----- Original Message -----
From: "Daniel Mayer" <maveric149(a)yahoo.com>
To: <wikien-l(a)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_announc…
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