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

[Erik Moeller]

2009/3/18 geni <geniice at gmail.com>:
> 1 person on this list. The rest of the opposition comes from the
> foundations unlawful and ill thought out proposed TOS.

For the record, our legal reasoning for the attribution terms under
consideration is as follows (as reviewed by Mike).

1) Part 1: Can attribution-by-link be reconciled with the legal code
of CC-BY-SA?

Answer: Yes. The "attribution by link" option was explicitly made
available to authors in CC-BY-SA 2.0 (note difference in section 4.c:
http://tinyurl.com/cvdbe9 and related blog entry:
http://creativecommons.org/weblog/entry/4216 ). Authors also have the
option to not supply an author name for the purposes of attribution
("the Original Author if supplied"). The attribution requirements are
also tempered by the caveat that they should be "reasonable to the
medium or means", building in flexibility for situations where, for
example, providing attribution to all authors directly isn't feasible
or reasonable.

Therefore terms of use which require authors to agree to be credited
by link, and not by name, are consistent with the language of CC-BY-SA.
This entire reasoning has been explicitly confirmed by Creative Commons
General Counsel Diane Peters.

2) Part 2: Can such an attribution model be reconciled with moral
rights provisions in certain jurisdictions?

Answer: Yes. Moral rights provisions protect an author's right to be
named, but allow flexibility in how such attribution occurs (for
example, there is a long history of case law with regard to
pseudonymous attribution). As long as authors consent to
terms of use requiring attribution by hyperlink, such attribution is
consistent with moral rights. Such consent has already been given
for existing edits (see below).

3) Part 3: Is such an attribution model consistent with the past
practice under which authors have contributed to Wikipedia and other
projects?

Answer: Yes. This is evident through the current site-wide copyright
terms, e.g. http://en.wikipedia.org/wiki/Wikipedia:Copyrights . Even
the earliest available version of the Wikipedia:Copyrights policy
which stated re-users obligations said that users' "obligations can be
fulfilled by providing a conspicuous link back to the home of the
article here at wikipedia.com."
[http://en.wikipedia.org/w/index.php?title=Wikipedia:Copyrights&oldid=159593]
Similar terms have been stated through the history of the policy, as
well as other language versions.

In addition to the site-wide terms of use, the consistency of this
practice can also be inferred from the experience of a user
contributing content to Wikipedia or another Wikimedia website. Such
changes are not visibly credited to the contributor on the resultant
page. Indeed, the only way in which contributors are credited in
Wikipedia is through a history of changes. This history is a full view
of every change ever made to a page, often spanning multiple pages,
including irrelevant edits, and providing no obvious means to discern
contributors who have made substantial edits. Authors do not receive
attribution by name in any conventional fashion, such as by being
listed below the article title or in the page footer. In the
exploratory Wikimedia Foundation survey on attribution, some users
even pointed out that if they ever expected to be credited for their
work, they would have chosen a different username.

Therefore, an argument that a contributor has a reasonable expectation
to be attributed beyond the proposed terms is not supportable by past
and current practice. That said, these terms have always been inconsistent
with the rigorous requirements of the GFDL, and while the terms of use and
real-world practice can be understood to establish the actual
conditions of re-use, CC-BY-SA guarantees full consistency of the
longstanding attribution model with the content license.
-- 
Erik Möller
Deputy Director, Wikimedia Foundation

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