WikiContent:Community Portal

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===Legal Notice===
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===[[Legal Notice]]===
If you do anything that messes with this, we will frag you with a laser gun or flank cannon.
If you do anything that messes with this, we will frag you with a laser gun or flank cannon.
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* Contents
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* Background
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* Question
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* Summary
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* Discussion (Traditional Legal Frameworks, Open Project Frameworks, Differences)
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* AOC Project Framework – Topics, Transactions, and Foundation Models
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* Exhibit 1 -- Draft “Art of Community” Terms of Service based on the SafariU TOS
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* Exhibit 2 -- Draft Uploading Form Boilerplate
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==Background==
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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.
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Participants will be required to register. The project will be supported by advertising.
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O’Reilly anticipates that an AOC community will develop as the AOC project develops.
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O’Reilly plans to publish works in print and other media based on selections of AOC project content, e.g. “Best of AOC.”
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==Question==
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What kind of legal framework is needed to support the AOC project?
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==Summary==
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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.
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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.
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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.
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This memorandum also outlines basic legal framework content, with links to examples of Wikipedia Foundation pages.
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==Discussion==
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# Traditional Legal Frameworks
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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.
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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.
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If financial transactions take place, there may also be separate sales terms and conditions that are triggered by participation in the transaction.
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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.
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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.
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# Open Source and Open Content Project Frameworks.
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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.
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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.
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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.
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# Differences
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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.
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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.
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AOC Project Framework – Topics, Transactions and Foundation Models
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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.
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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.
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The transactions, registration and uploading, and are discussed after the topics.
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A. Topics Concerning Project Scope, Definitions, and Roles
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• Mission/Definition
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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
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context, legal rules are meaningless and hard to enforce.
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The mission statement says: “This project aims to [description] that will be useful to [whom] for [what].”
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Note that Wikipedia Foundation sites make a point of explaining what a project “is not.” This is a very useful concept.
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Wikipedia introduction:
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http://en.wikipedia.org/wiki/Wikipedia:Introduction
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Wikibooks introduction:
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http://en.wikibooks.org/wiki/Wikibooks:About
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Wikipedia is not:
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http://en.wikipedia.org/wiki/Wikipedia:What_Wikipedia_is_not
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Wikibooks is not:
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http://en.wikibooks.org/wiki/Wikibooks:What_Wikibooks_is_not#What_Wikibooks_is_not
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• Invitation to Participate
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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.
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Wikibooks contributing:
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http://en.wikibooks.org/wiki/Help:Contributing_FAQ
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Contributing to Wikipedia:
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http://en.wikipedia.org/wiki/Wikipedia:Contributing_to_Wikipedia
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Wikibooks community portal:
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http://en.wikibooks.org/wiki/Wikibooks:Community_Portal#About_Wikibooks
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Wikipedia community portal:
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http://en.wikipedia.org/wiki/Wikipedia:Community_Portal
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B. Topics Relevant to Contributing Participants
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• Desirable Contribution Attributes
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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.
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First article:
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http://en.wikipedia.org/wiki/Wikipedia:Your_first_article
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• Standards, Requirements, and Guidelines (Input)
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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.
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Explanation of policies and guidelines:
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http://en.wikipedia.org/wiki/Help:Contents/Policies_and_guidelines
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Wikipedia policies:
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http://en.wikipedia.org/wiki/Wikipedia:List_of_policies
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Wikipedia guidelines:
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http://en.wikipedia.org/wiki/Wikipedia:List_of_guidelines
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Wikipedia style manual:
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http://en.wikipedia.org/wiki/Wikipedia:Manual_of_Style
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List of all 107 style pages:
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http://en.wikipedia.org/wiki/Category:Wikipedia_style_guidelines
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• Licensing and Intellectual Property (Input)
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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).
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Wikicommons licensing:
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http://commons.wikimedia.org/wiki/Commons:Licensing
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Commons licenses:
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http://commons.wikimedia.org/wiki/Commons:First_steps
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Copyright discussion:
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http://en.wikipedia.org/wiki/Wikipedia:Copyrights
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• Collaboration, Communication, and Etiquette
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How much detail and formality -- if any -- is required depends on the project. Clarity upfront can decrease the likelihood of subsequent disputes.
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Wikibooks community portal:
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http://en.wikibooks.org/wiki/Wikibooks:Community_Portal#About_Wikibooks
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Wikipedia community portal:
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http://en.wikipedia.org/wiki/Wikipedia:Community_Portal
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Never assume malice when stupidity will do:
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http://en.wikipedia.org/wiki/Hanlon%27s_Razor
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The classic “Don’t be a Dick”:
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http://meta.wikimedia.org/wiki/Don%27t_be_a_dick
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Don’t be dense:
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http://meta.wikimedia.org/wiki/Don%27t_be_dense
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Staying cool:
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http://en.wikibooks.org/wiki/Wikibooks:Staying_cool_when_the_editing_gets_hot
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No biting newcomers:
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http://en.wikibooks.org/wiki/Wikibooks:Please_do_not_bite_the_newcomers
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• Problem Solving and Dispute Resolution
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This is related to “Collaboration, Communication, and Etiquette.” The level of detail varies with the project, and clarity is beneficial.
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Dispute resolution:
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http://en.wikipedia.org/wiki/Wikipedia:Dispute_resolution
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Deletion:
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http://en.wikibooks.org/wiki/Wikibooks:Deletion_policy
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Protected pages:
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http://en.wikipedia.org/wiki/Category:Semi-protected
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http://en.wikipedia.org/wiki/Wikipedia:Protected_page
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• Consequences of Violating Policies and Guidelines
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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.
