How to Stop Commerial Use of Copyleft Materials?

An anonymous reader writes "The Guild Wiki, an extremely popular fan-made wiki for documenting the Masssively Multiplayer game Guild Wars, was originally supported by donations, then later advertisements — supposedly just enough to break even. Just the past week, the owner of the domain name surprised this wiki community by revealing that he had sold the domain name, the database, and his services to Wikia, a commercial entity that intends to profit from Guild Wiki's content. The catch? Much of Guild Wiki's content falls under Creative Commons by-nc-sa license, which denies the commercial use of licensed material. Arena.net created their own community run wiki to serve as the in-game help system, because they didn't think they could use the material on Guild Wiki commercially. If Wikia continues to serve ads over Guild Wiki's content, how can the thousands of contributors to the site stop them without going to the expense/trouble of hiring attorneys (or the crude path of mass vandalism)? If it turns out the site owner has been making a profit all along from ads, what's the remedy?"

Comments

DMCA

[Halo1]

Send a DMCA take down notice to the hosting provider since the contents of the website infringe on your copyright? :) You shouldn't even need a lawyer for that, as there are plenty of RIAA and MPAA examples floating around...

Re:DMCA

[cpt kangarooski]

It's a little more complicated than that. Whichever side wins can at least ask the court to award reasonable fees and costs. But it's up to the court.

However, there's a big caveat. You cannot bring a regular copyright infringement suit in the US at all unless you've registered the work with the copyright office. It's a prerequisite to the suit, and it's common to just throw out cases where the plaintiff hasn't done that, with the understanding that he'll have to go back and do it before coming back to court.

However, the registration is also important in that if the work was unregistered at the time of the infringement, then statutory damages and costs and fees may not be awarded in the case (unless the work was published and unregistered at the time of the infringement, but registered within three months of its first publication, which is the one case where you get a little extra time).

Since the nature of a public wiki would make it annoying to register, at best, it's probably safe to expect that these remedies will never, in practice be available to the wiki group as a plaintiff, and that furthermore even after-the-fact registration just to get an injunction or actual damages and profits will be pretty difficult to manage. This is a known issue with these sorts of things (e.g. GPLed code where the copyrights aren't assigned to the FSF), but them's breaks.

Anyway, this being the case, getting a lawyer willing to take the case on contingency is incredibly unlikely.

Re:DMCA

[cpt kangarooski]

You do not need to register your work with the Copyright Office.

However, you cannot bring a suit for infringement unless you have registered your work prior to the filing of the suit. If you try to sue and have not already registered, the suit will be dismissed right off of the bat. This is a necessary prerequisite to any copyright infringement action.

Also, if the registration comes after the infringement, then you cannot get statutory damages. This means your damages are limited to the amount you were actually damaged (as opposed to being able to claim tens of thousands of dollars or more per work without proof of how much you were actually damaged) and also the profits made by the infringer attributable to the infringement. Nor can you get reasonable attorney's fees and costs.

There is one exception to that, in that if the infringement takes place after the first publication of the work, but before the registration, and the registration takes place within three months of the first publication of the work, then you can still claim any remedies.

Personally, I would advise people to register immediately, provided that they care about the copyright to a work. If you really don't care whether or not people do something which would constitute infringement, or at least don't care enough to bother registering (there is a simple form, a deposit requirement, and a modest fee), then don't bother. But realize that it will have significant repercussions.

The other thing you should always do is to place a proper copyright notice on works, again, if you care. It's helpful in preventing defendants from having a stronger case.

Copyleft does not try to prevent commercial use

[Arioch of Chaos]

Just to clarify, copyleft ("SA" in CC terms) does not prevent commercial use at all. The problem here is the noncommercial ("NC") clause, which is something completely different.

Re:How carefully is the license written?

[julesh]

whether they can stop him presumably depends on the exact wording of their CC license

Why speculate about the possible wording? The relevant wording from the license described is:

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in con-nection with the exchange of copyrighted works.

It seems to me that Wikia's use is almost certainly primarily intended for such a purpose.

Re:Wikia is run by the wikipedia founder

[Anonymous Coward]

This is more or less what they're going to do. From the Wikia Move page:

Does Wikia Own User Contributions Now?

Not any more than I do. The licensing of the site and your content will not change against your will. If you want to delete your account, stop contributing, or call me names in public forums, you are as free to do this as you were before the move. As part of the deal, Wikia has also agreed to make public data dumps of all the openly licensed content available on a regular basis, which is something we've always wanted to do, but never quite got off the ground.

Re:How carefully is the license written?

[budgenator]

Here's the rub, much of the original content was issues under CC NC-SA but the site is now licensed GFDL 1.2, which specifically allows commercial usage, but the content is specifically disallowing commercial usage. Changing the license was really bad form, but assuming that any new content added by a contributer under the GFDL would change their previous CC NC-SA licensed property was naive and using the content commercially probably illegal.
  The definiton of commercial is pretty vague at times, probably to keep lawyers in bussiness, but now site seems to be driven primarily by a profit motive, unlike the orgininal where the revenues were intended to offset expenses, so the first site was in a gray area, but the second is probably over the line. The poster should talk to a lawyer, maybe the EFF or legal aid would be interested.

