Wednesday, June 02, 2010

CIT Dumps on Wikipedia

A funny thing happened on the way to deciding BP Products America, Inc. v. United States, the Court of International Trade had to deal with the question of what to do when the parties ask the Court to take into consideration information from Wikipedia.

For anyone who has been living without electricity or access to print media for the last five years, Wikipedia is a communally edited encyclopedia of just about everything from the profound to the ridiculously mundane. Wikipedia is not Britannica in that it's content is subject to change by just about anyone. The theory is based on the concept of the wisdom of the herd. By letting everyone comment, the good information will push out the bad (a least over time). The question is whether Wikipedia is authoritative enough to constitute formal evidence in a court proceeding or for purposes of judicial notice.

Much has been written on this question in legal circles. See, e.g., this article. In the context of this case, the Court was apparently asked to refer to Wikipedia for information concerning the process of refining gasoline. In other words, BP pointed to Wikipedia to support its assertion of pure facts. In footnote 10, the Court took issue with this. Although it acknowledged controversy over the veracity of Wikipedia, the Court concluded that "Based on the ability of any user to alter Wikipedia, the court is skeptical of it as a consistently reliable source for information. At this time, therefore, the court does not accept Wikipedia for purposes of judicial notice."

Fair enough.

Placing my Adjunct Professor hat on my head, I want to change the facts a bit. My reason for this is that I think Wikipedia may have a valuable and specific role to play in classification cases. In these cases, a question to be decided is the common and commercial meaning of tariff terms. Note that the common and commercial meanings are presumptively (but rebuttably) the same. So if Wikipedia defines some term, and that definition has presumably been vetted by the Wikipedia masses, does that constitute evidence of common meaning? It strikes me that it might.

Harking back to an earlier case of mine, is the fact that Wikipedia says that pitch "can be made from petroleum products or plants." Something I should have cited in my briefs on the issue? Does your answer change if you know that I might have been the person that inserted that sentence into the definition (which I was not)? It's a tougher question than the one the Court faced in BP, and one that I think remains to be resolved.

By the way, BP lost. The gasoline is a preparation consisting of oil and other materials making it fit within Heading 2710. The gasoline was excluded from 2707 because it is not similar to oils and other products of the distillation of high temperature coal tar.


David Gerard said...

Speaking as a Wikipedia editor of several years and occasional press volunteer for Wikimedia ... we basically would agree with the court's decision :-)

Wikipedia does get cited in judge's rulings from time to time, but generally that's as a general backgrounder - not as an important point of a decision. That way lies appeals courts ...

We do our best, and we're often very good, but Wikipedia is a starting point, not a finishing point! Everything important should have a checkable reference, and that's what should be used (if it's any good itself).

That said, asserting that a long-standing Wikipedia definition could itself be taken as evidence of "common usage" ... that's interestingly plausible. I wonder if someone will get a court to accept that when it's relevant.

Anonymous said...

To the extent that Wikipedia is a limited public forum for the purposes of accessibility and editorial content, it can be guessed that the population of user/editors is not a representative sample of the "general public" in the same sense that a random sampling survey or a population study might guess is that it would not stand as a "common usage" resource, although the derivative sources from which it draws the language may well be..just a guess

Anonymous said...

Larry -

As an "Internet addict," my assessment of Wikipedia is that its content can be defined as "useful but not authoritative." Certainly NOT a source to be seriously considered in any court of law. However, if a Wikipedia article cites references (some do, some don't), the references MIGHT be of sufficient authority to be considered by the court.

Your faithful Customs retiree