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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?"
From what you say the site owner is making money from advertising, not directly from the content (e.g. by selling it). Now I understand that the authors of the content probably wouldn't be happy with the site owner making a profit even indirectly from advertising (which is only possible owing to the presence of their content on the site) but whether they can stop him presumably depends on the exact wording of their CC license. If the license doesn't stop him making this indirect profit then there is nothing they can do. I guess it should just serve as a warning to others to ensure that the license you release something under exactly matches your intent for how you want to allow it to be used.
"'I pass the test,' she said. 'I will diminish, and go into the West, and remain Galadriel.'"
- JRR Tolkien.
You can't destroy a wiki with vandalism. A simple script can roll every single page back to a particular date, and then it can all be locked. You can ruin the community aspect of it, and presumably take away a great deal of the value assuming Wikia believe they're buying the community rather than merely the content, but if Wikia think the content is finished and in a state where they can sell it (through advertising) then there's little that can be done.
Except...
The authors of the wiki pages are the owners of their content, and as such they're free to put their content onto the other wiki. They're free to put it onto 1000 other wikis. With some SEO expertise it should be possible to make Wikia's purchase completely worthless because noone would ever see it, so noone would ever view any of their adverts.
http://twitter.com/onion2k
...are specific in usage restrictions. I can see this going to court. In which case, I root for the users. The commercial entity isn't /asking/ permission to use the material, it's stating its /intention/ to violate the license under which the material is posted. Screw the users. Not the way to run a business if you want to stay in business.
Operation Guillotine is in effect.
As much as I'm appalled by the legal incongruencies involved, the deal seems to be rather fair towards the contributors (except that they didn't get $$$ - but did they ever expect money in return for CC-NC content?)
... don't turn this place into a land of "lawyers and order".
I mean, Jimbo Wales is no idiot about Wikis (and seemed very down to earth guy when I met him). As much as this might be legal wrangling in the hands of the original owner, if I were a contributor I wouldn't be calling my lawyers. The ideal solution would be for the Wikia folks to ask for CC-SA (striking the NC) relicensing from all authors - in a classic King Solomon solution, by putting up a static data dump on torrents & offering to take down content of any contributor who objects from the wiki version.
But not the lawyers
Quidquid latine dictum sit, altum videtur
Fork 'Em
My question is why the sudden change of heart about commercial use? It is stated that the site has had advertising, so why is it okay for the old site owner to put advertising on the site, but not okay for the new owner to put advertising on the site? The older owner may not have made a lot of money of the site (at least he claims he didn't, I doubt anyone but him really knows) but his intention was obviously commercial, as shown by his selling of the site and cashing in. It seems to me the license of being broken before and no one cared about it, so why is okay for the former owner to break the license bu not okay for the new owner?
"Information wants to be expensive" - Stewart Brand, the same guy who said "Information wants to be free"
Obviously, IANAL.
From the FP, it sounds like you have two separate situations here.
First, you had free hosting that came with a domain name (and probably some form of basic administration in the setting up of the Wiki and keeping it running smoothly - Though your community may have separated those four "services").
Second, you have user-provided CC-nc content that happens to live on the above-provided set of services.
Your community (individually, keep in mind) "owns" the latter. You have no rights at all to the former (though your could argue the domain name itself as a trademark, I highly doubt you registered it as such, and the courts always favor the party who will actually use it for, y'know, "trade" over any nonprofit use.
So as much as you may object to this change, no one has actually violated your copyrights, yet. Your domain owner and admin sold their services, not your content ("the database" can have multiple meanings; you should generally presume a legal one until proven otherwise). Thus, you have two choices, as I see it:
1) Do nothing, and accept banner ads as the price of your hosting.
2) Inform the new owner of your intent, as a group, to disallow them the use of your content. Begin removing it from the current servers and move it elsewhere (a variation of what you called "mass vandalism").
In the case of #2, if Wikia starts doing massive rollbacks to "preserve" content you have every right to remove, then you can cry copyright infringement, and may want to hire a lawyer (this seems like a perfect class-action situation, if you can get anyone to take the case for such small stakes, since you don't actually want any cash for it, you just want an injunction against use of it by Wikia). They may, however, play it perfectly fair. They might expect to lose 10-25% of the community, and treat the rest well enough to stay and even recover over a few months.
But mostly, you should probably wait for an actual infringement before crying wolf.
It's funny. A while ago, probably not long after Google bought out Deja News, there was some bad feeling from Usenet contributors who felt that their content had been sold, and others were basically profiteering on the back of their work. A few custom services were also popping up, which reproduced the content on certain Usenet groups but splatted those irritating ad-links all over key words in the content. When I suggested that this was inappropriate in a discussion here, a whole load of people basically told me to STFU because once I'd posted the content on Usenet I should have known that was going to happen.
