I’ve written a guest post for O’Reilly’s Tools of Change for Publishing (TOC) blog:
And for a less-technical version, see Gus Balbontin’s earlier post on solving customer problems.
I’ve written a guest post for O’Reilly’s Tools of Change for Publishing (TOC) blog:
And for a less-technical version, see Gus Balbontin’s earlier post on solving customer problems.
TL;DR: Google is trying to position its Google Glass headset as a consumer device with the cool factor of an iPhone. But its initial users are likely to be businesses, and they will need to be convinced about the value it will deliver, not its appearance.
We fling about the word “revolutionary” with wild abandon these days. The primary hardware innovation of the Apple iPhone, for example, was really just an evolutionary step. Replacing a keypad with a touchscreen meant that, instead of holding your phone in one hand and watching its screen as you tap the keys with the other, you could now hold your phone in one hand and watch its screen as you tap the screen with the other. As we know, this seemingly subtle change proved to radically enhance the usability of the phone and set the benchmark for today’s smartphones — but they’re still smartphones.
Google Glass, on the other hand, is genuinely revolutionary piece of kit. As the first real consumer-grade attempt at an augmented reality computer, it completely dispenses with the screen, the keypad and even the entire “holdable” device itself. This means throwing out every user interface paradigm developed since the 1970s, when computers started to look like today’s computers, and building something entirely new to replace them. Gulp?
Yet Google appears to be petrified of something different: that the device will be perceived of as “dorky”. As you can see from the picture to the right, I can personally attest that this fear is not entirely misguided: real-life wearable computers (and their wearers) do tend to fall more on the side of “geeky” than “cyberpunky”. Google’s marketing to date has thus consisted nearly entirely of increasingly odd antics to make it “cool”: stunt cyclists performing antics on the roof of a convention centre, skydivers leaping out of airplanes and an entire fashion show with slinky models strutting their stuff.
But let’s step back in time. Imagined being offered the chance to clip a unwieldy, heavy plastic box to the waistband of your bell-bottomed pants, bolt two bright-orange foam sponges over your ears with a shiny metal hairband, and string these bits together with wire. Would you pay good money for this fashion disaster?
If it’s the 1970s, hell yeah: the Sony Walkman was a runaway hit. Never mind the clunky appearance, the mere fact that it for the first time let you listen to music anywhere was worth the sartorial price of admission. And without that ability, the minor miracles in miniaturising and ruggedizing of the unwieldy tape decks of yore necessary to produce the Walkman would have gone to waste.
But Google isn’t talking, at all, about what you can or, more importantly, could do with the Glass: their famous promotional video shows the capabilities of various existing Google apps doing precisely what they do now, only on a heads-up display. Sure, the user interface has changed radically, but the capabilities have not.
So will those existing apps on Glass be slick enough to make it a must-buy? Despite Google’s all-star developer team, their track record for customer-facing products is distinctly spotty and the sheer challenge of designing an entirely new way to interact would perplex even Apple. The little we know of the hardware also indicates that some technologies considered key to heads-up interaction, notable eye tracking, are not going to be a part of the package. It’s thus exceedingly unlikely that the first iteration of Glass’s UI will nail it, and Google’s reluctance to reveal anything about the interface’s actual appearance and behavior strongly hints that they have their doubts as well.
Odds are, then, that Google Glass will be a dorky-looking product that offers an inferior interface for the kind of things you can do easily with a modern mobile phone, which has, after all, evolved for 20-plus years in the marketplace. This is not a recipe for success in the consumer marketplace.
The solution? Sell the Glass on what it can do that nothing else can.
Five things you can do with Glass that you can’t with a mobile phone
1) Simultaneous interpretation. Hook up two Glasses so they can translate each user’s speech and beam it over to the other, where it is displayed as subtitles. Presto: you can now hold a natural conversation and track all the nonverbal communication that would be lost if you had to glance at your smartphone all the time.
(Not coincidentally, I wrote my master’s thesis on this back in 2001. My prototype was a miserable failure because computer miniaturization, speech recognition and my hardware hacking skills weren’t up to snuff, but I think Glass provides an excellent platform for producing something usable.)
