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How to Stop Commerial Use of Copyleft Materials? 232

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?"
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How to Stop Commerial Use of Copyleft Materials?

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  • DMCA (Score:5, Informative)

    by Halo1 ( 136547 ) on Saturday September 15, 2007 @07:37AM (#20614949)
    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...
    • I would have thought this answer was so obvious to anyone who knows Slashdot that the question wouldn't even have been asked. It's been used against decent people for far too long, about time it was used against weasels.
      • Re:MOD PARENT UP (Score:5, Interesting)

        by Elemenope ( 905108 ) on Saturday September 15, 2007 @10:48AM (#20615989)

        Well, while /.ers are quite aware of DMCA takedown notices, most find their deployment a distasteful tactic at best. I don't think it is an issue of awareness so much as an issue of commitment to principles. While the tactic is normally employed by scary and disreputable corporate drones, the landscape becomes more complicated when it is employed by the so-called "little guys". 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?

        • Re:MOD PARENT UP (Score:5, Insightful)

          by Anonymous Brave Guy ( 457657 ) on Saturday September 15, 2007 @11:52AM (#20616477)

          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.)

        • The problem with DMCA takedown notices is that they're essentially legal spam. It costs absolutely nothing to send them, and there's no obligation to prove their claims before requiring action on the host's part.
        • Re:MOD PARENT UP (Score:5, Insightful)

          by Original Replica ( 908688 ) on Saturday September 15, 2007 @02:19PM (#20617633) Journal
          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.
    • by julesh ( 229690 )
      This is probably the only thing that you can do without hiring a lawyer.

      OTOH, you may want to reconsider the whole not hiring a lawyer thing. As I understand it, copyright cases in the US are unusual in that the plaintiff in a successful case can usual expect to get his lawyer's fees paid by the defendant. This seems to me to be a pretty clear-cut case. And likely a class action too, depending on how many contributors there were to the wiki. You will quite possibly find a lawyer willing to take on your
      • Re:DMCA (Score:5, Informative)

        by cpt kangarooski ( 3773 ) on Saturday September 15, 2007 @12:00PM (#20616557) Homepage
        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.
        • You cannot bring a regular copyright infringement suit in the US at all unless you've registered the work with the copyright office.

          I was under the impression (obtained from that vast fountain of legal knowledge, the Internet) that it wasn't strictly necessary to register your work with the Copyright office. You could sue for larger damages if you did, but it was not actually required. Is this incorrect? Or is there some additional detail lurking in the word "regular" that isn't apparent?

          Curious, sin

          • Re:DMCA (Score:4, Informative)

            by cpt kangarooski ( 3773 ) on Saturday September 15, 2007 @01:42PM (#20617401) Homepage
            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.
    • Re: (Score:3, Interesting)

      by mpe ( 36238 )
      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...

      If you use an RIAA one for source make sure you remember to clearly the defendant and what they have done wrong though :)
      • If you use an RIAA one for source make sure you remember to clearly the defendant and what they have done wrong though :)
        See, this is why you shouldn't split your infinitives. If you're not paying attention, you can just plain forget the verb...
    • by KingSkippus ( 799657 ) * on Saturday September 15, 2007 @10:52AM (#20616031) Homepage Journal

      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 [paragonwiki.com], 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 [wikia.com] 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

      • by EconomyGuy ( 179008 ) on Saturday September 15, 2007 @11:45AM (#20616429) Homepage

        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.
        • 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

          • If that's the case--I honestly haven't checked--then the game company doesn't need a TOS for protection anyway, because that's just plain old copyright infringement, end of story. However, a creative lawyer might try to argue that the organization of the wiki itself is a copyrighted work. But that really wouldn't help defuse an underlying claim of infringement.
            • the game company doesn't need a TOS for protection anyway

              True, but it never hurts to have it anyway.

              But the real purpose of the ToS isn't to protect the company (thought that's probably part of it). These companies for the most part want people to use their content. Without allowable use like this, then there would not only be no game wikis, but no fansites, no fan art, etc. This is one of the rare cases where a ToS is more about what you can do than what you can't.

              • Ah, now that is an interesting point! If I have permission to use the game companies materials, and I combine it with my own, I have created a derivative work. Unless, of course, it's nothing more than just a copy & paste job... which is boring.

                So now you enter a whole new realm of intersting theory. We've got permission to use the source material and a derived work based upon that permission. For the game copy to "own" that derived work there must be an assignment, and the trick about assignments
          • by mkweise ( 629582 )
            Even so, wiki contributors still hold the copyright to their derivative works. In order to legally use a derivative work, it must be licensed from all copyright holders therein.
          • The screenshots may not fall under fair use, but the verbatim copies of text is not all that essential for the Wiki.

