Wikia and Sony Playing Licensing Mind Tricks

TuringTest (533084) writes "Popular culture website Wikia originally hosted its user-contributed content under a free, sharealike Commercial Commons license (CC-BY-SA). At least as soon as 2003, some specific wikis decided to use the non-commercial CC-BY-NC license instead: hey, this license supposedly protects the authors, and anyone is free to choose how they want to license their work anyway, right? However, in late 2012 Wikia added to its License terms of service a retroactive clause for all its non-commercial content, granting Wikia an exclusive right to use this content in commercial contexts, effectively making all CC-BY-NC content dual-licensed. And today, Wikia is publicizing a partnership with Sony to display Wikia content on Smart TVs, a clear commercial use. A similar event happened at TV Tropes when the site owners single-handedly changed the site's copyright notice from ShareAlike to the incompatible NonCommercial, without notifying nor requesting consent from its contributors. Is this the ultimate fate of all wikis? Do Creative Commons licenses hold any weight for community websites?"

Comments

CC-BY-NC are excluded

[szumo]

CC-BY-NC licensed Wiki's are not included in content presented by Sony apps (only CC-BY-SA ones are). Disclaimer: I used to work for Wikia on this project so have first hand info about this.

Re:Nothing is free

[Anonymous Coward]

Not quite true - there are some people out there with genuinely altruistic motivations. It's just that the West has managed to make a religion out of selfishness, so they're few and far between, and often lambasted.

Why "clear commercial use"?

[mattdm]

This is exactly the problem with "NC". To you, this is "clear commercial use". Is it because a big company is involved? Two companies? We assume money is changing hands, but... maybe it's not. The license says "primarily intended for or directed toward commercial advantage or private monetary compensation". What if the money goes towards "supporting the community"? What exactly is "commercial advantage" in this context? I'd have to ask a lawyer, and... unless I was paying them to advise on a specific case, I doubt they'd actually give a straight answer.

Overall, "noncommercial" licenses are problematic and should be avoided. I understand the intention, but it's hard to make a license that actually gets there.

Re:Why "clear commercial use"?

[pla]

For a change, I need to agree with Sony (and you) on this one. Whether or not this infringes on "NC" really depends on exactly what they've done with it.

Do they simply display it in a browser-like interface, while preserving the essential webpageyness of the content? If so, I'd call that no more "noncommercial" than using Internet Explorer on Windows to visit Wikia directly. If, however, they've completely butchered the content to fit their marketing department's retarded whims and removed any traces of attribution in the process, that clearly goes well beyond grey area.

We've already accepted that every TV will eventually function as a more-or-less fully capable streaming media center; we also need to accept the implications of that on exactly the present issue. If device-X has a web browser, does device-X need a special license to view any webpage not explicitly marked as free-for-all? And if so, why doesn't MSIE need the same license? What if the TV runs Win8 and actually displays the content in MSIE?

Assignment of copyright

[tepples]

This applies only if contributors provide their contributions under the License. TV Tropes Foundation now claims that contributors provide provide their contributions not under the License but instead under assignment of copyright: "By contributing content to this site, whether text or images, you grant TV Tropes irrevocable ownership of said content, with all rights surrendered" except for fair use. So TV Tropes Foundation becomes the copyright owner, and it licenses your edits back to you under the License.

Re:Assignment of copyright

[TuringTest]

TV Tropes Foundation NOW claims that contributors provide provide their contributions not under the License but instead under assignment of copyright

It does it now, but it didn't do it then. That's the core of the matter at both Wikia and TV Tropes. The large majority of both websites was only contributed to them under a Creative Commons license.

So either tvtropes is clueless,

TV Tropes is clueless. They made the license change because they discovered that someone had created a (partial) fork, and were outraged when they learned that they couldn't legally put it down. Since then, another fork has been created containing the complete content of the last version released unambiguously as CC-BY-SA in summer 2012, including all the content that was censored because of Google Ads. It's a fascinating story, really.

Re:Creating Content on Someone Else's Site Has Ris

[Jane Q. Public]

More or less the same thing happened with Gracenote as I recall.

However, that doesn't really address any of the issues that GP raised.

IANAL either, but generally speaking, a "licensing agreement" is a contract. And again generally speaking, one is not allowed to change the terms of a contract and make them "retroactive". At least not without the consent of all parties involved. If you did, it would no longer meet the very definition of "contract".

I mean, just think about it. Could your cable company say "We're going to make you a 'retroactive' customer and charge you for all past years as well"??? Of course not.

Copyright by default

[tepples]

My sites free. I pay to host it. Anyones free to go there, download my content. I've no intention of ever applying ANY license to any of it. You can even use it for commercial purposes if you like. I don't care. If you want to be nice you should throw in an attribution though.

If you don't apply an explicit license, standard copyright applies, and that is "all rights reserved, no copying allowed beyond fair use." I'd recommend applying the CC-BY license or the GNU All-Permissive License to your pages.

Re:Creating Content on Someone Else's Site Has Ris

[Anonymous Coward]

Your post raises some interesting questions I don't see addressed elsewhere in this thread:

Every user-content-driven site presumably has terms of service which dictate how your contributions can be used. For example, let's say you upload a picture to be used on a UserContentEncyclopedia.com article and you specify the license. UserContentEncyclopedia.com then changes their ToS to say anyone who contributes content to UserContentEncyclopedia.com henceforth or in the past grants them a waiver to use it for commercial purposes, regardless of the terms of the license originally granted.

1. If the ToS also says, "your use of this site signifies your acceptance of these terms", how do you signify that you don't accept? Never visit the site again?
2. If you never "use" the site again, will UserContentEncyclopedia.com realize this, and refrain from using your past contributions commercially since you haven't signified acceptance of the terms? Or will UserContentEncyclopedia.com assume that the continued presence of your past contributions constitutes "use"?
3. Does any site with ToS actually keep track of which registered users have accepted updated ToS?
4. Have ToS clauses such as (1) ever been tested in court, and judged to form the basis of a legally binding contract?
5. What if I don't accept the implied contract that merely visiting a website constitutes acceptance of its ToS?
6. Could someone use the reasoning in (5) to claim they don't accept the implied contract that signing their name on a physical paper contract constitutes acceptance of the terms therein?