2) Tactical awareness. A mobile phone app that shows the location of alerts and/or other security guards would be rather useless: what are you going to do, pull out your phone and start browsing your app directory when the robbers strike? The same application for an always-on Glass, on the other hand, is a natural fit.
(This, too, is by no means a new idea. MicroOptical’s heads-up display, the direct predecessor of the optics behind Google Glass, was the result of a DARPA grant for the US Army’s Land Warrior project. The pathetic fate of that project, which ran from 1994 before being cancelled in 2007 and kicked off again in 2008 without ever accomplishing anything of note, also hints at why Google is, probably wisely, steering far clear of the bureaucratic morass of military procurement.)
3) Virtual signage. Imagine an enormous warehouse filled with a variety of ever-changing goods, along the lines of an Amazon or UPS logistics center. Right now, to find a given package in there, you’d have to “look it up” on a PC or smartphone, get a result like “Aisle C, Section 17, Shelf 5” and match that to signage scattered all over the place. What if your Glass could just direct you there with visual and voice prompts, and show you the item number as well so you don’t have to print out and carry slips of paper? The difference sounds almost trivial, but suddenly you’ve freed up a hand and reduced the risk of getting run over by a forklift as you squint at your printout.
(Back in 2004, commercial wearable computing pioneers Xybernaut sold pretty much exactly this idea to UK grocery chain Tesco, but their machines were clunky battery hogs so it didn’t pan out too well. Xybernaut’s subsequent implosion after its founders were indicted for securities fraud and money laundering didn’t help.)
4) Surgery. Surgical operating theatres are filled with machines that regulate and monitor and display a thousand things on a hundred little screens, with tens of bleeps and bloops for various alerts and events. What if the surgeon could see all that information during a complex procedure, without ever having to take their eyes off their actual work?
(Once again, some products that do this already exist, but Glass has the potential to take this from an expensive, obscure niche to an everyday medical tool — once the FDA gets around to certifying it sometime around 2078, that is.)
5) Games set in reality. Mashing up reality and gaming is hard: countless companies have taken a crack at it over the past decade, and all foundered on the basic problem of having to use a tiny little mobile display as the only window into the game world. As Layar’s lack of success indicates, running around holding a phone in front of your face isn’t much fun, and relying on location alone to convey that there’s an invisible virtual treasure chest or tentacle monster in a physical alleyway stretches the imagination too much. But with an augmented reality display, this will suddenly change, and Valve is already making a big punt on it, although Michael Abrash rightly cautions against setting your expectations too high.
Notice one thing about the first four ideas? They’re all business applications, whose customers will willingly tolerate a clunky, somewhat beta interface as long as they can still get real dollars-and-cents value out of it. This is how both PCs and mobile phones got started, and once the nuts and bolts are worked out, the more mature versions can be rolled out to general consumers.
And once Glass (or something like it) reaches critical mass, we’ll suddenly have streets full of people with network-enabled, always-on video cameras, and a rather scary world of possibilities opens up. Add object recognition, and you can find litter, vandalism, free street parking spots. Add data mining, and you can spot the suddenly crowded new cafe or restaurant, or catch the latest fashion trend as it happens. Add face recognition, and you can find missing persons, criminals and crime suspects.
To Google’s credit, they are partnering with other developers almost from day one, and there will undoubtedly be even better ideas than these largely unoriginal off-the-cuff thoughts. We can only hope that the idea is spotted and executed well enough to turn it into Glass’s killer app… but if Google keeps on being awfully coy about Glass’s capabilities, limiting access to dinky two-day hackathons and envisioning Google+ as the main use case, that day may still be some way away.
Tomorrow, January 15th, marks the official launch date of Wikivoyage, the new free travel guide from the Wikimedia Foundation. Born from a split with Wikitravel, here are six reasons it’s already better than its ancestor.
So what does this mean in practice?
Short term impact
As part of the launch, every Wikipedia page that once pointed to Wikitravel will now start pointing to Wikivoyage instead. In addition, every Wikipedia page will temporarily be festooned with a notice pointing to the site, which means a cool 6.5 billion ad impressions a day. The traffic boost from these will be massive, so you can expect to see a lot more Wikivoyage in your search results quite soon.
