[Wikipedia-l] An FDL test case: McFly

[Alex R.]

From: "Erik Moeller" <erik_moeller at gmx.de>
To: <wikipedia-l at Wikimedia.org>
Sent: Thursday, February 12, 2004 3:22 AM
Subject: Re: [Wikipedia-l] An FDL test case: McFly


> Alex-
> > I think what he is trying to say is that Wikipedia is one encyclopedia,
> > and the GFDL does not require a history for each section of the
publication
> > but for the whole publication.
>
> When I view a Wikipedia article, I can view the article directly -- I do
> not have to pass through a title page, as I would when viewing an FDL-
> licensed book. I could search for "Donald Rumsfeld" on Google and
> immediately end up on the Wikipedia article about him.

And then if you wanted to find out about Wikipedia you would click around
the site to find out what the GFDL is, what Wikipedia is about. You would
not, if you knew nothing about Wikipedia and wanted to know more,
not click on any of the links on the page. That is what links are for.

> Or on the McFly article, in which case I would be told nothing about the
> fact that the article is licensed under the GNU FDL, or about its history,
> its authors etc.
>
> This is clearly in violation of both the letter and the spirit of our
> license.

I do not think anyone whould disagree with it being a violation of the
spirit of
Wikipedia, but my problem is that he is trying to argue, by his actions,
that
what "we" feel is a reasonable interpretation of the GFDL is not the only
interpretation of the GFDL. I agree with you Eric, it is not nice, but I
really
am having trouble with figuring out what we can really do to stop him short
of adapting a new Terms of Use that is linked to every page that essentially
requires some of the things that Wikipedians want to be included in the GFDL
to be included in the terms of use, and even then this might be considered
an attempt to modify the GFDL and held to be void by the FSF.

> >> And regarding the FDL:
> >>
> >> Copyright (c) 2004 Anthony DiPierro. [Standard FDL short version
follows.]
> >> Warning: this license extends solely to those parts of this document
which
> >> are copyright by Anthony DiPierro, who makes no claims as to the
license
> >> status of other document parts. Use at your own risk!
>
> > This is his warranty disclaimer that he is adding.
>
> Warranty disclaimer? He effectively says that only what he writes is under
> the FDL. That means that he does not fulfill the requirement of the FDL
> that derivative works must be put under the same license.

This is a disclaimer. He is not stating that the rest is NOT released
according to
the FDL but only that he can only copyright his particular contributions,
the
rest of the site is covered by the stated that everything is "considered
released
under the GFDL".

> >> To summarize
> >> 1) Neither the McFly main page nor individual pages link back to
Wikipedia
> >> or to its page histories
>
> > He does have a history section that links back:
> > http://www.slashdotsucks.com:8080/wik/History
>
> This shows clearly that he doesn't follow the FDL. Each page has an
> individual history section. The data on the page above comes from his ass
> (Marxists.org? WTF?).

He is suggesting that the page histories are not equivalent to the FDL idea
of
history. He is taking the tack that the whole of Wikipedia is released as a
"documentation manual" and all he has to do is link back somewhere to a
transparent copy of the whole Wikipedia, which he has done. I agree with
your
interpretation too, but there is nothing requiring McFly to interpret the
GFDL
the way you want to have it interpreted is there? Since the summer I have
been
trying to get a Submission Standards/Terms of Use adopted and at every step
of the way people are complaining that I am being too legalistic, well this
is
what happens when you don't listen to someone who has some concept of
what copyright law and contract law is all about. All I can say is "I told
you so".
Sorry.

> >> 2) The main page does *not* state that the content which is not written
by
> >> Anthony is licensed under the FDL.
>
> > Just as Wikipedia has rather unequivocally stated (until I changed it
> > recently)
> > "Please note that all contributions to McFly are considered to be
released
> > under the GNU Free Documentation License. If you don't want your writing
> > to be edited mercilessly and redistributed at will, then don't submit it
> > here.
> > You are also promising us that you wrote this yourself, or copied it
from a
> > public domain or similar free resource.
> > DO NOT SUBMIT COPYRIGHTED WORK WITHOUT PERMISSION! "
>
> I fail to see the relationship here. Anthony fails to follow the
> requirements of the FDL. The above text is a licensing agreement for
> putting the text under the FDL in the first place.

Is it? I have had discussions with Wikipedians who say that there is no
"agreement"
between Wikipedians and Wikipedia. It is saying that "all contribution are
released under the GNU FDL? How is that not a copyright notice?