Re:The first step:

[AHumbleOpinion]

A buyer is under no obligation to check facts provided by a seller. This includes verbal statements made during discussions. If someone makes a misrepresentation, and the misrepresentation is used in the decision making, then the legality of the contract is in question. The buyer should be able to get their money back and possibly damages as well. I am not a lawyer, just a geek who took a business law class. I think it is one of the most important classes I have taken.

Wrong, it's NOT YOUR CONTENT.

[KingSkippus]

Okay, now that everyone's in a tizzy, let's bring some reason back to the discussion.

First of all, almost every game out there, including Guild Wars, states in its terms of service that you can use their game content for non-commercial purposes. However, the content remains the property of the game company. That means that if, for example, you post an article in a wiki that contains verbatim descriptions of things found in-game or in documentation otherwise produced by the game company, which most articles are, you have absolutely no right whatsoever to make a DMCA claim because the content is not yours to begin with. If, and that's a huge if, anyone has a right to serve a takedown notice, it would be NCsoft, the owner of the IP for Guild Wars.

Second of all, I too own a popular gaming wiki for City of Heroes, and I too am in the process of moving said wiki over to Wikia. There are many reasons, but among the top ones is the fact that the wiki is become too popular and is overloading my server. Response times are going down, pages aren't loading, and I'm already paying a decent sum of money every month out of my own pocket for a site that has clearly exceeded the capacity of a hobbyist site. At this point, I have one of three options:

• Put ads on the wiki myself.
• Transfer the site to someone else who will run ads.
• Shut the site down.

Regarding option 1, I am not a salesman, nor do I ever want to be. Plus, I just want to concentrate on making the wiki a quality resource for the game's players, not making templates for ads and dealing with money transfers and all. Plus, as you can tell from the submitter's blurb, I don't want to have to deal with people accusing me of doing it for profit. Regarding option 3, I guess some might argue that it would be better to have the information lost forever or dispersed to the winds of the Internet so that it's a lot harder to find, but I don't think that making information less available is in the spirit of what the CC license is about, or the GFDL that the Paragon Wiki uses.

Third of all, all wikis are commercial at some point in the chain. For example, the hosting provider I'm currently using to host the Paragon Wiki isn't free. Could it be argued that because someone (i.e. my hosting provider) is making money off the wiki, it is therefore a commercial endeavor and must be removed? No, that's stupid. If you must, think of this change as the Paragon Wiki, and GuildWiki for that matter, simply changing hosting providers. Instead of me paying a hosting provider money, though, they are getting it through Google ads. I know some folks are going to be saying, "But he got paid and is getting company stock!" And I got paid, too. However, I think you're grossly overestimating the amount. In my talks with Wikia, they told me that they were going to reimburse me retroactively for my hosting costs for the wiki, to give me the money back that I sunk into it for the past couple of years. I did the math. Their number is actually slightly lower than the actual cost, but it's pretty close. I don't know the details (and don't care to) of how much Gravewit got for moving his sites over, but I strongly suspect that he's been paying more in hosting costs than I have, and that it was a similar arrangement, with the money plus the stock value being around the same as his retroactive hosting costs.

Fourth of all, the submitter's summary really portrays Wikia in a needlessly negative light. Can we please acknowledge that they are providing a valuable service here? They could pick and choose only sites that will make them millions in ad revenue to host, but that's not what they're doing. Anyone who wants to can start a new wiki on any topic that they think would build a community, whether that's a community of a billion people or a community of a hundred. They provide gr

Re:Wrong, it's NOT YOUR CONTENT.

[EconomyGuy]

That means that if, for example, you post an article in a wiki that contains verbatim descriptions of things found in-game or in documentation otherwise produced by the game company, which most articles are, you have absolutely no right whatsoever to make a DMCA claim because the content is not yours to begin with. This is patently false. In the US context if I write an article in which I critique "verbatim descriptions of things found in-game or in documentation otherwise produced by the game company," my usage is protected under Fair Use principles mandated by the First Amendment. Note that critique is a very broad word in this context and can be as simple as "this in-game element is stupid." No click-thru terms of service can deprive me of those rights. I own the entire article, as a complete work of authorship under the Copyright Act, which provides me all the rights and protection of the DMCA and the plain old claim of copyright infringement.

These aren't critiques.

[KingSkippus]

Have you read most of the articles on these wikis? The vast majority of them are not critiques. They are, as I said, verbatim copies of texts and screenshots of images found within the games, or on official websites or within the game publishers' manuals. As such, the fair use protection doesn't apply.

At best, you might be able to come up with some kind of claim if you've used some sort of clever presentation of the information, but if you're just copied it over into a wiki, you most certainly have no claim on it.

Re:non-commercial use

[cyberon22]

You're actually wrong. The license specifies extremely clearly that the materials cannot be copied for purposes "primarily intended for or directed toward commercial advantage or private monetary compensation." This would prohibit the initial installation of the data on a commercial server. Get a volunteer to install it and you're prevented from touching it again. Backups? Nope. Extra installations? Nope. Even if you outsourced the copying to an outside institution you could end up screwed if your server copies materials in the process of serving them, such as through database caches.

So sorry that you don't like it, but the CC-NC license is hostile to commercial use. I don't have any problem with this.

The reasonable defense for Wikia here is to claim that their use of the materials is not primarily intended for or directed towards commercial advantage. This is not an unreasonable claim considering that the company is not asserting ownership over the materials and is providing access to them free-of-charge. The CC license is ambiguous about what constitutes "primarily" commercial use however. The word "intended" is even more tricky.