This is not to say it’s all peaches and cream, as the site remains a work in progress. For example, while merging Wikivoyage’s image backend with Wikimedia’s Commons allowed access to a wealth of new pictures and illustrations, it also means that several thousand pages now have broken image links. These are being fixed one by one, and the backlog has already been cut in half since mid-December, but plenty of work remains.
Long-time readers may also recall that there was a complicated tangle of lawsuits between Wikitravel’s owner Internet Brands (IB), some of its erstwhile users, and the Wikimedia Foundation. The first lawsuit, by Internet Brands against two Wikitravel users, was dismissed on November 28, 2012, and although they could technically try again in state court, IB appears to have given up (unsurprising, as they had no case). The second and arguably more meaningful lawsuit between the Wikimedia Foundation and Internet Brands is still rumbling on though, with both sides stomping around the sumo stadium, slapping thighs and grunting menacingly, but no court date set. Keep an eye on the Wikimedia blog for updates; nonetheless, the Foundation has stated that this will have no impact on Wikivoyage itself.
Long term impact
While I have no doubt that Wikivoyage will surpass and supplant Wikitravel, its impact on the wider travel industry remains an open question. For Wikivoyage to become as globally ubiquitous as Wikipedia, at least some of these hard problems will have to be cracked:
I should probably underline that I’m not trying to rag on the Foundation with those latter two points, they’re operating quite sensibly with the constraints they have as a non-profit organization.
This also explains why, as a travel industry insider myself, I don’t think Wikivoyage poses an existential threat to TripAdvisor, Google or, for that matter, Lonely Planet: it’s simply not playing the same game. Quite the contrary, it promises to be a great resource of information for everybody. In the same way that Google pulls in data for Wikipedia for its search results and Lonely Planet’s website uses images sourced from Wikimedia Commons, other travel guides will be able to complement their own content with additional data from Wikivoyage.
Before I joined Lonely Planet, I ran a little startup called Wikitravel Press, which packaged up Wikitravel articles and sold them as print-on-demand books. Despite revolutionary tech, a great team and hard work, it didn’t pan out the way we’d hoped, and this is the story of the lessons I learned the hard way.
Back in 2005, I was a vagabond telecoms consultant, flitting around the world setting up messaging systems for mobile network operators. I loved the travel, to the extent of willingly giving up my apartment and living out of a rollaboard suitcase for a year and half, but endlessly hashing through the requirements-deploy-test-rinse-repeat cycle was starting to get old and I found myself spending more and more time on Wikitravel.
And at some point, I had an epiphany. One of Wikitravel’s goals since its earliest days was to produce printable guides. The volume and quality of content was starting to reach the point where the best destination guides were book-sized. What if I could extract the content, automatically lay it out into PDF, and publish it as an actual book through a print-on-demand service like Lulu? Compared to existing guidebooks, the advantages seemed vast:
Lesson #1: Do not base your startup on more than two innovations. >>
Pulling off the company would have required 1) turning a free-for-all wiki into publishable content, 2) completely automating the transformation of that digital content into printed books, and 3) building a new way to distribute these fresh but very perishable books. If any of these legs failed, the stool would topple over.
(The credit for that quote, by the way, belongs to someone else; I remember seeing it back in 2007, shortly after launch, and thinking, “Crap”. But I’m unable to track it down, anybody know who said it first?)
I hacked together enough of a prototype with LaTeX and a forked version of Deplate to convince myself that the primary technological challenge, turning Wiki pages into a book-like PDF, was solvable, and then got in touch with Wikitravel founders Evan and Michele to see if they were interested. They were, very much so, but there was a major catch: they were right in the middle of selling the website to Internet Brands (IB), and I had to cool my heels until that was all sorted out.
Now Evan and Michele, being smart cookies, had already made a point of retaining print rights to the Wikitravel brand. However, Internet Brands still had a say on who could use those rights and how, so we had to fly over from Singapore and Montreal to Los Angeles to meet IB, pitch the idea, draft agreements, get lawyers to look it all over etc, all an unnecessary cost and distraction compared to if had it been just the three of us. The deal we came to was fair enough, and essentially boiled down to IB giving us free ad space on the site and reasonably free reign in print in exchange for a cut of any future profits. But here, too, lay another seed of destruction.
