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Stephen Todd Hamby quoted in BNA article concerning Wikipedia entry

Reproduced with permission from Electronic Commerce & Law Report, 14 ECLR 129 (Feb. 4, 2009).

Copyright 2009 by The Bureau of National Affairs, Inc. (800-372-1033)

Courts Cite Wikipedia, But Accuracy Questioned.

Courts may take judicial notice of facts not within the judicial record that are either generally known or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b).

Courts have cited to Wikipedia in hundreds of opinions. Hayes v. Snyder, No. 07-2783 (7th Cir. Oct. 9, 2008) (citing Wikipedia entry about medical community’s knowledge of rare kidney disease); Weinbaum v. City of Las Cruces, No. 06-2355 (10th Cir. Sept. 12, 2008) (citing Wikipedia entry about state seals’ incorporation of nautical symbols); United States v. Smith, No. 06-4885 (4th Cir. April 23, 2008) (citing Wikipedia regarding peer-to-peer technology); Fair Housing Council v. Roommates.com, 521 F.3d 1157 (2008) (citing Wikipedia entry defining “Web content development”).

But some have refused to take notice of Wikipedia as containing reliable facts due to the unverified nature of content therein. In 2008, at least three courts rejected evidence from Wikipedia as unreliable.

In Flores v. State, No. 14-06-813 (Tex. Crim. App., Oct. 23, 2008) (13 ECLR 1439, 11/12/08), a convicted criminal defendant asserted that a trial court wrongfully excluded evidence concerning an interrogation technique, which the defendant claimed could result in false confessions.

The defendant urged the court to take judicial notice of information posted on Wikipedia about the technique, but the court declined, saying Wikipedia’s greatest weakness was the fact that anyone could edit it anonymously.

The U.S. District Court for the District of Missouri declined to take judicial notice of a Wikipedia entry May 14, ruling that entries on Wikipedia were not “generally known” and could not properly be the subjects of judicial notice on a motion to dismiss. Cynergy Ergonomics Inc. v. Ergonomic Partners Inc., No. 08-243 (D. Mo. May 14, 2008)(13 ECLR 919, 7/2/08).

The defendants had requested the court take notice of the entry, which included information about Leonardo Da Vinci’s “Vitruvian Man,” as well as a list of Web sites using the work as a symbol, as part of its defense that its use of the symbol was not likely to cause confusion between the parties’ products.

Todd Hamby, of Capes, Sokol, Goodman & Sarachan, in St. Louis, who asked the court to take notice of the Wikipedia content, told BNA that, in certain circumstances, content from Wikipedia could prove more useful as subject matter for judicial notice than paper encyclopedias or other references, because it is frequently updated and can cross-link to a variety of sources, in a way that paper materials may not.

“What we were trying to do was to show the mark was well-known, by referencing a Wikipedia entry that directed the court to several well-known sources such as books and European coins, that incorporated the mark and whose accuracy could not reasonably be questioned.” Courts should, of course, be cautious about what material they admit, Hamby said, but in “appropriate circumstances” should be willing to consider references from sites like Wikipedia. He said more editorial fact-verification could lend credibility to emerging sources in courts’ eyes.

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