[Foundation-l] Licensing transition: opposing points of view

[Milos Rancic]

On Fri, Mar 20, 2009 at 10:41 PM, Mike Godwin <mnemonic at gmail.com> wrote:
> I disagree that there is a "huge" probability of legal exposure with regard
> to this question.  I follow moral-rights jurisprudence reasonably closely,
> and I have yet to see any reason to believe that the risk of legal action
> against the Wikimedia Foundation (or anyone else) is going to be increased
> by the new licensing scheme. (Indeed, if the probability were huge, we would
> already have seen such cases, since the GFDL prescriptions are more exacting
> than the CC-BY-SA prescriptions.)

Free content became important legal form of content since Wikipedia.
And we are leaving the time when Wikipedia was a miracle with extreme
amount of good faith around it. Also, all contributors were us and we
don't want to sue us.

As Wikipedia is becoming more and more a regular part of our
civilization, we may expect more and more regular behavior. We already
had malicious legal attacks in UK, Germany and France (I remember
those three issues). We had a number of informal settlements, even in
Serbia (a relatively famous person, a daughter of famous Yugoslavian
director and translator, wanted money for some quotes at Bosnian
Wikiquote).

By building a position with significant holes, and attribution issue
is still a significant hole, we are making unsustainable construction.
If we have, let's say, 10.000.000 of contributors and 1% of them
(100.000) is not happy with Wikipedia because of any reason and 1% of
them (1000) want to sue WMF or whoever and 1% of them can do it, we'll
have 10 big problems. We may fail in just 10% of the cases and we'll
suffer from significant consequences.

> I'm known to be risk-averse with regard to legal exposure for the
> Foundation, but I am not terribly troubled by the prospect you raise here.
> Moral-rights doctrine is grounded in assumptions about authorship that don't
> map well to massive collaborative enterprises like Wikipedia. Explaining to
> a court how we do handle attribution in the context of such enterprises --
> including the fact that we make an effort to do reasonable attribution --
> should convince most reasonable courts that the purposes for which
> moral-rights doctrine was invented are being served.  I lose sleep over
> other kinds of legal issues relating to Wikimedia projects, but not this
> one.

Note that the whole idea related to the license migration and relaxing
attribution is because of content reusing, and just in small part
because of Wikipedia itself (while I see benefits for Wikibooks and
Wikiversity, I don't see any significant benefit for Wikipedia). Also,
Wikipedia and other Wikimedia projects are attributing all
contributors.

So, reusers may be sued for plagiarism ("Copyright Me and Wikipedia
authors", even "Me" contributed much less significant material than 20
Wikipedia authors). After the first couple of such processes Wikipedia
recommendations would loose any credibility. (And you should know
better if it would be possible that WMF would be sued for misleading
recommendations.)

BTW, it won't be an issue if we are living in a world without
bourgeois egotism :) But, we aren't living in such world.

Technically, our biggest problem may be removing 100.000 edits. And it
is possible to be done without endangering the project.

But, we may suffer from harder consequences: If someone insists to be
attributed and we say that that person has to be attributed, others
will follow that example. This is especially true for projects out of
English language ones. English Wikipedia, for example, has large basis
of contributors who are contributing there because of free knowledge.
Other projects may have significantly different contributor basis.
Around a year ago around five very active contributors (of ~40 of very
active contributors in that time, if I remember well) left Serbian
Wikipedia. They made another project and they chose CC-BY-NC-ND
license there. If they would be at the project at the time when the
first contributor demands and gets attribution, I guarantee that those
five contributors would be the first who would follow that
contributor. In that situation I know the next ~10 contributors who
would demand attribution just because previous five got... And we
would end with one of two options: (1) general rule that all authors
have to be attributed or (2) that 90% of authors say that they have to
be attributed. So, again, useless recommendations with transitional
mess.

Note, again, that this is not an issue directly related to
Wiki[pm]edia, but to reusing of Wiki[pm]edia content.

And about moral rights doctrine: If it is not scaled well to massive
collaborative enterprises, the answer is not not to address them at
all, but to scale it. (I am talking again something which I don't
want... I want moral rights not to be addressed, but are you sure that
it will work?)

BUT, if you think that there is no reasonable threat to be sued for
"misleading recommendations", it doesn't cost a lot to try that way.
Fixing credibility is much less dangerous than loosing two years
budget.