----- Original Message ----- From: "Daniel Mayer" maveric149@yahoo.com To: wikien-l@Wikipedia.org Sent: Sunday, September 07, 2003 7:47 PM Subject: [WikiEN-l] [Wikitech-l] Re: Update to gfdl copyright notice needed
*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. ....
In some jurisdictions those contracts are voidable, but usually if a contract is completely or sufficiently performed it cannot be voided ex post facto; otherwise parents could have their kids buy things in stores and then use them and then just return them after significant periods of time. Yes, if a contract is signed it may need the guardian (or even a court's approval in some cases) before it is considered binding, but such contracts do not cover the kinds of transactions that minors routinely enter into. There are also estoppel, detrimental reliance and unjust enrichment arguments that will also give a remedy or imply a contract.
BTW most contracts are not signed. When you go to a store and purchase groceries do you sign any kind of agreement (unless you pay by credit card or check) No, but the purchase of goods is covered in North America under UCC provisions and elsewhere by similar sales contracts jurisprudence, statute or codal provision (in civil law countries).
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.
Children can testify in court, generally speaking the courts look to the minor's appreciation of right and wrong and truth and falsehood. Often the judge may ask the minor if she understands these things and then rule that the minor is competent.
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)?
How many four year old kids are going to be editing aticles on Wikipedia? Maybe this is getting too academic.
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.
Is that really necessary?
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?
Even if the license is later overturned (I don't think it would be, the minor has to figure out how to edit the page, type in the text, they can see that Wikis function on a collaborative basis) it is still a non-exclusive coauthorship license, one of the _weakest_ types of licenses to have under EVIL US copyright law. (try telling that to a federal court judge in NY or California that you believe copyright is evil, copyright law is what keeps some of those judges busy, so if you want to get into the spirit of the law, don't make it an evil spirit.
The plaintiff would not only have to argue vigorously for damages, i.e. "my son could have had that article published in Encyclopedia Britanica and received $500 for it" (highly unlikely) or the court will order copyright royalties paid (no problem for Wikipedia,everything is free here, but yet another wrench for those potential downstream licensees who might be worried about getting into disputes with irate parents whose children built part of Wikipedia 1.0) Anyway that is not Wikipedia's problem, if someone wants to make money out of Wikipedia why shouldn't they have to pay the due dilligence costs to do so, they will potentially be making profits, no?
Since the contributor can still release their contribution elsewhere under any kind of evil copyright law license, Wikimedia's lawyers could argue that contributing to Wikimedia did not result in any damages. "Hey lady, your son still could have sold his contribution to Britanica, problem is, he does not have an advanced degree and they look for contributors who are recognized experts in their areas before purchasing their work."
There may also a deterimental reliance argument working. As we take steps to make sure that the user does understand the license and is bound by it, then we (as subsequent coauthors) must rely upon it. At worst some judges might order a compulsory licencing scheme/contstructive trust any profits made by third parties. That would not be Wikipedia's problem.
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.
That is one more reason to have a terms and conditions (but I am now thinking to change that term to "Submission Guildelines" and call it terms in the edit page notice, see: http://www.wikipedia.org/wiki/User_talk:Alex756/Annotated_edit_page_announce... for some discussion about the draft submission text over the last few days.
[[Wikipedia: Submission Guidelines]] could have a clause like this:
"If you are underage, PLEASE inform your parents about your contribution to {wikimedia project} and get there permission and put a note about that on your user page. If they do not agree to allow you to participate by making submissions to this site, they may later be able to have them removed. Of course if you submit anonymously it may be very hard to prove who you are." (this is only a preliminary off the top of my head rough draft; it obviously needs more work).
(Doesn't LittleDan state that his parents know about his work on Wikipedia?)
Of course IANAL and eagerly await a response from a lawyer (of course not
an
official legal opinion ;-).
Yes, IAAL but NALO! (see my talk page) alex756