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Wikia tries to exclude itself from the "non-commercial" clause of our license!

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I just noticed that the tiny, tiny "Terms of Use" link in the footer of our pages is tagged with a red "New". Clicking on it, I found out that the terms of use have been changed this month, and that the current revision contains the following clause:

If you contribute to, or have contributed to, a wiki that uses a license that restricts the commercial use of your contribution (e.g., the CC-BY-NC license or the CC-BY-NC-ND license), you hereby waive such restriction with respect to Wikia’s use of such contribution and any derivative works of such contribution.

I haven't seen this been discussed here, so I guess this is another case of Wikia trying to sneak in crazy stuff. For what it's worth, I don't even see how this could even apply to edits of articles that have existed before that TOU change - but, well, it's there now. -- Cid Highwind (talk) 19:38, September 22, 2013 (UTC)

I will just state here that just having read that unilateral change does not make me agree to it. I do not waive any parts of CC-BY-NC for changes I do in the future, and much less for edits I did before that TOU was changed. -- Cid Highwind (talk) 19:41, September 22, 2013 (UTC)

---

For what it's worth: [1]. Regarding my request to remove all my contributions and derivative works thereof in case Wikia doesn't accept my non-acceptance of this unilateral TOU change, please note that I started editing this wiki nearly 10 years ago, weeks after MA was started. If you don't want a good deal of our articles gone (and of course, if you don't want to be dealt with in such way), please join my protest over there. -- Cid Highwind (talk) 20:05, September 22, 2013 (UTC)

I'm not an attorney, so I guess I need to ask what exactly that means. 31dot (talk) 20:22, September 22, 2013 (UTC)
I state here that just having read the unilateral change of the TOU it does not make me agree to it. I do not waive any parts of CC-BY-NC for changes I do in the future, and much less for edits I did before that TOU was changed.
31dot, it means that wikia is going to sell MA information to other websites, like rotten tomatoes, in violation of the site's copyright terms, and are trying to get you agree to that simply by viewing the change to the text. If another admin doesn't already have a way to contact you off site, you should make sure at least one does, since the endgame here for us may be the filling of a copyright infringement class action lawsuit and DMCA takedown notice against wikia. - Archduk3 21:23, September 22, 2013 (UTC)

31dot: not sure which part you need clarification for, so bear with me if the following is too detailed. :)

What happens on a wiki is that someone publishes written content (for which he then has a copyright), and someone else takes this content, changes it and publishes it again (this is what the legal term "derivative work" refers to). Without special agreement of the first author, this would not be allowed, so wikis operate under a license that does allow editing of copyrighted works. One of these licenses is the "CC-BY-SA" license (under which most wikis operate), another one is the "CC-BY-NC" license (under which this wiki operates). These two licenses agree in their first clause ("BY", meaning that attribution is necessary), but differ in their second clause ("SA" means "share alike", "NC" means "non-commercial"), which makes these two licenses incompatible with each other. It is not possible to take "BY-SA" content (say, from Wikipedia) and include it here - and it is not possible to take our content and include it on Wikipedia.

This incompatibility with the rest of the Wiki-world was not the intention when it was decided to use this specific license - but it still saved our butt more than once, when "outsiders" tried to take more control over this wiki than would have been good for its community. With the clause now introduced by Wikia, this might potentially change. To "waive" some clause means to agree that it no longer applies, in this case restricted to Wikia. Basically, if that clause is valid, it means that our content would no longer be under a "CC-BY-NC" license when used by Wikia, but just under a "CC-BY" license. Wikia could then take this content and legally republish it under a "CC-BY-SA" license. If that happens, and the content gets subsequently changed by someone who also uses the "CC-BY-SA" license, that new content can not be used by us, although we've done most of the work for it.

Now, if Wikia reacts to this, they will probably state that this clause was included solely to further "legalize" having ads next to our content when it is presented on this site, and that they don't plan on doing something evil. In this case, though, the "waiver" they added to their Terms Of Use could have been much more restrictive by actually stating which use cases they ask us to allow instead of this blanket statement. Also, they could actually have mentioned that TOU change to us, which didn't happen. Now, for what it's worth, someone noted that this is not actually a new change, but something that already happened last year. That just adds insult to injury, because it means that it is not this recent TOU change that we haven't been informed about, but a whole bunch of changes throughout the years. Apparently, Wikia thinks they simply and unilaterally can change the contract we have, and that any changes automatically apply, even for past edits. This is not the case, there's something like a protection against surprise changes of a contract in most legislations. I'm pretty sure this applies here.

