[Licom-l] Deleted Content

[Robert Rohde]

Okay,

I'm willing to defer to you on that, now that we seem to be on the
same page as to what the question is.

-Robert

On Mon, Apr 20, 2009 at 10:11 AM, Mike Godwin <mgodwin at wikimedia.org> wrote:
>
> I believe the drafters of the GFDL (primarily law professor Eben Moglen)
> knew that "publish" has a precise legal meaning that is distinct from
> "making public."  I also freely concede they did not anticipate the issue of
> "hidden" texts -- which probably means the drafters should be understood as
> having been neutral on the question.
>
> That said, I would point out that my interpretation is not only legally
> defensible but also involves the least amount of thinking and juggling and
> confusion with regard to implementation.
>
> I would add that, in my view, text is "live" even if hidden, so long as it
> is possible for some administrator to recover it be inspecting the database.
>
> If we want to keep this simple, we won't overthink this based on edge cases.
>
>
> --Mike
>
>
>
> On Mon, Apr 20, 2009 at 9:30 AM, Robert Rohde <rarohde at gmail.com> wrote:
>>
>> On Mon, Apr 20, 2009 at 9:07 AM, Mike Godwin <mgodwin at wikimedia.org>
>> wrote:
>> >
>> > I'm sorry for being unclear.  My answer in this hypothetical would be
>> > this:
>> >
>> > Whether the article is "live" or not is, in my view, orthogonal to the
>> > question of whether it is part of the MMC that is being relicensed.  A
>> > "dead" article, or an article that was scarcely viewed before it was
>> > hidden,
>> > is part of the MMC by virtue of the fact that it can be restored at some
>> > later date.
>> >
>> > The confusion lies in the conflation of the notions of (1) publication
>> > and
>> > (2) made publicly available.  Although in common language, the two
>> > notions
>> > are identical or close ot it, in legal terms they are analytically
>> > distinct.
>> > Hiding an article for lack of notability (for example) doesn't make it
>> > nonpublished. It has still been published, and you can't unring that
>> > bell by
>> > hiding it. (Also, making the article available at all and having it
>> > exist in
>> > the MMC database, though hidden, is still publication for legal
>> > purposes, in
>> > my view.)
>>
>> I realize and accept that there is a distinction between being
>> "published" (which may be a historical fact) and being "publicly
>> available".
>>
>> However, my concern turns on the fact that GFDL 1.3 refers to a right
>> for content to be "republished" under CC-BY-SA.  Perhaps the legal
>> understanding is different from my understanding, but in order for
>> content to be "republished" it seems like there needs to be a new (or
>> at least ongoing) act of publication.
>>
>> The framers of the GFDL could have created a right to "relicense"
>> content under CC-BY-SA, in which case I would agree that where that
>> content currently resides doesn't matter.  But since they explicitly
>> framed it in terms of being "republished" I am wondering whether or
>> not it the license migration can be said to apply to content that is
>> at no point live during the window of time for republishing under
>> CC-BY-SA.
>>
>> -Robert
>
>