I pointed out that at the time Deja started keeping its archive, I (and many others) would not necessarily have been aware of it, and might reasonably have expected articles to expire after a few days (as they did at the time on pretty much all ISPs' Usenet servers). I was directed to the relevant RFCs and told that they said content could be kept effectively indefinitely, and that this was more important than the industry standard practice at the time that users would actually have experienced.
I pointed out that the only licence anyone had to copy my and others' copyrighted content from Usenet was the implicit one granted by posting in the first place, and that it was questionable whether this covered commercial use or for that matter the RFC-sanctioned archival if most people using the system didn't know that could happen. This, too was our problem, I was told.
I pointed out that splatting the hyperlink ads all over the content degraded the content and certainly would not be expected on a normal Usenet system. This, apparently, was just fair use, and the fact that US-style fair use doesn't even apply in my country (where some of the material was being posted) didn't matter.
The critics' conclusion: Too bad, get over it, you have no legal rights.
My conclusion #1: Don't ask Slashdot about legal rights, ask a lawyer.
My conclusion #2: Expect to get screwed by unethical/illegal business practices if you put your content on-line anywhere but you don't have big enough legal guns to defend it afterwards. But you should take what steps you can to minimise the effort required to defend your rights: including the non-commercial clause that applies here, for example.
My prediction: In the current, Web 2.0-ish world full of community-made content, there's going to be a lot of bad feeling sooner or later, as the numerous businesses who basically just host discussion facilities but then claim rights over the content start profiteering, potentially at the expense of those who wrote the material in the first place. The so-called "you write all the content, they keep all the money" model is a great deal for businesses but a lousy deal for the contributors, who tend to suffer from some idealistic illusion that their content is safe and the service they are supporting will continue to operate for their benefit even if it's not making enough money. A lot of people's feelings are going to get hurt as this happens more often, and this case is just the start.
My answer: If you want to share content on-line, always host it on your own terms. Don't use a commercial service for your blog, set up your own. It's almost as cheap and easy these days, and then there's no ambiguity about the ongoing hosting, the rights to the material, or the privacy implications of someone else holding potentially substantial amounts of personal data. If you want to set up a community site with friends, get a friendly geek to help you do so with your own web host, for the same reasons.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
The relevant part of the license is the following:
For starters I don't like this wording at all. It grants a right that is conditioned on the intent of the entity exercising the license which makes it horribly vague. Now obviously this passage prohibits the sale of the material (e.g. give me five bucks I'll give you this content) but what this means for other uses (like advertising) is extremely problematic. Moreover, it would be very very harmful if the courts read this license to prohibit the use of the material in a way that lets one gain commercial benefits because of the mere interest and popularity of the work.
Suppose for instance a bunch of documentation is released under this licensce for some open source software. If any use requiring the license that is motivated by commercial advantage even if the compensation is only indirect is bared then IBM would be barred from paying some of it's employees from adding to the documentation on the wiki. Sure the result of their action is just to help the project like anyone else but they motivation is to gain commercial advantage by improving documentation for their customers (along with everyone else) and they had to use the license to make the modifications (derivative work). Nor could any such project be hosted on google code or take advantage of google's summer of code. After all google's motivation in both projects is to elevate their corporate image and thus give them a competitive advantage. Hell, even contributing to the project to impress your boss or to learn how to write/code so you can get a better job would be banned.
Of course you could try to weasel about the meaning of the word "primarily intended" to avoid these consequences but then companies like this could do the same. If you get to weasel on this word they can simply weasel and say something like "yes we want to make profit but our primary intention is just to provide a commercially stable distribution mechanism for this product and that requires being a profitable company." There just isn't any good way to distinguish using the copyright to draw page views which draw ad revenue from using the copyright to look good so you draw customers without explicit language in the license to make this distinction. You can't make the license mean "whatever I find objectionable is off limits."
Ultimately I think we are all better off if the non-commercial aspect of this license is interpreted narrowly, i.e, it stops you from charging admission to a play you are putting on with this material, putting it on a CD and charging for that CD or other direct exchanges of value for the work. As for what you do in situations like this one, you don't whine about it.
I understand the motivation for not wanting people to charge for your work or to otherwise turn your work into a commercial product but that's not what's happening here. Intuitively (though not legally) this company isn't behaving much differently than google (or slashdot in hosting our comments). They are aren't suggesting that the content isn't free or making sure you have to pay them for the work. They are just making a profit in return for hosting the material. If you don't like the ads the obvious solution is to set up an ad free alternative.
If you liked this thought maybe you would find my blog nice too:
The point everyone seems to miss is that the works are *not* licensed to GuildWiki under the Creative Commons license. GuildWiki licenses the material to the general public under the CC license.
