--- On Mon, 3/23/09, Nathan <nawrich(a)gmail.com> wrote:
From: Nathan <nawrich(a)gmail.com>
Subject: Re: [Foundation-l] Licensing transition: opposing points of view
To: "Wikimedia Foundation Mailing List"
<foundation-l(a)lists.wikimedia.org>
Date: Monday, March 23, 2009, 2:47 PM
Introducing the terms of service, or
anything other than the license itself,
confuses it for me too. The questions it brings to my mind
are:
1) Which controls attribution, the license or the TOS?
2) For importation, which determines compatibility - the
license or the TOS
of the original site (if applicable)?
3) (A restatement of 1) If the license and the TOS
conflict, which controls?
4) If the intended form of attribution is seen as being
allowed via the TOS,
does the TOS then constitute the actual license (as opposed
to GFDL 1.2)?
A lot of this is deeply technical. I'm not clear on who is
right, but wrt to
writing and debating skill alone the pro-transition folks
are clearly at an
advantage. What I'd like to see is calmly argued and
defined opposition;
without recourse to "You're an idiot, and I know phrase X
means Y because I
said so." When Erik, Mike Godwin and Michael Snow make
concise and well
written arguments, and get replies in the form of short
inline comments
along the lines of "No, you're wrong" it doesn't help
anyone get a good
picture of what the problems here are supposed to be.
1) The license controls attribution to a degree. Within what is allowed by the license a
TOS contract in effect where the content is created could be more restrictive but not
less.
2)For importation to a WMF. The licenses must be compatible, but there could legal
ramifications for an editor who breached the TOS of an external website by copying the
material to a Wikimedia site. I don't think there would be legal ramifications for
WMF.
3)License controls the content wherever it shows up. A TOS is a contract which can only
bind the people who agree to this contract. Using a website to varying degrees may or may
not qualify as "agreeing to a contract" in different cases, but it certainly can
qualify as such. So the license always controls the content, but a TOS may control what a
particular person can to with the content. If the content is only available from one
website with a strong TOS, it is possible for the TOS to control the content completely by
binding every single person who has access to the content. This situation actually
exists, most commonly with rare public domain content only available through subscription
services sold to universities.
4) No the TOS is a contract only binding to people who agree to it and is attached to
those people not the content. A license is a waiver of copyright in specified situations
that is attached the content generally so long as it remains copyrightable.
But none of this was exactly the concern I raised. My concern was that the TOS proposed
for WMF site would restrict authors to using to certain facet of the CC-by-SA license that
is not commonly used. This would generally prevent anyone who was not an author from
importing externally published CC-by-SA material which likely relies on a more common
facet of the license (naming the author by name). This is because such non-authors would
have no right to agree to the more restrictive WMF TOS on behalf of authors who simply
released their work as CC-by-SA.
Regarding the rest
A partial solution to deal with unhelpful responses is to ignore emails from the people
who have a habit of such responses. Of course other people invariably take the bait and
you end up reading them anyways. But at least you only get one email instead of two.
Of course to describe this as pro-transition vs anti-transition is misleading. It really
is more a matter of the transition forcing to light all sorts of issues we did not spend
time thinking on before even though they existed. The arguments that are anti-transition
are really arguments against the status quo as well. And the pro-transition camp contains
a great variety of opinions as to exactly how we should transition.
Birgitte SB