            Here's an example... Everything here should be OK under fair use: http://gw.gamewikis.org/wiki/Profession [gamewikis.org] (even the profession icons are custom, not ripped). Everything here should probably also be OK, because it's only a small cropped part of a screenshot: http://gw.gamewikis.org/wiki/Weapon [gamewikis.org] . I'm not sure about things like these though, which has excessive quotes as you say: http://gw.gamewi [gamewikis.org]
        • Re: (Score:3, Insightful)

          by VenTatsu ( 24306 )
          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.
      • by Rix ( 54095 ) on Saturday September 15, 2007 @11:53AM (#20616491)
        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.
      • And please Guys,
        Before sending a DMCA take down notice, make a phone call to the guy in question and ask for what you want from him, or try to remove the content yourself from the wiki (with a short explanation identifying yourself of course). Usually, site owners are willing to honor their users requests -- even if it means losing a ton of good content -- I know, I've seen this done on a number of sites.

        Using the hammer of the legal system before exhausting your other more friendly options is the wrong
      • Completely wrong and out of line with US Copyright Law.
    • 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...

      You will need a lawyer and buckets of money to throw upon the legal fire you will create. Be prepared to be counter sued. Some guesses: Restraint of trade, interference with a contract, intentional infliction of emotional distress?
    • You shouldn't even need a lawyer for that

      *NEVER* get involved in the legal system without a lawyer except for things like small claims court, traffic court, etc. You will "by definition" be acting as your own lawyer and therefore be a fool. Seriously, it can end up costing you far more than a couple of hundred buck for a short conversation with a lawyer. Sometimes you can get a consultation that includes advice for no charge.
    • by fm6 ( 162816 )
      And why should Wikia pay any attention to a takedown notice signed by somebody who isn't a lawyer and obviously lacks the resources to hire one?
    • It's also worth noting that if not just one but many owners of their intellectual property, or their authorized agents, send take down notices to the same hosting service, that would get much more attention than the average one-off DCMA spam. Letters like "I'm the legal owner of some of the the intellectual property being hosted at offending.url.here ..." or "We are the authorized representative of John Smith, the owner of some of the intellectual property hosted at ...." all sent to the same hosting servi
  • by adrianbaugh ( 696007 ) on Saturday September 15, 2007 @07:38AM (#20614953) Homepage Journal
    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.
    • by julesh ( 229690 ) on Saturday September 15, 2007 @07:51AM (#20615021)
      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.
      • Sure, but the "primarily intended" bit leaves a bit of wriggle room that I would expect a competent lawyer to argue over for long enough to make the legal fight unaffordable unless the original authors have fairly deep pockets or can persuade the EFF to take up the case.
    • by budgenator ( 254554 ) on Saturday September 15, 2007 @08:27AM (#20615167) Journal
      Here's the rub, much of the original content was issues under CC NC-SA [creativecommons.org] but the site is now licensed GFDL 1.2 [gnu.org], 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 [eff.org] or legal aid would be interested.
      • Changing the license was really bad form

        Not only that, it was illegal. The only person who has the right to change the license is the copyright holder. If something is licensed under a particularly permissive license, you can possibly distribute copies with additional conditions (unless it's copyleft, like the GPL, and doesn't permit additional conditions, unless those additional conditions are explicitly allowed, as are a few in GPLv3). Most Free licenses contain the boilerplate 'copies must include...' indicating that the original license m

        • when I said Changing the license was really bad form i was refering to sliding in the new license by putting the notice in a little tiny link at the bottom of the page where it might seem the placement was to be specifically unnoticed as it applied to new content added. The site seems to have applied the new license to the old material that was licensed CC NC-SA which is clearly a no-no and illegal.

          Since making the first post and this one I did look more fully at the site in question and didn't see anythin

    • by zotz ( 3951 ) on Saturday September 15, 2007 @08:50AM (#20615271) Homepage Journal
      Well, the write up says that wikia is a commercial entity. According to the generally accepted thought about the NC option (from what I gather) a for profit corporation cannot avail themselves of any NC based licenses whatsoever.

      By definition, it is said, everything they do is primarily for profit.