Lesson #2: Do not rely on a third party that does not share your goals and interests. >>
For Wikitravel Press, the support of Internet Brands was critical: without it, there was no brand, and without the brand there was no company. (The very name of the company relied on an Internet Brands trademark!) But for Internet Brands, Wikitravel the site was just one brand in a stable of dozens, and a dinky little appendix to that site producing no revenue was at the absolute bottom of the priority list. We were now stuck: they had negotiated the initial agreement because legally they had to, but once the ink on that was dry, we would have absolutely zero leverage with them until and unless we started raking in serious profits.
Nevertheless, we signed the agreement and the next year passed in a blur. I quit my job and started doing the million and one things needed to get this off the ground. We set up Wikitravel Press, Inc in Montreal, Evan and Michele’s hometown. (I would have preferred Singapore, a considerably more business-friendly locale, but for Internet Brands even Canada was rather exotic.) Since the initial costs were low, we opted not to pursue venture capital, financing it ourselves.
On the technical side, I had to turn the engine from a crude prototype into something solid enough for production use, wrap it with a user interface that editors around the world could use, and integrate its output into Lulu. Mark Jaroski whipped up an inspired piece of hackery that pulled street data from OpenStreetMap, mashed it together with Wikitravel listings and spat out printable guidebook maps. We sourced a design for the books (hat tip to TheAgence), found one of the three people on the planet who understood the dark arts of LaTeX templating well enough to automate the layout (the brilliant Alistair Smith of Sunrise Setting), built pricing and royalty models, experimented with book formats, and more.
And, of course, we had to find some people to actually write the books. Our ultimate goal was always to allow people to print anything they wanted whenever they wanted, but Wikitravel’s content quality was too uneven for that, and neither was our technology up to the challenge. So we compromised: we selected popular, well-covered destinations, put editors in charge of maintaining them, published manually-reviewed monthly updates to each title and paid the editors a royalty on sales for their troubles. Professional travel writers unsurprisingly steered well clear, but there were enough enthusiastic amateurs on Wikitravel that recruiting for the first few titles was not a problem.
On February 1, 2008, we launched Wikitravel Chicago (by Peter Fitzgerald and Marc “Gorilla Jones” Heiden) and Wikitravel Singapore (by myself) with a flurry of publicity, with coverage in Boing Boing, Gadling, and a good many more travel and tech sites. Sales spiked nicely in the first few days, but very soon tapered off into pathetic volumes that were far less than even our most pessimistic estimates. What had gone wrong?
Lesson #3: Validate your sales projections before you launch. >>
It seems inconceivable to me today, sufficiently so that I’m rather embarrassed to type this, but we hadn’t actually tested, at all, our conversion path with real, live customers. We had simply blithely assumed that X% of visitors to Wikitravel pages with ads would click on to the Wikitravel Press site, and that Y% of those would go on to buy the book. Guess what? People browsing Wikitravel were, by and large, not interested in buying it as books; and of those that did make it to the Press and clicked on the “buy” links, another large percentage were turned off by having to create new accounts on Lulu, type in credit card details and addresses, and then pay hefty shipping fees, especially if outside the US. Doing a quiet public beta before launch would have alerted us to this at least half a year earlier.
So there we were, with a gut-shot business plan bleeding all over the floor, and we had to do something fast to increase our distribution. I dabbled a bit with Google AdWords and other forms of online advertising, but the brutal maths of the publishing industry made buying readers impossible: with sensible keywords costing at least $0.50 a click and an average profit margin of just $5-7 per book, we would have needed a conversion rate of nearly 10% just to break even, clearly an impossibility.
Distributing to conventional bookstores was also out of the question, We did not have the money, warehouse space, sales network and more to start doing large print runs, hawking them to book stores, dealing with returns, etc, and even if we had, this would have obliterated our primary competitive advantage of speed.
