Discussion (Traditional Legal Frameworks, Open Project Frameworks, Differences)

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Background The work The Art of Community (“AOC Project”) will be created by two authors, working with designated O’Reilly editors. The public will be invited to participate by uploading content, adding contents, and editing text. O’Reilly will host the project using the MediaWiki software package which is maintained by Wikipedia Foundation Inc. and licensed under the GNU General Public License. All content, including the content posted by O’Reilly, will be subject to a public license (most likely a Creative Commons license) which permits virtually unrestricted reuse.

Participants will be required to register. The project will be supported by advertising.

O’Reilly anticipates that an AOC community will develop as the AOC project develops.

O’Reilly plans to publish works in print and other media based on selections of AOC project content, e.g. “Best of AOC.”

Question What kind of legal framework is needed to support the AOC project?

Summary Many nonprofit open source projects, and open content-building projects like Wikipedia, have adapted the traditional “terms of service/privacy policy” legal framework for managing online services by retaining the privacy policy element, replacing the conventional TOS with a set of required online transactional forms for participants, and posting a collection of rules, policies, guidelines, and technical requirements.

Because O’Reilly is not a nonprofit organization, the legal framework needed for the AOC Project should retain a somewhat conventional TOS, which works in coordination with an uploading click-through form, but O’Reilly may also want to consider adopting other practices used by nonprofit projects.

Two key documents for the Project will be a TOS, and an upload form. Preliminary drafts are provided as exhibits to this memorandum, and as separate Word files.

This memorandum also outlines basic legal framework content, with links to examples of Wikipedia Foundation pages.

Discussion 1. Traditional Legal Frameworks

The traditional legal framework for online projects and services consists of a set of terms of service (“TOS”), and a privacy policy, which the user is required to accept as a condition of participation. Users generally are required to indicate their acceptances of the TOS when they register by clicking-through an “I accept” button. Also, users generally have the opportunity to print or download the TOS.

Terms of service often explicitly prohibit fraud, harassment, false user IDs, piracy, and other illicit behavior. They also disclaim and limit liability for defects, disclaim warranties, establish dispute resolution procedures, authorize the site owner to limit or block an erring user’s access and participation, establish remedies for breach, specify communications channels and contacts, and provide that users indemnify the site’s owner against third party claims.

If financial transactions take place, there may also be separate sales terms and conditions that are triggered by participation in the transaction.

If the user is going to upload content, he or she is usually required by a click through upload form to warrant the content and agree to reuse conditions.

Intellectual property ownership, reuse, and related issues are handled through proprietary notices, other legal notices (such as the DMCA ISP safe harbor notice), disclaimers, and (sometimes) public licenses. Many of these matters are included in the TOS.

2. Open Source and Open Content Project Frameworks.

Open source and open content projects typically follow a similar model, but with a different focus. For example, on Wikipedia Foundation sites, a participant who wants to contribute content or edit is required to register, but registration merely entails reading and entering a displayed term to prove that he or she is not a machine, and choosing a password and user name. The first screen that a newly-registered user encounters suggests that the user read the Wikipedia policies and guidelines, which turn out to include a surprisingly large amount of material, but the participant is not required to click through to indicate his or her acceptance.

The user is required nevertheless to conform to numerous policies and guidelines -- arguably many more policies and guidelines than one encounters in conventional terms of service.

In order to upload content, the user is required to complete and click through an upload form that requires the user to supply a significant amount of detail about the content and its sources.

3. Differences

One of the most important differences between open project policies and guidelines, and the generally smaller set of TOS requirements, is that although the policies and guidelines are not the result of democracy (see Wikipedia: Policies and guidelines page), they do result from user/participant/administrator/organizational consensus. In contrast, a TOS is a unilaterally drafted contract.

In terms of designing a legal framework for content-building projects, another important differences between a nonprofit like Wikimedia Foundation and O’Reilly is that the Foundation is much less likely to be a litigation target.