      Personally, I don't like seeing non-Free licenses called copyleft, but that is a different argument. "Copyleft - all rights reversed" just doesn't work well in that case.

      all the best,

      drew

      http://openphoto.net/gallery/index.html?user_id=178 [openphoto.net]
      Underwater Joy
      • According to the generally accepted thought about the NC option (from what I gather) a for profit corporation cannot avail themselves of any NC based licenses whatsoever.

        I don't think the license makes this claim and I've seen very little legal writing to support the conclusion. Certainly the license could have come out and said that, but it didn't... and probably for good reason. Consider google.org, a for-profit corporate entity, which makes zero dollars. I don't believe it would be prohibited from using NC materials. What about google.com... it does stuff that has no immediate financial gain... like blogger, for example. No ads there unless the blog writer wants

        • by zotz ( 3951 )
          "I don't think the license makes this claim and I've seen very little legal writing to support the conclusion."

          Well, here you go;

          http://wiki.creativecommons.org/DiscussionDraftNonCommercial_Guidelines [creativecommons.org]

          Not that I disagree with your reasoning mind you. Go check the cc-licenses mailing list for many discussion re NC and how much fun it is.

          NC is not something I would want to touch.

          all the best,

          drew
    • by El_Muerte_TDS ( 592157 ) on Saturday September 15, 2007 @08:50AM (#20615277) Homepage

      How carefully is the license written?

      It was written using a remote controlled non explosive pencil on an environment safe piece of paper in an bunker on a remote location. The writing speed was one letter per hour and the operator was located in an other timezone.

      So I think it's safe to say it was very carefully written.
    • by littlem ( 807099 )
      Either way, the story title is misleading (just for a change on Slashdot...): if it doesn't permit commercial use then it isn't a copyleft license in the recognized sense of the word.
  • by onion2k ( 203094 ) on Saturday September 15, 2007 @07:38AM (#20614959) Homepage

    the crude path of mass vandalism


    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.
  • ...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.
  • Why make it difficult? Just let the commercial community wither and die.
  • by Gopal.V ( 532678 ) on Saturday September 15, 2007 @07:44AM (#20614991) Homepage Journal
    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?)

    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 ... don't turn this place into a land of "lawyers and order".
    • by zotz ( 3951 )
      (except that they didn't get $$$ - but did they ever expect money in return for CC-NC content?)

      My guess would be yes. If they used BY-NC-SA instead of BY-SA, it would possibly be because they do expect money is someone should make commercial use of the work.

      I myself think NC makes for poor licenses, but none the less...

      I personally prefer GPL and BY-SA though I am not fully happy with BY-Sa as it stands. (Not commenting on the GPL happiness at all.)

      all the best,

      drew

      http://rukiddinmez.blogspot.com/ [blogspot.com]
      R U Kiddin
  • Easy (Score:2, Insightful)

    by St.Anne ( 651391 )
    Fork 'Em
  • by Arioch of Chaos ( 674116 ) on Saturday September 15, 2007 @07:51AM (#20615019) Journal
    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.
  • by dirk ( 87083 ) <dirk@one.net> on Saturday September 15, 2007 @08:05AM (#20615077) Homepage
    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?
  • by 3seas ( 184403 ) on Saturday September 15, 2007 @08:10AM (#20615091) Homepage Journal
    ... the software industry?

    1) come out with useful but buggy software
    2) have buying customers users report bugs and make suggestions for improvements
    3) sell upgrades back to them.
    4) don't pay them for any of their work
    5) Copyright and patent teh improvements you got from the users.
    6) do like autodesk, don't allow the customer/users to sell their used software.

    Here you have game players doing a bunch of documentation for free on a game that is commercial.

    The web site made money off of the unpaid efforts of the documentators efforts in on site advertising and the sale of the site.

    step Seven:

    lock down the documentation and site and require all contributors to pay a monthly fee for access.

    How can the contributors respond?

    Copy the site to another location and sue the pants off of any attempt to stop this.

    Using the DMCA to shut the site down is contradictory to the original intent of the contributors.

    Consumer deception was applied by the site owner.

  • by pla ( 258480 ) on Saturday September 15, 2007 @08:37AM (#20615217) Journal
    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.
  • This seems pretty clear to me:

    Noncommercial. You may not use this work for commercial purposes.

    Unless the site owner had an agreement outside the content license (ToS?) then he had no right to license the content to anyone else or sell it to anyone else. IMHO the only relevant question is whether the purpose of the site is commercial.