The one avenue open to us was distributing to online bookstores, and the thousand-pound gorilla both then as now is Amazon. Lulu had an embryonic Amazon distribution option, but not only would it have sliced our already meager profit margins in half, using it would have required new ISBNs for every edition. And since every online book shop on the planet uses ISBNs to uniquely identify books, all reviews, sales ranking etc tied to Wikitravel Singapore, February 2008 would be lost the instant it was pulled off the virtual shelf and replaced by Wikitravel Singapore, March 2008, so this was simply not an option. (Not to mention that, in low volumes, each ISBN costs $27.50 a pop.) We looked briefly into selling Wikitravel as a magazine, with an ISSN instead, but the bureaucracy for getting those was even more fearsome and, again, for every bookseller on the planet, a magazine is a completely different beast to a book and would not show up in searches for the other. Was our revolution in the making about to be scuppered by a standard drafted in 1970?
Lesson #4: There are often practical workarounds for theoretical impossibilities. >>
But we found a way. Amazon had recently launched its own consumer-facing print on demand site CreateSpace, which is tightly integrated to the Amazon bookstore, including key features like free shipping, same-day printing and, crucially for us, its own pool of pre-allocated ISBNs that could be retained through updates of the book. In theory, you’re supposed to change the ISBN for every “substantial change of text“, but CreateSpace did not enforce this and we were more than happy to leap through the loophole.
So we shifted the entire operation to Amazon, which entitled, among other things, resizing the book’s layout, templates, covers etc to accommodate Amazon’s different page size. And whereas Lulu had a fairly hands-off approach and a rudimentary API that could be automated to a fair extent, Amazon offered only two choices. You could go with CreateSpace, designed for technically clueless wannabe writers and thus only drivable through an infuriatingly slow web interface, coupled with a manual validation process where every single page of every single edition was scrutinized by some half-starved third-world peon and, more often than not, summarily rejected for infractions like the cover saying “Singapore – Wikitravel” when the book title was “Wikitravel Singapore”. Alas, the only other option was BookSurge, designed for “real” publishers bulk uploading PDFs of old books that already had previously assigned ISBNs, and hence entirely unamenable to our reuse-ISBN-for-next-edition dodge.
But we gritted our teeth and soldiered on with CreateSpace, and Wikitravel Press books went live on Amazon in November 2008. Sales perked up immediately, and it was time to start expanding.
Once up on Amazon USA, the obvious next place to distribute was Amazon’s other markets: Canada, UK, Germany, Japan, etc. However, publishing remains intricately tied up in geography, and endless rounds of discussion with Amazon Europe produced no results — at the time, the only print-on-demand service on offer in Europe was BookSurge, and that didn’t play nice with our titles. (This has since changed.) And while CreateSpace offers an “Expanded Distribution” program that, in theory, allows sales through Barnes & Noble and online retailers, library sales programs etc, there’s no real way to promote your books on those sites. In practice, enabling it meant only that random online bookstores you’ve never heard of picked them up, algorithmically assigning insane prices in the vain hope that some lunatic would buy them. (Case in point: this listing for our Paris guide, which not only hawks a no-longer-existent product, but wants $216 for it.)
So we were stuck in our little Amazon bubble, and the only way forward was to produce more titles, which meant finding more editors to create and maintain them. Alas, our process required a trifecta of uncommon traits: a mastery of Wiki markup, a willingness to work unpaid for a long period to initially prep the book for publication, and the tolerance to deal with unpredictable royalties once the book did hit the virtual shelves. There were no realistic technical solutions to the first, with MediaWiki WYSIWYG remaining a pipe dream despite years of effort by the Foundation, and we were unable to pay advances because we could not accurately forecast book sales. In the end, only nine titles made it all the way through, with quite a few left lying on the cutting table in varying states of completion.
Lesson #5: Scaling technology is hard, but scaling people may be impossible. >>
Unable to scale people, we turned to scaling technology instead: instead of manual editing, why not automate the whole process instead? The feeble jaws of our engine were not up to the task of digesting the whole of Wikitravel, but at Wikimania 2008 in Cairo I had been introduced to German brainiacs PediaPress, whose fearsome mwlib parser beat the pants off ours and could eat the entirety of Wikipedia for lunch. They produced an awesome demo of a Wikitravel book, and next year I flew down to the Frankfurt Book Fair, where we shared a stand, drank beer and dreamed big.
But that dream stayed a dream, because there were two ways to make this happen, and both were blocked by limitations outside out control.
