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

[Birgitte SB]

--- On Mon, 3/23/09, Nathan <nawrich at gmail.com> wrote:

> From: Nathan <nawrich at gmail.com>
> Subject: Re: [Foundation-l] Licensing transition: opposing points of view
> To: "Wikimedia Foundation Mailing List" <foundation-l at lists.wikimedia.org>
> Date: Monday, March 23, 2009, 2:47 PM
> Introducing the terms of service, or
> anything other than the license itself,
> confuses it for me too. The questions it brings to my mind
> are:
> 
> 1) Which controls attribution, the license or the TOS?
> 2) For importation, which determines compatibility - the
> license or the TOS
> of the original site (if applicable)?
> 3) (A restatement of 1) If the license and the TOS
> conflict, which controls?
> 4) If the intended form of attribution is seen as being
> allowed via the TOS,
> does the TOS then constitute the actual license (as opposed
> to GFDL 1.2)?
> 
> A lot of this is deeply technical. I'm not clear on who is
> right, but wrt to
> writing and debating skill alone the pro-transition folks
> are clearly at an
> advantage. What I'd like to see is calmly argued and
> defined opposition;
> without recourse to "You're an idiot, and I know phrase X
> means Y because I
> said so." When Erik, Mike Godwin and Michael Snow make
> concise and well
> written arguments, and get replies in the form of short
> inline comments
> along the lines of "No, you're wrong" it doesn't help
> anyone get a good
> picture of what the problems here are supposed to be.

1) The license controls attribution to a degree.  Within what is allowed by the license a TOS contract in effect where the content is created could be more restrictive but not less.

2)For importation to a WMF. The licenses must be compatible, but there could legal ramifications for an editor who breached the TOS of an external website by copying the material to a Wikimedia site. I don't think there would be legal ramifications for WMF.

3)License controls the content wherever it shows up.  A TOS is a contract which can only bind the people who agree to this contract.  Using a website to varying degrees may or may not qualify as "agreeing to a contract" in different cases, but it certainly can qualify as such.  So the license always controls the content, but a TOS may control what a particular person can to with the content.  If the content is only available from one website with a strong TOS, it is possible for the TOS to control the content completely by binding every single person who has access to the content.  This situation actually exists, most commonly with rare public domain content only available through subscription services sold to universities.

4) No the TOS is a contract only binding to people who agree to it and is attached to those people not the content.  A license is a waiver of copyright in specified situations that is attached the content generally so long as it remains copyrightable.


But none of this was exactly the concern I raised.  My concern was that the TOS proposed for WMF site would restrict authors to using to certain facet of the CC-by-SA license that is not commonly used.  This would generally prevent anyone who was not an author from importing externally published CC-by-SA material which likely relies on a more common facet of the license (naming the author by name).  This is because such non-authors would have no right to agree to the more restrictive WMF TOS on behalf of authors who simply released their work as CC-by-SA.

Regarding the rest

A partial solution to deal with unhelpful responses is to ignore emails from the people who have a habit of such responses.  Of course other people invariably take the bait and you end up reading them anyways.  But at least you only get one email instead of two. 

Of course to describe this as pro-transition vs anti-transition is misleading.  It really is more a matter of the transition forcing to light all sorts of issues we did not spend time thinking on before even though they existed.  The arguments that are anti-transition are really arguments against the status quo as well.  And the pro-transition camp contains a great variety of opinions as to exactly how we should transition. 


Birgitte SB