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Sony The Media Entertainment Your Rights Online

Wikia and Sony Playing Licensing Mind Tricks 108

Posted by timothy
from the thanks-for-the-help dept.
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?"
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Wikia and Sony Playing Licensing Mind Tricks

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  • 1. IANAL, and, while I'm quite familiar with a lot of copyright issues, I can't venture an expert opinion about whether the license conversions would actually stand up to a lawsuit.

    2. That being said, if you're creating and editing content on someone else's website, you've got to face the risk that the content might end up being used in ways of which you don't approve.

    • by gstoddart (321705) on Thursday May 29, 2014 @08:07AM (#47118415) Homepage

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

      Lots of people created the content in CCDB, and then the organization took it private and said "ours now".

      Sooner or later, it seems like every entity which relies on other people to make their content decide that they now own it and can make it closed.

      It's a great business model, but it pretty much screws over the people who actually built your product.

      • by BobMcD (601576) on Thursday May 29, 2014 @08:32AM (#47118635)

        It's a great business model, but it pretty much screws over the people who actually built your product.

        ...this phrase describes basically every business model, ever.

        • Even now it's possible to just make a good product, treat your employees right, and sell it for a fair price.

          Some personal examples in the woodworking tools category: Lie-Nielsen Toolworks, Veritas Tools.

      • by Jane Q. Public (1010737) on Thursday May 29, 2014 @10:11AM (#47119597)

        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.

        • by Anonymous Coward on Thursday May 29, 2014 @11:49AM (#47120707)

          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?

          • 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?

            These are some very good points; you should at least get an account so that they start at a Score of +1 or +2 instead of 0, and are more likely to be seen.

        • by gstoddart (321705)

          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".

          Well, an EULA is a contract. Courts have upheld that the terms of an EULA can be changed arbitrarily by the ones who issued it.

          Since you've already agreed to the changes they make in the future

          • Well, an EULA is a contract. Courts have upheld that the terms of an EULA can be changed arbitrarily by the ones who issued it.

            Not only is that a very gross generalization, it is untrue in almost all cases.

            First off, a EULA is a license agreement for use of a product. ToS is for a service. That's not nitpicking, it is in fact an extremely important difference.

            I studied EULAs rather extensively in Business Law at university. Their history is interesting and also legally very important. As it turns out, EULAs have been tried by the manufacturers and distributors for just about every kind of product in existence. There was even

    • That being said, if you're creating and editing content on someone else's website, you've got to face the risk that the content might end up being used in ways of which you don't approve.

      You can always host stuff on your own website. Even then someone might use your content, and you're out of luck because they can pay their lawyers indefinitely and you're just a guy with a website.

  • by mwvdlee (775178) on Thursday May 29, 2014 @08:04AM (#47118385) Homepage

    So what do the actual copyright owners say?
    The people who put stuff on those sites under a CC-BY-NC license?

    • by alen (225700)

      they licensed their content to be used as the website sees fit with no hope of compensation

      • No, they didn't. The license to use content "as the website sees fit" was included way after the content was created.

        • by alen (225700)

          and i bet there was a clause in the original license saying they can change it any time they want

          • by gstoddart (321705)

            There always is.

            "I have altered our deal. Pray I don't alter it further."

          • Re: (Score:2, Informative)

            by Anonymous Coward

            and i bet there was a clause in the original license saying they can change it any time they want

            RTFA, [wikia.com] the CC license explicitly forbids doing that:

            No term or provision of this License shall be deemed waived and no breach consented to unless such waiver or consent shall be in writing and signed by the party to be charged with such waiver or consent.
            This License constitutes the entire agreement between the parties with respect to the Work licensed here. There are no understandings, agreements or representations with respect to the Work not specified here. Licensor shall not be bound by any additional p

            • by tepples (727027) <tepples@[ ]il.com ['gma' in gap]> on Thursday May 29, 2014 @08:51AM (#47118805) Homepage Journal
              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.
              • by Jiro (131519)

                In the US, a copyright assignment is not valid unless done in writing. (Google up copyright assignment writing, for instance http://www.copyrightcodex.com/... [copyrightcodex.com] ). So either tvtropes is clueless, or that doesn't mean what you think it means.

                • by TuringTest (533084) on Thursday May 29, 2014 @09:49AM (#47119323) Journal

                  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 [wikiindex.org], and were outraged when they learned that they couldn't legally put it down. Since then, another fork has been created [wikiindex.org] 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.

                  • by Rakarra (112805)

                    Is there an article available that details this? wikiindex is pretty vague; I'd be interested in finding out just what pages were censored and if there's discussion about it on tvtropes.

                • by tepples (727027)

                  In the US, a copyright assignment is not valid unless done in writing.

                  True, but now I want to see how copyright law determines whether "an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent." I take "in writing" to refer to being "fixed in a tangible medium", such as anything stored in the server's access log or a user properties table. And if clicking something amounting to "I agree to these terms" on the get known page doesn't constitute "signed", this wo

                  • Clicking something amounting to "I agree to these terms" may very well be legally binding, but it didn't happen in those sites. They were careless enough not to provide such wording either in their post forms nor their Terms of Use.