Lesson #6: A business that is not growing and not paying your rent is not a business. >>
It was surprisingly tempting to just leave it be and pretend that all was good, and in retrospect I wonder how many times I answered the usual “so how’s the business doing?” question with “Fine, it’ll make a profit this year!”. But even through this haze of self-delusion it was starting to sink in that there was essentially no realistic prospect of growth in our current line of business, and that printed books were a dead end.
This left precisely one option: pivot away from printed books into a digital form. Back when we started out, both e-books and apps were impractical boondoggles, with a limited range available on clunky devices if you were a member of the technological priest-elite capable of operating a Palm V or Sony Librie. But in late 2007 both Apple’s iPhone and Amazon’s Kindle came out, bringing e-books and apps to the masses and setting off a gold rush of selling digital content. Why not join them?
Because we could not. Wikitravel Press’s contract with Internet Brands was only for printed products, not digital products. We’d asked for digital rights originally, but had to give way, and our new attempts to add them to the contract were tersely rebuffed. Since Wikitravel content is open to all, we could have tried our luck without the brand or the links from the website, but then there would have been little to differentiate us from anybody else repackaging it, and we’d probably be getting our books pulled from the Kindle Store on as just another “private label rights” publisher right about now.
By 2009, the writing was on the wall and we started looking for a way out. Evan already had a hit on his hands with identi.ca/StatusNet, and towards the end of the year I received an offer from Lonely Planet — not to acquire the company, but to bring me on board a revolutionary publishing project of their own. I jumped at the chance, resigned my managerial positions (but hedged my bets by keeping a minority stake) and passed the poisoned chalice over to superstar editor/author Peter Fitzgerald of Chicago and Washington DC fame. He knew full well that the company’s prospects were dim, but hadn’t had all enthusiasm and hope ground out of him quite so thoroughly yet.
Lesson #7: When it’s time to let go, let go.
In hindsight, we should have told him “no” and killed the company then and there. The ensuing two years of slow decline were a slow but constant drain on time and money for all us, with little upside; sure, a few more editors got to see their books in print, but only see them fizzle and get pulled off the shelves shortly thereafter. The issue was finally forced by the Internet Brands contract coming up for renewal, which we obviously elected not to do, and the company shuttered its virtual doors on December 31, 2011.
In retrospect, Wikitravel Press was the Minidisc of its time. In the same way that Sony’s Minidisc was revolutionary compared to cassettes, it was a revolutionary way to do printed books, but both forms of physical media were swiftly obsoleted by the far greater revolution of digital technology: MP3 players for music, phones and tablets for books.
And the one thing that annoys me to this day is that, from day one, we knew this; we just assumed that we’d be able to get the business up and running through print books, and then expand the empire into digital once that market came into being.
On the upside, while we did not come up with the Travel Guide of the Future, neither has anybody else yet, and the trusty old printed guidebook still remains the format to beat. Got a good idea? Drop me a line, and maybe we can give it another shot together.
First, the name of Wikimedia’s new site is now effectively confirmed as Wikivoyage, as the voting has ended with 160 votes in favor of the name, with a feeble 44 for the 2nd highest-rated option. The English version of the site is already open to the public at http://en.wikivoyage.org and hosting will shortly be transferred to the Wikimedia Foundation.
Second, Internet Brands has filed an opposition to Wikimedia’s motion to dismiss. This document is even more bizarre than the last one, starting with the claim that their lawsuit is “strictly a dispute among would be business competitors“, which seems to acknowledge that defendants Holliday and Heilman are not even running a business yet! Internet Brands also claims that they “have used [Internet Brands’] mark … as part of Defendant’s name for the rival website” — but as you may recall, this “rival website” a) doesn’t exist yet, b) did not have a confirmed name when IB filed their opposition, c) shares nothing with Wikitravel but the word “wiki”, and d) has nothing to do with Holliday and Heilman.
The following pages then proceed to perform awkward legal gymnastics with the aim of claiming that their lawsuit is not about the future Wikimedia site, but the defendants’ “one time swing at deceiving” of sending e-mails to Wikitravel users. No, that argument doesn’t make any sense to me either, but obviously they’re trying to furiously backpedal from getting the Foundation involved and making it seem like their beef is solely against Holliday and Heilman.