AOC Project Framework – Topics, Transactions and Foundation Models The basic AOC legal framework needs to cover a discrete set of topics and transactions, which are described in this section. The descriptions include links to Wikipedia Foundation project pages, which illustrate how the Foundation handles them.

The topics are organized in the following categories: topics concerning scope, definitions, and roles; topics relevant to contributing participants; topics; and topics relevant to readers and the general public.

The transactions, registration and uploading, and are discussed after the topics.

A. Topics Concerning Project Scope, Definitions, and Roles • Mission/Definition The description of the project calibrates subsequent rules and procedures. Although it intuitively may not seem like part of the “legal” framework, without a clearly expressed context, legal rules are meaningless and hard to enforce.

The mission statement says: “This project aims to [description] that will be useful to [whom] for [what].”

Note that Wikipedia Foundation sites make a point of explaining what a project “is not.” This is a very useful concept.

Wikipedia introduction: http://en.wikipedia.org/wiki/Wikipedia:Introduction

Wikibooks introduction: http://en.wikibooks.org/wiki/Wikibooks:About

Wikipedia is not: http://en.wikipedia.org/wiki/Wikipedia:What_Wikipedia_is_not

Wikibooks is not: http://en.wikibooks.org/wiki/Wikibooks:What_Wikibooks_is_not#What_Wikibooks_is_not

• Invitation to Participate The public is invited to participate in clearly specified ways. Defining roles, tasks, and expectations is as important as defining the scope of the project, in establishing the context for implementing rules and policies.

Wikibooks contributing: http://en.wikibooks.org/wiki/Help:Contributing_FAQ

Contributing to Wikipedia: http://en.wikipedia.org/wiki/Wikipedia:Contributing_to_Wikipedia

Wikibooks community portal: http://en.wikibooks.org/wiki/Wikibooks:Community_Portal#About_Wikibooks

Wikipedia community portal: http://en.wikipedia.org/wiki/Wikipedia:Community_Portal

B. Topics Relevant to Contributing Participants • Desirable Contribution Attributes Users are provided with descriptions and examples of valuable contributions, conveying a feeling for what the project has in mind. The Wikipedia “first article” page is a good example.

First article: http://en.wikipedia.org/wiki/Wikipedia:Your_first_article

• Standards, Requirements, and Guidelines (Input) Specifically telling users what is required potentially increases the likelihood that they will deliver useful content. Chief concerns are technical standards (file formats, etc.), style, the nature of the content (no libel, obscenity, or trade secret violations), and legal (e.g., Wikipedia projects specific rules on permissions and clearing third party rights). While clear rules are beneficial, it is also important to preserve some vagueness, discretion, and subjectivity, so that project leaders have the leeway they need to shape the course of the project. The Wikipedia projects contain a complex hierarchy of rules. Given the large number of rules, policies, and guidelines, the Foundation’s sites devote many pages to organizing, prioritizing, and explaining them.

Explanation of policies and guidelines: http://en.wikipedia.org/wiki/Help:Contents/Policies_and_guidelines

Wikipedia policies: http://en.wikipedia.org/wiki/Wikipedia:List_of_policies

Wikipedia guidelines: http://en.wikipedia.org/wiki/Wikipedia:List_of_guidelines

Wikipedia style manual: http://en.wikipedia.org/wiki/Wikipedia:Manual_of_Style

List of all 107 style pages: http://en.wikipedia.org/wiki/Category:Wikipedia_style_guidelines

• Licensing and Intellectual Property (Input) The project makes clear who owns what, and the rights that they are required to make available to the project and the public. Note that Wikipedia advises participants with specific issues to ask a lawyer (not the Foundation).

Wikicommons licensing: http://commons.wikimedia.org/wiki/Commons:Licensing

Commons licenses: http://commons.wikimedia.org/wiki/Commons:First_steps

Copyright discussion: http://en.wikipedia.org/wiki/Wikipedia:Copyrights

• Collaboration, Communication, and Etiquette How much detail and formality -- if any -- is required depends on the project. Clarity upfront can decrease the likelihood of subsequent disputes.