Bottom line: we need to protest that change, now that it is known to us. Otherwise, there's at least a potential for losing control over our content and this wiki in the long run. It wouldn't be the first time something like this happens. -- Cid Highwind (talk) 08:32, September 23, 2013 (UTC)

Two things from the discussion over there: First, as I found out, any waivers or any "implicit consent" of Wikia failing to fully comply with the license (which may or may not be the case when it comes to ads next to our content) can only be considered valid if we as the licensors expressly agreed to that. Simply adding the waiver to some licensing page does nothing (much less if their licensing page even contradicts our licensing page, I guess).

Second, Wikia answered and stated that this waiver was, in fact, added solely because of some "implicit waiver" that Wikia thinks exists regarding ad placement on this wiki. Regardless of whether this interpretation would really hold up in court (I don't think it would), I believe it would be best if that "explicit waiver" was restricted to exactly this use case, and told Wikia as much. -- Cid Highwind (talk) 09:01, September 24, 2013 (UTC)

I'd like, if I could, to add a few points to this discussion. Here's what I said on Community Central:
Acer4666 wrote:
Is this not just codifying a previously unwritten agreement that MA had with Wikia - that they're allowed to put adverts on the content when hosting it themselves, but that's the only commercial use allowable for it?"
This is essentially correct, and this best represents the reason for the change in wording.
We wanted the licensing page to accurately represent the state of play. Without commenting on whether or not past statements regarding the distinction between “using” and “hosting” were correct, we felt it was more accurate to say that as far as Wikia is concerned, the users of the small handful of wikis that maintain an NC license have accepted some commercial activity, at least as far as the placement of advertisements. By continuing to contribute with the certain knowledge that Wikia is performing some commercial activity with the content (ads), there was already an implicit waiver of the noncommercial aspect of the license for Wikia.
What the waiver boils down to is that you allow Wikia to use the content for commercial purposes, most notably placing ads on the wiki. You waive the commercial restriction for us, which makes hosting the community possible. The waiver does not allow us to relicense the content.
Let me be clear: we have no intention to relicense any content you and the other users of communities like Memory Alpha have created under any other terms. Relicensing is not on the agenda.
That said, we do place ads on the material.
We updated the language on the licensing page to reflect this reality, not impose a new one. We absolutely respect the NC part of the license. Look no further than the recent Rotten Tomatoes partnership for proof of this. If our intention was to try to bend the license beyond it’s intentions, we would have included Memory Alpha content in that promotion. But we didn’t because we know the license doesn’t allow it, and we respect that. We have even taken steps to keep API access to these communities restricted, so that they can’t be indiscriminately reused and the license terms are respected.
This licensing page is designed to summarize and explain the licensing schemes on Wikia, and as such we wanted to make it as accurate as possible in it’s description of the different licenses and how they function for our communities. It is meant to be more descriptive than prescriptive and the change we are discussing was made a year ago, with no sinister intent and no sinister follow-up action.
As the changes to the policy page were made to reflect the situation as it stands, we didn't affirmatively inform the relevant communities. If we did make a radical alteration to our Terms of Use or tried to change the license itself, we absolutely would have made sure that everyone who contributed to these communities knew about it.
So, yes. It does come down to the placement of ads. A waiver can come in many forms, and let's face it: there's an inherent contradiction in the act of placing advertising (which generates revenue) on a wiki that absolutely forbids commercial conduct, or there would be if the users of that wiki hadn't shown by their actions (continuing to edit) that they accepted that commercial activity. All the commercial use waiver is designed to do is highlight the fact that this community has accepted the commercial activity, or to put it another way waived that restriction as far as Wikia is concerned.
I would specifically like to address the statement "Basically, if that clause is valid, it means that our content would no longer be under a "CC-BY-NC" license when used by Wikia, but just under a "CC-BY" license. Wikia could then take this content and legally republish it under a "CC-BY-SA" license." by utterly refuting it. The language of the waiver, while broad in some respects, absolutely does not allow the relicensing of the content under different terms. We understand that, and have no intention for doing so. Relicensing the content is not possible, not desired, and not planned. The license covers Wikia's use, not the use by others. Anyone else using the content would have to abide by the full CC-BY-NC.
I would also point out that we changed the policy page last year, and in the time since we have not only excluded Memory Alpha from promotions like our Rotten Tomatoes partnership due to licensing restrictions, but we have also taken steps to restrict the API access to the wiki. I understand the inclination to be suspicious, but we really do respect the license. I think openly acknowledging the way it actually works (you waive the noncommercial aspect for Wikia, and only Wikia) is more respectful of the license than the inherent tension of pretending it doesn't exist. It could actually shore up the safety of the content by precluding arguments that you actually had no intention of enforcing the noncommercial aspect.
Let's say Outside Website X imports all your content, placing ads on it. You complain, and they assert that it has existed here at Wikia for years under the same license with ads, so it doesn't violate the terms of the license. Without passing comment on the strength of that defense, you could now point to the waiver and assure them that the placement of advertisements was permitted by Wikia alone.
Of course, we definitely hear everything you are telling us in this thread, and we are listening. -- semanticdrifter @Wikia (help forum | blog) 13:04, September 24, 2013 (UTC)

