From: "Paul Levy" <plevy AT citizen DOT org>
Date: April 17, 2009 3:42:32 PM MDT (CA)
To: "Mike Godwin" <firstname.lastname@example.org>
Subject: Upshot and status
I gather that Kidall made a propsoal through his counsel that was not acceptable to Wikimedia Foundation.
So, the case does seem to be headed to litigation, although, as I told you on the phone, I don't think Wikimedia's position is tenable in the Ninth Circuit and we are not going to let Wikimedia "litigate" this case in the UDRP given the UDRP's overwhelming bias in favor of rights holders.
So, if you file a UDRP complaint, we will file for a declaratory judgment promptly so that we can be sure that the case is decided under US trademark law and the First Amendment and not under private law created for the benefit of trademark owners. As sad as I am to have to hold Wikipedia to the First Amendment and fair use rights of its non-commercial critics, I will have no compunction about doing so. I hope it does not come to that. I am sure it is not in the interest of Wikimedia to add the suppression of fair use and free speech to its brand identity.
So, I have put a call into Douglas Isenberg to apprise him of my entry into the case, and to see whether he can explain to me how the case is distinguishable from Bosley. Would be glad to talk to you again, though.
Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009