Hi everyone,
I don't believe the Terms are meant to expressly adopt all foreign laws
outside the United States. The community discussed the phrase "applicable
law" a few times during the drafting process. The Terms of Use only
expressly call out the United States as applicable law in the Overview
section and section 1(b). There is no express adoption of another foreign
law by name: the Terms of Use only use the word "may" for laws other than
the United States, simply putting users on notice of their possible
application.
Along those lines, the Terms of Use (Section 1(b)) do try to provide a fair
warning to our users about their local laws and enforcement by government
authorities. Specifically, the Terms say in Section 1(b): "Although we may
not agree with such actions, we warn editors and contributors that
authorities may seek to apply other country laws to you, including local
laws where you live or where you view or edit content."
Furthermore, in the last paragraph of section 4, WMF reserves the
discretion to enforce that section which governs certain behaviors on the
sites. Considering the totality of the circumstances, the WMF wouldn't try
to enforce section 4 (or any other parts of the Terms of Use) in a way that
was not aligned with our mission. For example, we would never try to use
the Terms against a dissident in a censored country who tries to express
himself or herself truthfully and freely on-wiki, in violation of their
local laws.
(As pointed out during the drafting process, this provision is consistent
with other like-minded organizations' terms. Creative Commons,[0] the
Internet Archive,[1] and the Open Source Initiative's[2] terms, for
example, require users to comply with "applicable" laws.)
Thanks,
pb
0.
https://creativecommons.org/terms (Section 7)
1.
http://archive.org/about/terms.php (Paragraph 3)
2.
http://www.opensource.org/ToS (Section 5)
___________________
Philippe Beaudette
Director, Community Advocacy
Wikimedia Foundation, Inc.
415-839-6885, x 6643
philippe(a)wikimedia.org
On Thu, May 3, 2012 at 7:03 AM, Nathan <nawrich(a)gmail.com> wrote:
On Thu, May 3, 2012 at 9:45 AM, Federico Leva (Nemo)
<nemowiki(a)gmail.com
wrote:
Birgitte_sb(a)yahoo.com, 03/05/2012 14:17:
Encouraging people outside the US to live as though they live inside it,
is neither wise nor ethical.
On the other hand, this is what happens (o could have happened) in other
parts of the Terms of use which apply to /users/ (not their
contributions)
the USA laws where they're more restrictive.
The whole section
"Refraining
from Certain Activities" has this problem,
which is very hard to avoid
given that nobody really knows what the "applicable law" is. There was a
lot of work on this part as well, I'm not able to judge the results.
Both problems originate from the decision to enforce via a private
contract the state laws (privatization of justice or statement of the
obvious? I don't know). The old ToU left everything implicit (or were
reticent, depending on how you see it).
Nemo
It only makes sense to be somewhat explicit about the laws that apply,
since they apply regardless of their presence in the ToU.
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