Among other things, I have a problem with the conjunction in the "waiver" bit I cited above. Repeated here:

[Y]ou hereby waive such restriction with respect to Wikia’s use of such contribution and any derivative works of such contribution.

Now, you probably intended for both parts of the conjunction to include the phrase "Wikia's use of" - but currently, that isn't the case. Instead, it semantically is the same as:

You hereby waive such restriction with respect to Wikia’s use of such contribution.
You hereby waive such restriction with respect to any derivative works of such contribution.

It is at least unclear if the commercial use of derivative works is restricted to Wikia - and, probably, that restriction legally doesn't exist. This should be changed. Also, you state that you are asking for this waiver solely because of ad placement - but that restriction is not a part of the waiver. It should be. Last but not least, you haven't addressed the fact that the CC license explicitly states that failure to call out a breach of license is not the same as consenting to it. Given the fact that everything we heard from Wikia in the past years was that "we really aren't in breach of the license, because we're not using your content", it sounds somewhat dishonest to now hear something along the lines of "you have implicitly agreed to our breach of your license". No, we haven't - at most, it has been unclear to us whether a breach really exists, and we were content enough with the situation to not research this possibility any further.

As far as I am concerned, I would still be content enough to not do any further research into the commerciality or non-commerciality of ads outside a distinct "content box", if that waiver gets restricted as explained above, and as long as the ad situation doesn't get worse. That doesn't mean I implicitly or even explicitly waive anything. -- Cid Highwind (talk) 14:20, September 24, 2013 (UTC)

We understand your issues with the waiver as it is. We hear what you're telling us, and we are currently reviewing the policy page with our legal counsel with an eye toward narrowing the language. We will be making changes to that section based on your feedback. I will keep this community updated, but for now please understand that we are taking your concerns to heart. Best, --semanticdrifter @Wikia (help forum | blog) 22:43, September 24, 2013 (UTC)

I wanted to offer an update on this issue. We have met with our counsel, and discussed your concerns and the overall state of affairs. We definitely want to address the ambiguity of advertisements on a wiki with the NC license, but we are absolutely willing to narrow the protection we are seeking to make clear that we are only talking about advertisements. We are still working on the final language, but suffice it to say it will be much more narrowly focused on the specific use case of placing advertisements. I will have more updates soon. --semanticdrifter @Wikia (help forum | blog) 20:48, October 15, 2013 (UTC)

Hello, Memory Alpha. I wanted to let you know that we have tweaked the language in order to make it clear that the scope and purpose of the waiver is for the placement of ads. The section now reads:

"If you contribute to, or have contributed to, a wiki that uses a license that restricts the commercial use of your contribution (e.g., the CC-BY-NC license or the CC-BY-NC-ND license), you hereby waive such restriction to the extent necessary to permit the placement of advertisements in proximity with such contribution."
I think it specifically addresses the issues raised above, and I hope we can communicate better in the future. Thanks, --semanticdrifter @Wikia (help forum | blog) 20:35, December 6, 2013 (UTC)

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