDF], and argued that the case is a legitimate dispute among business competitors. Holliday has until October 22 to file a response to this latest response, and at present the first court date is scheduled for November.

Where to now?

Reading through it, IB's suit does not seem to have much depth. It repeatedly refers to the rival travel wiki site (and in particular to the "confusingly similar" name of that site) in the present tense, despite the fact that the site and its name did not exist when the suit was filed, and it couches its allegations in business terms (such as claiming the defendants are "profiting" from IB's trademark and have subsequently been "unjustly enriched"), despite the projects' not-for-profit nature. The "civil conspiracy" charge is also puzzling, and appears to amount solely to the fact that the listed defendants discussed the project. But then again, one can rarely predict where a lawsuit will head; IB is no stranger to acrimonious litigation — it is currently embroiled in another suit against former employees for writing a rival web discussion forum package similar to IB's vBulletin product.

Alienating one's users and crowd-sourcing contributors is rarely a wise move; actively suing them in addition probably guarantees that Wikitravel (at least under IB's care) is doomed. But that alone does not guarantee success for the new Wikivoyage project. Should the lawsuit be dismissed or turn out in the new project's favor, the new travel wiki project will still have a technical hurdle to overcome. Although IB does not dispute the license under which Wikitravel's content is published, the company has never provided database dumps or other convenient ways to export the data in bulk. That leaves page-scraping and other tedious procedures to extract the thousands of pages and uploaded media, not to mention the extra challenge of removing spam and vandalism (which have been on the rise since the exodus of the main Wikitravel editor community).

A still bigger hurdle might be attracting the eyes of site visitors — the web is littered with failed attempts to fork popular properties, and even a powerful advocate like Wikimedia does not guarantee success. For example, most of us have probably forgotten about Amazon's "Amapedia" project, which attempted to build a crowd-sourced product review wiki. Despite being directly integrated with the web's number one retailer, it flopped.

No doubt Wikimedia is the largest player in the open data and crowdsourced-material market, but that does not mean all of its projects can automatically unseat pre-existing competitors; consider the relative mind-share enjoyed by its ebook library Wikisource compared to Project Gutenberg. The vast majority of the old Wikitravel editors seem to already be on board with the new effort, which is vital — but it could still be a long, rocky road ahead.