Under the TOS, contributers license GuildWiki the right to produce derivative works without -- as far as I can tell any restrictions except that GuildWiki's subsequent licensing of the material must under CC non-commercial.
Someone purchasing GuildWiki's rights would not be a sub-licensor. They would step into GuildWiki's shoes and as far as I can tell would even be able to sell CC-NC licenses if they wanted to.
Another reason not to use the creative commons license. Getting rewarded for your work is a shifty, problematic task.
Huh? What license do you suggest for people writing articles in a Wiki? And how would that license make it easier/better for the author to get rewarded in this situation?
If the govt becomes a lawbreaker, it breeds contempt for law, it invites man to become his own law, it invites anarchy
There are many insidious things about modern copyright legislation in various jurisdictions, but I don't think immediate take-down notices are among them. Such notices are a natural consequence of the need to protect copyright in a world of effectively instant, effectively free transmission of copies with widespread abuse. The notices are just a legal tool, and like all tools, the mechanism itself is neutral and it's how it's used that matters.
(Please don't challenge that "need" now: it's how the law works today, and I don't think this is an appropriate article for the wider discussion.)
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
Aside from things like quest text and screenshots (and that's debatable) pulled directly from the game, the sort of things put on these wikis would not be derivitave works any more than a book review would be.
I don't disagree with you in priciple, but the fact is that the people who wrote the articles licensed them to the wiki under specific terms, and it has a legal obligation to follow them. They can always start again with their own work.
I think you might be dangerously over stepping the bounds of fair use in the context of this thread.
Just because you can use a portion of text under the Fair Use doctrine does not make that text's copyright yours. If you write a substantial article with fair use experts then the article is yours. On the other hand if you extract significant amount of in game text and format it nicely with a couple sentences of framing text you better have a good lawyer if you want to exert that you have copyright over that.
In many cases it takes as legal expert in copyright to determine if a work making use of portions of another work is it's own work or a derivative work. There are some cases that are fairly easy to tell one way or another, but in the case of a wiki dedicated to reproducing portions of the content of a game with commentary you will find many pages that don't fall in the easy to determin side. There may be articles on the wiki that you might be able to defend against a suit from the original content creator, but not prosecute a suit against some one taking the verbatim text.
Takedown notices are just a tool in an arsenal: Is it the tool itself that is the problem, or just the people who usually employ it?
There are very few tools in this world that are a problem if they are used by an informed conscientious individual, conversely there are very few tools that are safe when in the hands of a desperate megalomaniac.
We are all just people.
Let me get this straight: you want to enforce the legal requirements of the content license, but you don't want to use the legal system to do it. Sorry. If you want to enforce an agreement, you have to stand in front of a judge and show that the agreement is applicable and enforceable. (Retaining a lawyer is not mandatory, but is highly advisable.) There's no magical way to guarantee that everybody respects your rights as you see them.
Is this still true? I thought US law was harmonized with the Berne Convention a few years ago and you no longer have to register. Copyright exists from the instant of creation (like in the rest of the world)
You're confusing two separate things. In the US, under the current law, copyright vests in the author of a work upon creation. However, you still cannot actually bring an action for copyright infringement (with only a couple very minor exceptions) until you have registered, and the dates of first publication, registration, and the complained-of infringement are all important for determining damages. That there are certain prerequisites to get into court doesn't mean that there isn't a copyright; it just means that a copyright sans registration isn't very useful.
However, non-United States works (the definition of this is a little more complicated than it might appear) needn't be registered in order for a suit to be brought. But there's no exception for such works for the registration requirement for statutory damages and fees and costs, so it still strongly behooves the authors of those works to play ball. Personally, I think that this is unfair, and that those authors should have to register in order to get into court to begin with. I just loathe Berne and the immensely high minimum standards it sets without the slightest regard for whether they're useful. It is critical that the US leave Berne (and TRIPS, etc.) as soon as possible, or else we'll never see meaningful copyright reform.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Cheers, I understand what you're referring to, but I generally defer to my older resources as well. I find that actually behaving responsibly instead of expecting modern "lawmakers" to save me, has in fact saved me a LOT of cash, and a lot of headaches.
Care to tell me that I'm better off butting heads with some idiot in court and paying a lawyer to save me 30 minutes of due diligence???
If something is preventable then why go through court to justify something, and damaging one's health through stress and heartache, when one can research what one is accepting/agreeing to, and simply saying "nope, not worth my cash"... unless one precisely WANTS to get to court to try to iron things out using the lawmakers to hammer something into a small piece of profit...
I only go to court when I have to... which is roughly never. Preventable things, in my case, are just that... prevented. Thanks though. You've made my stay on slashdot, yet again, enjoyable.
" What luck for rulers that men do not think" - Adolf Hitler