> > The question is who are the owners of these individual articles? Some
argue
> > that the joint copyright is owned by all contributors to a particular
> > article,
>
> Seems reasonable. I don't make any copyright claims to Wikipedia's sports-
> related articles, for example. We can ask our contributors to transfer
> authority to the Wikimedia Foundation, of course, and that's exactly what
> we should do.
>
> > Maybe this shows that using the GFDL is not necessarily the best
licensing
> > scheme to use.
>
> The FDL sucks, everyone knows it.
>
> > But what are the actual damages, everyone wants the content
> > of Wikipedia copied, he is copying it, it is just that his
interpretation of
> > what the GFDL says is not the same as the interpretation of what is
> > being done on Wikipedia. Who is to say that Wikipedia is right and he is
> > wrong?
>
> Morally there's no question for me that Anthony is doing this for one
> single purpose: to create trouble, to poison the community well. I can
> easily imagine him spending hours scouring the FDL for loopholes which he
> could use to piss people off.
>
> For this reason alone I believe that Anthony should be immediately and
> indefinitely banned from all Wikimedia venues. Some will argue that he
> should be given a chance to make things right first. Maybe he should, but
> I doubt that it will make any difference.

I think he would argue that he is just following his interpretation of the
letter
of the law.  Even if you do ban him from using Wikipedia how can you ban
him from downloading it? Wouldn't someone argue that that is against the
letter and spirit of the GFDL? If he can download the database he can
release it under his interpretation of the GFDL. How banning will stop him
from doing that I do not understand?

> > BTW, even if people start complaining about violation their attribution
> > rights on articles, he could just list five contributors for each
article
> > and
> > then say he is complying no? It would take as many take down notices as
> > there are articles
>
> In this case it would be more efficient to just group some major Wikipedia
> contributors as complainants and file suit, perhaps even class action.

Under this scenario every single Wikipedian now has to apply to the US
Copyright office to register his/her rights so that they have standing to
apply to the courts. If it is done as a class action the argument will be
that
each case should be a separate case. This would require that resources
be put together to pay for contacting each contributor and getting them
to file the notices. Typically in ClassActions the defendants (who normally
have deep pockets) pay for this noticing, or the class action lead
plaintiffs
have law firms who invest in the costs (even with the web this would cost
tens of thousands in filing fees alone). The law firms invest because they
eventually get compensated by the deep pocket defendants. Here you
are suing an individual who is probably just a pseudonym, who may be
hard to obtain jurisdiction over and who may not have any assets. I know
of no law firm that would be able to do this and I don't think that
Wikimedia
would decide to invest, lets say $100,000 in getting this process going
just because someone is not compliant with the interpretation of the GFDL
that Wikipedians say, morally, should be interpreted the way they
say it should be interpreted.

The reality is that the GFDL as applied to Wikipedia is very close to
a grant into the public domain. A federal judge (or even an appeal
panel) is likely to suggest that by releasing your work under the GFDL
that you are waiving a lot of rights, allowing your work to enter into
a joint ownership scheme that may only require someone to give you
attribution rights if you are one of the five major contributors to an
article. Even then the case law states that the only right that joint
copyright holders have against each other is sharing of royalties,
there is nothing in the GFDL that gives the co-authors any right to
the royalties of a license so there is no grounds that one can sue
a co-owner or license under the GFDL and under the contract
license theory the damages are at best only nominal.  It is, after all,
a free license so that the guys who use it to make money are allowed
to do so and the other coauthors cannot take them to court.

It begs the question, how enforceable is the GFDL?  Even if Wikipedia
was now to require copyright assignment that would not be
retroactive, and even if it could be retroactive what about all the
people who have left the project their agreements with Wikipedia
cannot be changed no without their consent, can it? I would argue
that it could because Wikipedia was always a voluntary
association, but it is going to take people taking some drastic steps
that a lot of users are going to complain about as being against
"consensus" and "community standards". They might even start
to side with ADP because he is recognizing a broad (albeit Marxist)
interpretation of the FDL and copyleft whereas we are suggesting
a contractual and more limited interpretation of Wikipedia as a
collaborative venture that is only using the FDL as a way to insure
that downstream users recognize moral rights.

Interesting that creating a mirror in more moral rights oriented
jurisdiction and filing suit there may be a way to get McFly Network
into more trouble because with the stringent rules of attribution
over text works in those jurisdiction your arguments Eric have
much more weight. US law is really too weak in this area, but
that was done to protect publishers, not authors, who have
most of the lobbyists in the US (unlike EU states that have
a more cultural interpretation of copyright rather than the US
commercial interpretation).

Alex756