          • and i bet there was a clause in the original license saying they can change it any time they want

            How would that be possible? Only the copyright holder can change the license under which their copyrighted works can be used. Now this site seems to have added terms to their site that claim "by using our site, you give up any restriction that your content cannot be used for commercial uses". That has at least big, big problems. First obviously copyrighted works by people using the site at some point in the past, but not anymore. Using such content is obvious copyright infringement since the copyright holde

    • Re:Copyright owners (Score:4, Interesting)

      by QuasiSteve (2042606) on Thursday May 29, 2014 @08:14AM (#47118489)

      I think there's a bit of confusion with these sites that I agree should be cleared up.

      It's not that the authors are licensing the content to the service under the CC-BY-NC license - more often than not, they're just giving the content to the service with no strings attached whatsoever.

      The service then applies a CC-BY-NC license to that content for third parties to make use of, but that doesn't mean the service can't change the license around at a later time.

      Because authors just gave the content away freely and willingly (albeit perhaps not knowingly, in terms of the extent), they don't really have grounds for complaint other than moral grounds.

      • Re:Copyright owners (Score:4, Informative)

        by TuringTest (533084) on Thursday May 29, 2014 @08:27AM (#47118575) Journal

        Wrong. Since the website doesn't have permission under copyright law to use the content, the only thing that allows Wikia to publish content they didn't create is the license under which editors have given them such permission. Users *are* licensing the content to the service under the CC-BY-NC license - they're contributing to a derivative work published under that license, so the combined work must be under the license per the terms of the CC.

        So the "willingly giving" of content was provided under a very specific license, which is the reason why many users bother to contribute at all. Not honoring the license is not only morally wrong, it's also illegal.

        • Per your sig I understand you're probably better informed than I am on these matters.

          I do wonder though whether or not you are correct in this case.

          Let's say I've got a piece of software and I decide to publish that under the GPL.

          Somebody sends me a piece of code to include in the software.

          I add it, and release it, still under the GPL. Then later on, I decide to release the code under, say, the BSD license - including the bit that was contributed by Somebody.

          Whether or not I can do so depends on what licen

          • by Chirs (87576) on Thursday May 29, 2014 @09:44AM (#47119289)

            And the legal opinion there was that to switch licenses would require the approval of every copyright holder.

            By contributing to the codebase they did not actually assign you copyright...so each contributor holds copyright in the portion that they actually wrote.

            • by OneAhead (1495535)

              And the legal opinion there was that to switch licenses would require the approval of every copyright holder.

              +1; the Linux kernel was not the only high-profile real-life case of a FOSS project doing just that. I'm actually surprised GP apparently didn't knew of that; it received ample coverage on this very site.

          • Re:Copyright owners (Score:4, Informative)

            by TuringTest (533084) on Thursday May 29, 2014 @09:58AM (#47119433) Journal

            You'd better as hell request an explicit permission to distribute the code from any contributor to your code base, and clarify in the post forms the conditions under which any contribution can be used.

            what they actually did was contribute to a codebase - a codebase under my control, and one that I can slap any which license on that I like.

            Utterly wrong. Under copyright laws, you can only relicense content that you created, or for which you've been given explicit ownership permissions; if Somebody gave you the code only under the original GPL and didn't assign copyright to you, in order to relicense the code you must first remove any such contribution, so that the result only contains the parts you wrote - otherwise, you'll break their copyright.

            This is what is going on in both wikis - the only license under which they published their work at first was the CC-BY-SA (or CC-BY-NC for some Wikias), which is the reason for the sites becoming popular in the first place as many users wouldn't bother to contribute under more restrictive licenses; and neither site requested ownership rights until recently.

            • if Somebody gave you the code only under the original GPL

              That's the part that I'm wondering about, though.

              Did Somebody actually give me code under the GPL - or did they just... give me code? At which point, should one assume it is just a gift (which you can do with as you please), that it was implied that it would be under the GPL because the project it's intended for is under the GPL, or that in fact I couldn't do anything with that code other than as stipulated in any particular communication surroundin

              • Did you get that in writing? If not, don't treat it as a gift. If you include it in the GPL code without explicit permission, you may taint the whole project. In fact, many people contribute to FLOSS and Open Knowledge projects with the explicit expectation that it won't be relicensed, and we refrain from contributing to such projects without those guarantees - so yes, there's a strong expectation that contributing to a GPL project is done under GPL terms and no others. The GPL was explicitly designed with

              • by Kalriath (849904)

                If they just sent you code with no license whatsoever, what they actually gave you is All Rights Reserved, and you may not use it at all. Period. There is no concept of "gift" in copyright.

          • by MobyDisk (75490)

            That's interesting. There is a difference between emailing the code to the maintainer and having them put it into the repository, versus getting check-in privileges and updating the repository yourself. Doing it through a web interface makes it very ambiguous though. I could see arguments both ways.