But buried at the end of the document, Internet Brands quietly drops the second of their four claims, the Lanham Act charge against the brief use of the term “Wiki Travel Guide” on the Wikimedia discussion page. This effectively means that the only charges left standing are trademark infringement and unfair competition, which only serves to make the domain name charge earlier is even more incomprehensible.
Holliday’s response is due on October 22, and the first court date is in early November. Stay tuned!
In response to the spurious lawsuit against ex-Wikitravel volunteers, Wikimedia’s lawyers Cooley LLC have yesterday filed a motion to strike Internet Brands’ charges under California’s SLAPP legislation. Full document attached below, and it’s a really good read (seriously!), but a few select tidbits for your reading pleasure:
The Complaint filed by Plaintiff Internet Brands, Inc (“IB”) is a Strategic Lawsuit Against Public Participation (“SLAPP”), a meritless action brought not to win, but to intimidate, threaten and ultimately silence persons engaged in speech that IB dislikes but the Constitution protects. …
IB’s claims against Ryan rest – entirely – on allegations that Ryan was involved in sending emails to Wikitravel users concerning the proposal to set up a new travel site allegedly called “Wiki Travel Guide”. As a reading of these communications shows, to the extent they contain any “use” of a trademark at all, such use is limited to referencing “Wikitravel” by name to distinguish it from a new travel site being planned. This is known as nominative use, and is permitted by law. …
IB’s state law claims for trademark infringement, state law unfair competition and civil conspiracy can and should be dismissed under California’s anti-SLAPP statute … because they all arise from constitutionally protected speech and IB cannot demonstrate a probability of prevailing on the merits. …
IB may not survive dismissal by simply reciting the elements of a Lanham Act claim without supporting factual allegations. … For this reason alone, Count II of the Complaint must be dismissed for failure to state a claim.
This is a followup to Wikimedia confirms creation of travel wiki, sues Internet Brands to end legal threats against volunteers, so please read that first if you haven’t already.
There’s been plenty of analysis of the Wikimedia Foundation’s countersuit against Internet Brands, but little of the original lawsuit by Internet Brands against its volunteers, mostly because it took a few days until a copy was published. Here’s a fast food themed attempt to fill that gap, with extra pickles and ketchup.
Disclaimer: I’m not a lawyer, and I don’t even play one on the Internet, so take what you’re about to read with a fistful of french fries. But if you can punch any holes in my amateur logic, I’m all ears.
So. The four counts made by Internet Brands against Wikitravel users Ryan “Wrh2” Holliday and James “Jmh649” Heilman are:
And the single most curious statement in a very curious lawsuit is:
49. Defendants are offering Administrators, contributors and other users a competitive website by trading on Internet Brands’ Wikitravel Trademark.
Well, no, they aren’t: there is no competing website yet. In other words, Internet Brands is not suing because somebody is actually competing against them with some falsely labeled product, but merely because they think they will. To put that in perspective, imagine McDonald’s having an effective monopoly on selling hamburgers in a town, and then Burger King announces that they’re considering opening an outlet that will also sell hamburgers. How far would a lawsuit against them made on that basis alone fly?
It gets even sillier: the lawsuit is not even against the putative future competing entity (Wikimedia), but against two volunteers of the existing site, who are not employees of either. To continue our burgerrific analogy, imagine two customers of McDonald’s publicly announcing that they’d eat hamburgers at Burger King if one opened up, and then getting sued for it. Seriously?
What’s more, since Holliday and Heilman are both unpaid volunteers, the applicability of any of the charges is seriously questionable. For example, Lanham Act Section 43(a) requires that the trademark be used “in commerce“, but what commerce has taken place? For unfair competition, Internet Brands alleges that they “have engaged, and continue to engage, in wrongful business conduct“, but what business are they talking about? And while every charge ends in the boilerplate claim that “Defendants have been unjustly enriched“, I entirely fail to see how Holliday and Heilman have been “enriched” in any way. Quite the contrary, it’s the work of unpaid volunteers like them that has been enriching Internet Brands in the past five years.
