[Foundation-l] foundation-l Digest, Vol 44, Issue 105

[Mike Godwin]

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