    If it's hosted in the US a DMCA take-down notice should be adequate to get your material off the site. If it's in Germany, that's an interesting question. I'm not sur

  • Other replies have spoken about scraping this particular site's CC content and copying it to another wiki. That's fine if you can get to the content, but what if a hypothetical site abruptly converted to a fee-for-access format? Obviously you'd then need to either pay to recover what should be freely available, or scrape the data from someplace else, such as Google's cache or the Internet Archive. That assumes, however, that the content is available from those places, which could be prevented by adding s

    • by Teancum ( 67324 )
      I would like to start out here that I think the whole notion of NC licenses to be something really silly in the first place, and the debate over NC vs. Commercial content has nearly nothing to do with "open source" or "copyleft". That this issue is dealing with non-commercial licenses seems to be where the real "ethical" questions are being raised, not that it is copyleft content.

      All this said, your question about "but what if a hypothetical site abruptly converted to a fee-for-access format?" is a vaild p
  • Usenet archives (Score:5, Insightful)

    by Anonymous Brave Guy ( 457657 ) on Saturday September 15, 2007 @08:55AM (#20615299)

    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.

  • by logicnazi ( 169418 ) <gerdesNO@SPAMinvariant.org> on Saturday September 15, 2007 @08:55AM (#20615305) Homepage
    I actually doubt that they have a legal case. Moreover, the slashdot/opensource/etc community should be strongly opposed to any court ruling which would ban this sort of behavior.

    The relevant part of the license is the following:

    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 connection with the exchange of copyrighted works.


    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.
  • Understand up front that you can't have it both ways. You may either refuse the use of your work or not. They may show ads or collect the works into a compendium or do whatever they want. This is not within your control. The only thing within your control is whether or not they use the particular works you provided.

    To that extent, you may remove -YOUR- works if you still have the power or demand their removal via a DMCA takedown if you've been shut out. You may also sue, however without a registered copyri
    • Understand up front that you can't have it both ways. You may either refuse the use of your work or not. They may show ads or collect the works into a compendium or do whatever they want. This is not within your control. The only thing within your control is whether or not they use the particular works you provided.

      That's not true at all. You can condition the license under which they may use your work. If the license said that they have to pay you so much or else the license terminates, and they don't pay,
      • That's not true at all. You can condition the license under which they may use your work.

        Only if they express acceptance of your profferred license. That decision is entirely within their control. The only thing you control is whether or not they're permitted to use your works. As I said.

        I you can cite an appellate case where the terms a license were held to be binding and enforceable despite the defendant's explicit rejection of the full license, I'll read the decision with great interest.
        • Certainly. If they reject the license and go ahead and use the work anyway, and that use is unlawful, then they're just infringing. If that's the case, then you can sue them for damages and seek an injunction so that they don't keep doing it.

          Really, the only way that someone can lawfully engage in acts which otherwise fall under the exclusive rights of copyright without permission from the copyright holder (which, as we seem to have agreed, can be conditioned) is if there's an applicable exception.
  • Isn't it why you make donations to the Electronic Frontier Foundation ?
    • Isn't it why you make donations to the Electronic Frontier Foundation ?

      I'm pretty sure that the EFF is there to promote *liberties* not *anti-community-restrictions* like the CC NC clause.

  • 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?
    You can't. Either the CC "no commercial" license has a punative clause, in which case you should be able to get an attorney on retainer, or it doesn't, and it's a license with no teeth.

    Either suck it up, sue, or fork.
  • Correct me if I'm wrong, but shouldn't the fault lie with the previous owner? He's the first link in the profit chain, he sold the site to make money, therefore he broke the license it was released under.
  • Your Own Catch 22 (Score:3, Insightful)

    by fm6 ( 162816 ) on Saturday September 15, 2007 @02:30PM (#20617717) Homepage Journal
    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.
  • I remember quite clearly that once upon a time non-commercial use meant that you didn't charge anyone for the material. It has always been the norm for the person redistributing the materials to serve ads on the sites to cover their expenses and if they can make a buck or two then more power to them. It isn't a sin to make a profit, as long as they provide a clean, easy to use, and accessible repository of content at no charge then they are empowering the internet by hosting more content for the masses. If
  • Oh please God, NOOOOOOO! Anything but that! We can't have people making money! Someone, please, stop them!
  • I don't see how selling it to Wikia would be possible, since the contributors are submitted at the time of an incompatible license (unless Wikia decides to "Share Alike" for this wiki). It doesn't even help if GuildWiki changes the license now. It would still be a breach of the terms approved by the contributors up until the sale, in case the license will change.

    This was why ArenaNet handled things differently. They did it this way: Started wiki.guildwars.com as the official Guild Wars wiki, that is instead

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