He pointed out that the FBI Seal is an official insignia of the Department of Justice with the primary purpose of authenticating the official communications and actions of the FBI, and that there are regulations requiring requests for authorizations to use the seal, but that Wikipedia had not received any such authorization.
He also explained that "The inclusion of a high quality graphic of the FBI seal on Wikipedia is particularly problematic, because it facilitates both deliberate and unwitting violations of these restrictions by Wikipedia users." He further explained that unauthorized reproduction or use of the FBI Seal is prohibited by a criminal law and criminal procedure section of the US Code, Title 18, section 701, and demanded that Wikipedia remove the seal from its website.
That section provides:
§ 701. Official Badges, Identification Cards, Other InsigniaHe did not cite any provisions of the Lanham Act or the Copyright Act, or any suggestion that Wikipedia might be liable for contributory or vicarious copyright infringement – presumably based on the belief that either citing the criminal code provisions would be more threatening or that the fair use defense would trump the FBI's claims.
Whoever manufactures, sells, or possesses any badge, identification card, or other insignia, of the design prescribed by the head of any department or agency of the United States for use by any officer or employee thereof, or any colorable imitation thereof, or photographs, prints, or in any other manner makes or executes any engraving, photograph, print, or impression in the likeness of any such badge, identification card, or other insignia, or any colorable imitation thereof, except as authorized under regulations made pursuant to law, shall be fined under this title or imprisoned not more than six months, or both.
It bears noting that Wikipedia does not always include high resolution versions of copyrighted works on its site, and the FBI might have been able to make a stronger case under the Digital Millennium Copyright Act (DCMA) based on the continued inclusion of the high resolution version of the seal on its website, particularly when a lower resolution is available. (If Wikipedia is considered a service provider under the DCMA, it would have a difficult time arguing that it should come within the Act's safe harbor provisions in light of Wikipedia's position, which makes plain that it has no plans to block access to the high resolution version or remove it from the site.)
In any event, for whatever reasons, the FBI's "demand" elicited a sharp response from Wikipedia's general counsel, Mike Godwin, who fired back on July 30 with a treatise on statutory construction and an explanation that the principle of ejusdem generis – "of the same kind" – a rule in statutory construction that applies where a word is ambiguous or inherently unclear; in its application, when general words follow the enumeration of a particular class of persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated. Mr. Godwin explained that under this principle, the statute does not apply to Wikipedia's use of the seal in its encyclopedia because the statute was only intended to protect the public against the use of a recognizable assertion of authority with intent to deceive, hardly what Wikipedia was doing.
Mr. Godwin concluded that Wikipedia believed it was "compelled as a matter of law and principle to deny your demand for removal of the FBI Seal" and that it was "prepared to argue our view in court."
Like most high profile attempts to call for a prior restraint on speech, the FBI's strategy seems to have backfired, at least insofar as it has resulted in calling greater attention to the availability of the high resolution version of the FBI's seal on Wikipedia's site. Watch this site for further developments.
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