Discussion (Traditional Legal Frameworks, Open Project Frameworks, Differences)
What kind of legal framework is needed for an open content project that is not sponsored by a nonprofit organization? How would it compare with the legal frameworks used by nonprofits for their projects?
For project sponsors who are not nonprofit organizations, the legal framework should probably include a somewhat conventional TOS, and an uploading click-through form. However, they should also explore the tools and techniques that the nonprofit open source and open content projects have developed, and consider how similar approaches may benefit their own projects—keeping in mind that in doing so, they are obligated to comply with the applicable public licenses and other obligations that are imposed by the nonprofit organizations.
The examples link to pages from Wikipedia Foundation sites, which is one of the most impressive and successful open content projects.
1. Traditional Legal Frameworks
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.
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 difference between a nonprofit organization and a private or corporate sponsor is that a nonprofit is less likely to be a litigation target, and is usually operating in less complex risk and financial environments.
Specific Project Framework – Topics, Transactions and Foundation Models
The basic 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
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 is not:
-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.
-Contributing to Wikipedia:
-Wikibooks community portal:
-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.
- 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:
-Wikipedia style manual:
=List of all 107 style pages:
- 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. The participants are required to make any contributed content available under an open public license (“Open License”), such as a Creative Commons license. Note the Foundation advises participants with specific issues to ask a lawyer (not the Foundation).
- 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:
-Wikipedia community portal:
-Never assume malice when stupidity will do:
-The classic “Don’t be a Dick”:
-Don’t be dense:
-No biting 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.
- 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 that there is no specific “credit” for their contributions or participation, apart from the “history” annotations in the project pages and any attribution requirements in the Open License. The consideration for their contributions is the opportunity to participate.
-Why you might not contribute:
C. Additional Topics -- Primarily Relevant to Users (Readers) and the General Public
- Disclaimers, DMCA -- ISP Safer Harbor, and Trademark Notices
- 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 Open License source (such as Creative Commons). Users with specific issues should be advised to ask the license source, and/or retain their own counsel.
-Rules for readers:
Registration is a simple process on the Foundation websites:
- 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.
-Wikibooks upload form:
-Wikicommons upload form:
-Wikicommons upload “first steps”:
-Wikipedia upload form:
-Wikipedia upload “how to”: