On Sun, 7 Sep 2003, Daniel Mayer wrote:
*cough* Wikilegal-l ;-)
Geoff wrote
And what do we do if a minor makes a submission? After all, while minors can sign contracts, but cannot be held to them. ....
That's an interesting point. Can a reasonable person expect a minor to know what is legal or not (right and wrong is a different matter)? I think so, otherwise society could not allow minors to drive automobiles and obey traffic laws.
But this does still seem to be an increasingly sticky issue with younger and younger contributors; at what point can a reasonable person expect a minor to be oblivious to what is legal and illegal (I know there is already well-established legal precedent and common law that governs "right and wrong" issues with minors)?
Contract law is a separate matter but IIRC even minors can enter into many non-major contracts with adults and other minors in good faith without the explicit consent of a guardian (this may be stretching the term "contract" though). But in those cases the minor's guardian is still ultimately the responsible party.
At what point does a reasonable person need to seek the the explicit consent of a guardian? Does the new edit page text pass this line? For that matter does the old edit page text pass this line? It would be a shame to have a "Are you 18" click through for editing.
Indeed, & that's not in any shape what I would want to see happen with Wikipedia. I hope it would be a satisfactory solution to this problem I have described were the Wikipedia Foundation to state at some point before Wikipedia 1.0 is published, "We will be publishing Wikipedia, & are providing everyone a fair chance to explain that they were unable to agree to the terms of submission because they were a minor, so we can remove their contribution. Otherwise, we will assume from their silence that they gave consent."
But IANAL, & I don't know if this annoucnement woudl be considered satisfactory by the court system.
This has been something that has nagged me ever since I learned that the FSF does check for this of every contributor to their code base. If someone under 18 wants to contribute, they have to get their parents or guardians to agree to the FSF's terms. (This is done to provide the necessary documentation to prevent a SCO v. IBM lawsuit.)
I think that has more to do with the FSF's copyright assignment policy; a minor simply cannot legally give up substantive ownership rights to their copyrighted materials without the consent of their guardian. This is designed to protect minors from exploitation from adults (and rightly so).
Exactly my point, Mav. And I should have been more clear about that subtle point in my first email.
But here is a thorny question; does releasing copyrighted works under a license that /effectively/ frees those works from control by the copyright holder (sic a copyleft license), similarly relinquish substantive rights and thus requires explicit permission from a legal guardian?
This has been moot for Wikipedia & similar projects because no one is making money off of Wikipedia. At least using both the materials & the trademark. If & when Wikipedia 1.0 is available for sale, & money is made from this sale (& I hope it is a lot, & supports a quick progress to Wiki 2.0), I figure this will become an issue.
As I said before, this is a lot like the situation with Linux: when it was more or less a hobbyist's project, & there wasn't much money involved, no one really worried about ownership of the code. And besides, the custom was that everyone could use the code, & no one could prevent anyone else from using it, so it was not an issue. Then IBM announced that they invested a billion dollars into Linux sales & development, & made all of that back, so Darl MacBride decided to try to sue his way to claim a piece of all of that money.
Can minors reasonably be expected to know the consequences that submitting their copyrighted work under a copyleft license entail? The GNU FDL is confusing enough for adults, let alone children.
Of course IANAL and eagerly await a response from a lawyer (of course not an official legal opinion ;-).
Well, again IANAL, but as I see it the fact that a minor cannot sign away her/his rights to contributions to Wikipedia can come back to haunt us in one of three ways. (Note: I don't claim that any of these 3 cases would prevail against Wikipedia in court; yet I claim that they could lead Wikipedia to spend money on lawyers appearing in court.)
1. Parent or guardian discovers minor has contributed to Wikipedia material they do not want their child to know about, & demands that the contribution be removed. An example would be a Christian parent discovering that her/his child has made a major contribution to the article on Atheism or Evolution -- although the roles could easily be reversed (i.e., the child of Atheist parents writing a contribution on Jesus Christ or Creationism). By this act, they sought to halt the publication of Wikipedia.
Here, I would assume we could resolve this problem by removing the material in question -- but this assumes that the parent wants to be reasonable. (Maybe they hate Ayn Rand & want to kill Wikipedia because of Jimbo's like for the authoress. ;-)
2. A more serious scenario would be where a parent or guardian discovers minor has contributed to Wikipedia material after Wikipedia 1.0 has started making money, & states that because the child could not permit reuse without royalties, some share of the income must be paid to the child.
This is a stickier situation. ISTR that over the years schools have published anthologies of children's writings; perhaps there might be some guidance from how the rights for those books were acquired.
3. The worst -- & this is one I don't want to advertise to the world -- is that after Wikipedia 1.0 comes out, & makes a lot of money, some git appears out of the blue, claims that it made a lot of contributions as an anonymous contributor under the age of 18, & now that it is older than 18 has decided NOT to agree to the original terms & wants money. And won't tell anyone what the contributions were because "Wikipedia will wipe off the fingerprints."
Because this scenario is borrowed from what Darl MacBride is doing as CEO of SCO, perhaps this possiblity will become less likely if the judge decides sanely in that case. But even removing that last sentence -- & assuming that the suit is over a considerable piece of work that can be traced to one or a group of related IP addresses -- this still remains an ugly situation that could easily end up in court & cost a lot of money.
In short, what I worry about is someone like Michael or DW deciding to use the legal system to troll Wikipedia. It sucks, I don't like it any more than the rest of you, but we need to decide how to deal with it before Jimbo's dream of the Wikipedia 1.0 CD appears on the Best Seller list.
Geoff