But those three arguments actually unnecessarily dignify the charges, since you could come away with the misleading impression that they would have some merit once the competing website is up and running. IB’s argument against Heilman seems to hinge on this claim:
22. Heilman announced that the “new” site, which would combine the Wikitravel Website through a straw-man transaction with Wikivoyage.org (the “Wikivoyage Website”) into a Wikimedia Foundation website that would be called “Wiki Travel Guide” (the “Infringing Website”).
Nope. As clearly stated in the proposal, the final name of the site remains undecided, although it seems likely to launch as travel.wikimedia.org. The working name “Wiki Travel Guide” (as in, a travel guide that’s a wiki) was used for a few days, but it was dropped on April 24 in favor of the generic “Travel Guide”, four months before the end of the discussion period on August 23.
Also, given that Wikivoyage e.V. has been an independent German registered association since 2006, characterizing it as a “straw-man” for Heilman and Holliday seems both ludicrous and potentially defamatory.
Holliday’s original sin, on the other hand, was allegedly this:
30. Specifically, Holliday’s email contained the Subject Line, “Important information about Wikitravel” and its body stated, “This email is being sent to you on behalf of the Wikitravel administrators since you have put some real time and effort into working on Wikitravel. We wanted to make sure that you are up to date and in the loop regardling big changes in the community that will affect the future of your work! As you may already have heard, Wikitravel’s community is looking to migrate to the Wikimedia Foundation.”
31. Holliday and Heilman clearly intended to confuse Wikitravel Website participants into thinking the Wikitravel Website is migrating to Wikimedia, in order to gain, through improper and illegal means, all the traffic and content creators currently contributing to Wikitravel.
Or in short, on Planet IB, the terms “Wikitravel”, “Wikitravel administrators” and “Wikitravel’s community” are all to be interpreted to be referring to web host Internet Brands alone, as opposed to the users and the content that make up the site. This is nonsensical, especially given that the users “intended to [be] confused” were exclusively those long-term, prolific Wikitravel contributors most familiar with the site. Internet Brands themselves is well aware of the distinction (see eg. this comment where they distinguish admins and community, and this for host vs community), but burgerizing it makes it even clearer:
This email is being sent to you on behalf of the McDonald’s fan club since you have put some real time and effort into eating at McDonald’s. We wanted to make sure that you are up to date and in the loop regarding big changes in the fan community that will affect the future of your meals! As you may already have heard, McDonald’s diners are looking to go eat at Burger King.
Would you read that as saying that the McDonald’s Corporation is is moving over to Burger King? I don’t think so.
And there’s more:
Internet Brands’ final claim is that there is the “civil conspiracy” against them and that the defendants have engaged in all sorts of dastardly “unlawful acts”. In particular:
32. Holliday not only violated trademark laws, he violated the administrative access given to him by Internet Brands by improperly using personal information stored on Internet Brands’ servers about users and writing to them by name, in an attempt to bolster the appearance of a direct communication from the owners of the Wikitravel Website.
Where to begin? First, Internet Brands did not “give” Holliday administrator access; he has been an administrator since June 2005, before Internet Brands bought the site. Second, administrative access is not necessary to mail users, as anybody who is logged in can do it: here’s a form for sending mail to everybody’s favorite Internet Brands apologist, Paul “IBobi” O’Brien. (Be nice, mmkay?) And third, “bolster the appearance” and “writing to them by name” are just nonsensical, since MediaWiki form e-mails clearly show the name of the sender and does not expose any of the receiver’s personal information.
Last and least, my favorite claim of all:
26. On July 12, 2012, Heilman met at the Wikimania convention with a number of Administrators and others to reach a further meeting of the minds as to the unlawful acts to be undertaken.
And there is one interesting thing that Internet Brands is not doing: at no point do they dispute the validity of the Creative Commons license, which indicates that even their legal team thinks they have no chance of stopping the content itself from being forked. They are clutching desperately at straws to try to get the community to stop leaving, but the lawsuit has more holes than a chip frying basket, and is likely to get crumpled up and thrown away like a used burger wrapper as soon as a judge sees it.
Final disclaimer: McDonald’s is a trademark of McDonalds Corp. Burger King is a trademark of Burger King Inc. Any references to either in this post are illustrative works of fiction.