            Ultimately, it just needs to be stated clearly which model the site is using so people know what they are getting into.

            • by jp10558 (748604)

              As far as I can tell, unless you have a copyright assignment from the person who wrote the copyrighted material, there is no reason to think you would have ownership of the copyrighted material. This is why many companies that operate in such a model make you go through a process to become a contributer.

              Just e-mailing something to someone doesn't assign them copyright, and I think that sort of thing was decided long ago with mailing manuscripts.

              The web interface still is the same. In no case has anyone been

  • by szumo (618551) on Thursday May 29, 2014 @08:07AM (#47118419)
    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.
    • Get your information and "first hand knowledge" out of my rage thread. I just finished sharpening my pitchfork and everything...
    • However, the "Commercial Use Waiver" still allows Wikia any form of commercial use for any derivative work.

      There was in the Forum [memory-alpha.org] a proposal to change the wording and "make it clear that the scope and purpose of the waiver is for the placement of ads", however that clarification never arrived to the LIcensing page. What happened to those good intentions?

  • by mattdm (1931) on Thursday May 29, 2014 @08:18AM (#47118515) Homepage

    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.

    • You can bet Sony will be advertising as hell this feature in their Smart TVs marketing campaigns. Last time I checked selling TVs was a commercial activity.

    • by pla (258480) on Thursday May 29, 2014 @08:54AM (#47118829) Journal
      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?
      • It depends on whether they plan to use this feature to sell more TVs.

        Merely allowing the site to be accessed through the product features is not commercial by itself, but if the links are included by default in a prominent place (and we know they will), that counts as product placement and branding; and it can definitely be considered a commercial purpose - people pay money to that kind of placement.

        • by mattdm (1931)

          It depends on whether they plan to use this feature to sell more TVs.

          Merely allowing the site to be accessed through the product features is not commercial by itself, but if the links are included by default in a prominent place (and we know they will), that counts as product placement and branding; and it can definitely be considered a commercial purpose - people pay money to that kind of placement.

          I'm not saying that this interpretation is necessarily wrong, but... it's quite wide in scope. It seems like you are saying that not only would hosting NC content on a site with ads be disallowed, but that merely prominently linking to such content from a site with ads would be disallowed, as would any advertising for any commercial software or hardware which implied that NC content could be accessed.

          Furthermore, the suggestion that if some people sometimes pay for a particular activity, then all instances

          • I didn't suggest that activities activities which are sometimes done for money are always commercial.

            I meant that activities for promoting commercial products should always be considered commercial (even if the promotion itself is not paid), as they're always intended to produce a sale; which is different.

      • If it's "Non-commercial" then why is there an agreement?

        I suspect that, if Sony was going to use the site, they realize most people will never update their TVs, so they had to have some assurances that the site and its format, API, etc... would remain the same. Why would wikia agree to that? Oh sure Sony, out of the kindness of our hearts we'll maintain this in-perpetuity for you! No... Sony's giving them money to maintain the site in the certain way. It's clearly commercial.

  • Now that the wiki and Sony partnership is formed think of the benefits copywriters will gain from the feature of TV commercials included for their content. Furthermore their reach is also going to expand dramatically if the Tv Commercial part becomes successful on a grand scale. But not everything just as planned Lets see what happens.
  • by Greyfox (87712) on Thursday May 29, 2014 @08:47AM (#47118763) Homepage Journal
    That BMW looks pretty nice and hosting free shit for free doesn't pay for a BMW. I wish these companies would be more honest about it when they finally do decide to fuck everyone over, though. Really, how hard is it to say "Yeah, we decided we wanted a BMW"? Or "Yeah, our CEO needs a fifth house." or "We're firing all those guys because our CEO is planning to cash out a fuck-ton of stock options this year and wants three million dollars instead of two." Since no one has any privacy anymore anyway, they may as well be honest about their reasons. It's not like we won't find out a couple months later anyway.
    • by idontgno (624372)

      What you call "honesty", sharp players call "foolishly giving away tactical surprise."

      Cuz, you know, some of the suckas making them rich might object if someone explained to them that they were being suckas.

      Never forget that "dumb" fits nicely between "fat" and "happy".

  • You're putting stuff on THEIR systems. So you're supposedly going to trust them?

    They can't even keep their stupid adware system malware free on a month-by-month basis. And you think that's an ACCIDENT?

  • "...playing the odds that the insured would not consult an attorney."

    People who don't own their own businesses or aren't involved in the higher levels of a corporation don't realize that much of business behavior is defined by the expectation of the likelihood of being sued.

    Of course they can't legally just retroactively f*** everyone over, but who is going to stop them when they're likely privately indemnified by SONY.

    That's just one of the negatives of capitalism - most people try to get away with everyth

  • Delete your wiki edits/comments, so they cannot claim ownership of what you wrote.

  • by Anonymous Coward
    Migrating a wiki to your server? Tough shit, Wikia won't let you delete the one they're hosting.

Real Users find the one combination of bizarre input values that shuts down the system for days.

Working...