Thomas Dalton writes:
Ok, thanks for clarifying that. In that case, I
suggest we drop the
whole issue of opt-outs. If there isn't any legal reason for doing it,
then we just shouldn't do it.
I didn't say there was no legal reason for doing it. I said the reason
to do so was primarily (not solely) a moral argument. I think there is
a fairly untroubling legal justification for providing an opt-out, and
a persuasive moral/cultural reason for doing so.
Consider this scenario:
1) A French resident adds something to Wikipedia, under the current
GFDL (They don't need to be French, but they need to be willing and
able to sue in a French court, so it's easiest to assume they're
French.)
2) Wikipedia invokes the "or later" clause and moves over to a later
GFDL
3) Someone else edits the article, with their contribs under the new
license
4) Another French resident tries to reuse that article.
As far as French law is (apparently) concerned, the initial user's
contribs are still under the old GFDL, so whatever the person in step
4 tries to integrate the work into has to be under the old license,
yet it also has to be under the new license to be able to include the
contribs added in step 3. You end up with the reuser having to have
parts of their new work under one license and parts under another,
which is very confusing, very difficult to keep track of, and also
possible in violation of the GFDL anyway.
Remember that copyright law only protects particular expression of
ideas, and not ideas or information themselves. In the event that the
initial user objected to the reuse, he (or anyone else) could revise
the passage in question so that it retained the same ideas or
information without reproducing the expression protected by copyright.
This is only one reason it seems unlikely that a Wikipedian would
simply sue us (or the other French resident) rather than seek (or
help in) the removal of the content that he or she believed could not
be reused under the new license. I hope you're not assuming that
French or German Wikipedians are more likely to seek destruction of a
project instead of our willing compliance to their demand for removal
of content composed under (an older version of) GFDL.
Since I've been involved in a wide range of actual copyright cases, I
think I have a pretty clear idea of what makes such cases come about.
It seems to me that it is relatively easy to avoid copyright
litigation, even in France or Germany, even if we assume that French
and German law would not recognize the validity of license migration.
The notion that is being floated here, that license migration would
make various language Wikipedias somehow "illegal" in France or
Germany strikes this particular lawyer as rather science-fictional.
(Note, by the way, that I'm not nearly so complacent about other areas
of the law, such as defamation, which are not subject to international
standardization the way copyright law has been under WIPO, TRIPS, and
other international and multinational agreements. With copyright, the
variations among nations signatory to the treaties are comparatively
small. Note also that, as a lawyer, I'm rather more conservative
about using a term like "illegal" than some non-lawyers are around
here.)
(The WMF actually has the same problem, but
doesn't fall under French
jurisdiction, so it's not an issue.)
The WMF certainly can be sued in France, and has been. (We won on
procedural grounds, not jurisdictional ones. Had our only argument
been that WMF "doesn't fall under French jurisdiction," we would
likely have lost. This would have left the plaintiffs in the position
of having to seek to enforce the judgment in an American court, but it
is not obvious to me that such an effort would have failed.)
--Mike