[Foundation-l] GFDL and relicensing

[Anthony]

On Nov 25, 2007 3:45 PM, Thomas Dalton <thomas.dalton at gmail.com> wrote:
> > But...it's a strawman.  A better response would be "No I didn't
> > license it under GFDL 1.2 Or Later; furthermore, even if I did, I
> > retract it."
>
> But that would be simply untrue, on both counts. It clearly was
> licensed under GFDL 1.2 or later (unless "or later" clauses are found
> to be completely invalid, regardless of spirit, but that's a separate
> issue), since that's what it says right above the "Submit" button, and
> there are no legal means (to my knowledge) of retracting the GFDL.
>
That's not what it says right above the "Submit" button.  Above the
"Save Page" button, on the English Wikipedia, it currently says:
"Content that violates any copyright will be deleted. Encyclopedic
content must be verifiable. You agree to license your contributions
under the GFDL*."  Then, at the bottom of the page it says "^ GNU Free
Documentation License, Version 1.2 or any later version published by
the Free Software Foundation; with no Invariant Sections, with no
Front-Cover Texts, and with no Back-Cover Texts."  And it hasn't
always said this.

I certainly would not stipulate that clicking on such a button
constitutes agreeing to a license.  And actually, I don't recall ever
having clicked on a button with such a text on that page, though it
might be possible for you to gather records showing I had done so.

As for "or later" clauses being found completely invalid, regardless
of spirit, that's not necessary.  The GFDL license itself defines what
"or later" means - "If the Document specifies that a particular
numbered version of this License "or any later version" applies to it,
you have the option of following the terms and conditions either of
that specified version or of any later version that has been published
(not as a draft) by the Free Software Foundation. If the Document does
not specify a version number of this License, you may choose any
version ever published (not as a draft) by the Free Software
Foundation."  The term "has been published" is sufficiently ambiguous
that one could argue it only includes versions published at the time
of the agreement, that would certainly make sense.  Furthermore, the
license implies that the "or later version" language should be
specified in the Document itself, not agreed to by some clickthrough
license.

As for retracting the GFDL, first of all, rights under the GFDL are
automatically revoked if "Any other attempt to copy, modify,
sublicense or distribute the Document" is made.  Surely it could be
shown that the WMF at one point made a copy or distribution outside
the terms of the GFDL.  The article-only dumps don't comply with the
GFDL, do they?

Secondly, there is a significant question as to whether the GFDL is a
contract or a waiver.  If it is a waiver, it can be withdrawn at any
time.  If it is a contract, then there must be consideration, and any
unconscionable parts would be void.  Entering irrevocably into a
contract which can be changed by a third party at any time with no
possibility to opt-out and which does not require future contracts to
be in the same spirit of the original contract is surely
unconscionable.

In the end, I seriously doubt a court would find that by clicking on a
button that says "Save Page" you have irrevocably agreed to do
anything the FSF ever decides to say you've done.  Maybe they'll deny
punitive or even actual damages for past actions as long as the WMF is
acting in good faith (*), but I don't see how they could allow the WMF
to do anything it wants in the future simply because you clicked on
some button ten years ago when the GFDL was completely different.

(*) Although, in a real world situation most likely a DMCA takedown
notice would come first, which would make it much harder to claim that
you weren't aware of the license revocation.