Wikibooks community portal: http://en.wikibooks.org/wiki/Wikibooks:Community_Portal#About_Wikibooks

Wikipedia community portal: http://en.wikipedia.org/wiki/Wikipedia:Community_Portal

Never assume malice when stupidity will do: http://en.wikipedia.org/wiki/Hanlon%27s_Razor

The classic “Don’t be a Dick”: http://meta.wikimedia.org/wiki/Don%27t_be_a_dick

Don’t be dense: http://meta.wikimedia.org/wiki/Don%27t_be_dense

Staying cool: http://en.wikibooks.org/wiki/Wikibooks:Staying_cool_when_the_editing_gets_hot

No biting newcomers: http://en.wikibooks.org/wiki/Wikibooks:Please_do_not_bite_the_newcomers

• Problem Solving and Dispute Resolution This is related to “Collaboration, Communication, and Etiquette.” The level of detail varies with the project, and clarity is beneficial.

Dispute resolution: http://en.wikipedia.org/wiki/Wikipedia:Dispute_resolution

Deletion: http://en.wikibooks.org/wiki/Wikibooks:Deletion_policy

Protected pages: http://en.wikipedia.org/wiki/Category:Semi-protected


• Consequences of Violating Policies and Guidelines On big projects, governance structures facilitate this. In its most basic form, the project leaders need to make it clear that they can limit or block access by participants, and add, edit, and delete content.

Enforced policies: http://en.wikibooks.org/wiki/Wikibooks:Policies_and_guidelines#Enforced_policies

Probation: http://en.wikipedia.org/wiki/Wikipedia:Probation

Blocking: http://en.wikipedia.org/wiki/Wikipedia:Blocking_policy

Banning: http://en.wikipedia.org/wiki/Wikipedia:Banning_policy

• Consideration for Contributions Essentially, participants need to understand that they aren’t being paid, that there is no guarantee that any particular use will be made of their work, and (perhaps) that there is no “credit” for their contributions or participation. The consideration for their contributions is the opportunity to participate.

Why contribute: http://en.wikibooks.org/wiki/Why_contribute_to_the_open_textbook_project

Why you might not contribute: http://en.wikibooks.org/wiki/Wikibooks:Why_not_to_contribute_to_the_open_textbook_project

C. Additional Topics -- Primarily Relevant to Users (Readers) and the General Public • Disclaimers, DMCA -- ISP Safer Harbor, and Trademark Notices The Foundation pages mostly follow conventional models, but its privacy policy covers some interesting points.

Privacy policy: http://en.wikipedia.org/wiki/Wikipedia:Banning_policy

• Use and Reuse under Applicable Public License This provides basic information about reuse rights, with appropriate links to the license and information provided by the license source (Creative Commons). Users with specific issues should be advised to ask the license source, and/or retain their own counsel.

Rules for readers: http://en.wikibooks.org/wiki/Help:Readers%27_FAQ

D. Transactions

• Registration Registration is a simple process on the Foundation websites:

Wikibooks registration: http://en.wikibooks.org/w/index.php?title=Special:Userlogin&returnto=Wikibooks:Introduction

• Uploading content:

The Foundation pages require that the participant ensure that all the rights necessary to contribute any third party content have been obtained, and require a fair amount of detail as to the source of the content and related matters.

Exhibit 2 is a draft set of AOC uploading provisions.

Wikibooks upload form: http://en.wikibooks.org/wiki/Special:Upload

Wikicommons upload form: http://commons.wikimedia.org/wiki/Special:Upload

Wikicommons upload “first steps”: http://commons.wikimedia.org/wiki/Commons:First_steps

Wikipedia upload form: http://en.wikipedia.org/wiki/Special:Upload

Wikipedia upload “how to”: http://en.wikipedia.org/wiki/Wikipedia:Uploading_images

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