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Enforced policies:
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http://en.wikibooks.org/wiki/Wikibooks:Policies_and_guidelines#Enforced_policies
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Probation:
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http://en.wikipedia.org/wiki/Wikipedia:Probation
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Blocking:
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http://en.wikipedia.org/wiki/Wikipedia:Blocking_policy
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Banning:
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http://en.wikipedia.org/wiki/Wikipedia:Banning_policy
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• Consideration for Contributions
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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.
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Why contribute:
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http://en.wikibooks.org/wiki/Why_contribute_to_the_open_textbook_project
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Why you might not contribute:
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http://en.wikibooks.org/wiki/Wikibooks:Why_not_to_contribute_to_the_open_textbook_project
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C. Additional Topics -- Primarily Relevant to Users (Readers) and the General Public
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• Disclaimers, DMCA -- ISP Safer Harbor, and Trademark Notices
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The Foundation pages mostly follow conventional models, but its privacy policy covers some interesting points.
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Privacy policy:
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http://en.wikipedia.org/wiki/Wikipedia:Banning_policy
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• Use and Reuse under Applicable Public License
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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.
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Rules for readers:
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http://en.wikibooks.org/wiki/Help:Readers%27_FAQ
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D. Transactions
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• Registration
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Registration is a simple process on the Foundation websites:
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Wikibooks registration:
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http://en.wikibooks.org/w/index.php?title=Special:Userlogin&returnto=Wikibooks:Introduction
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• Uploading content:
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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.
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Exhibit 2 is a draft set of AOC uploading provisions.
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Wikibooks upload form:
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http://en.wikibooks.org/wiki/Special:Upload
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Wikicommons upload form:
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http://commons.wikimedia.org/wiki/Special:Upload
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Wikicommons upload “first steps”:
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http://commons.wikimedia.org/wiki/Commons:First_steps
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Wikipedia upload form:
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http://en.wikipedia.org/wiki/Special:Upload
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Wikipedia upload “how to”:
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http://en.wikipedia.org/wiki/Wikipedia:Uploading_images
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Exhibit 1
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Draft “Art of Community” Terms of Service
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Based on the SafariU TOS
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These terms of service (“TOS”) govern your participation in our Art of Community Project (the “Project”), and by participating in the Project you agree to comply with this TOS:
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1. YOUR BASIC RESPONSIBILITIES
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1.1 You are responsible for maintaining the security of your password and providing accurate registration data. If you provide inaccurate data, or if we have reasonable grounds to believe that to be the case, we may suspend or terminate your participation in the Project.
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1.2 You agree that you will comply with the Project guidelines and policies, and that you will not use the Project to: (a) transmit spam, bulk, or unsolicited communications; (b) forge headers or otherwise manipulate identifiers (including URLs) in order to disguise the origin of any content transmitted through the Project; (c) misrepresent your identity, or affiliation, with any person or entity; (d) disrupt the normal flow of dialogue or otherwise act in a manner that negatively affects other users' ability to participate in the Project; (e) engage in activities that would violate any fiduciary relationship, any applicable local, state, national or international law; or (f) collect or store personal data about other users unless specifically authorized to do so by such users.
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2. CONTENT AND SUBMISSIONS
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2.1 All of your contributions and submissions must comply with the Project policies and guidelines. In particular, you agree and acknowledge that you will be required to make any contribution or submission available to the Project and the public under the _______ Creative Commons license, or the applicable license, if the Project has subsequently adopted a different license when you make a particular contribution or submission, that license will be applicable to your submission (the “Open License”). The Open License may contain certain limitations on liability and warranty disclaimers. However, as between you and O'Reilly, you assume all risk and consequences resulting from any third party's use of any submission or contribution made by you.
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2.2 We reserve the right to monitor, restrict access to, edit or remove any content that is available via the Project.
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3. ADVERTISEMENTS, PROMOTIONS, AND LINKS
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3.1 We may display advertisements and promotions from third parties on the Project websites. Your dealings with, or participation in promotions of, advertisers found on or through the Website, are solely between you and the advertiser. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or participation.
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3.2 You acknowledge and agree that the Website may provide (as a convenience) links or other references to external resources, and that we are not responsible for the availability of such resources. We do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such resources.
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4. TRADEMARKS AND INTELLECTUAL PROPERTY RIGHTS AND CONTENT USE
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4.1 "Trademarks" means all names, marks, logos, designs, slogans and other designations we use in connection with our activities, publications, products and services. You agree not to incorporate any Trademarks into your trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations. You may not remove or alter any Trademarks, or co-brand your own services or material with any of the Trademarks.
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4.2 We are committed to respecting others' intellectual property rights, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement on our Website, please contact our copyright agent as described in our copyright agent page [link].
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4.3 You agree to assume all risk in downloading any content, and all risk from your use of it. You must take precautions (e.g., virus scans, etc.) to ensure that any content you download is free of viruses, worms or other potentially destructive elements. O'Reilly provides no assurances that the content is or will be free of viruses, problems, or errors, nor assurances that any such issues will be resolved.
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5. INDEMNITY
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You agree to indemnify and hold O'Reilly and its officers, directors, affiliates, subsidiaries, partners, agents, licensors, licensees, suppliers, employees and representatives harmless from any claim, or demand, and any resulting material costs, losses, and/or damages, including reasonable attorneys' fees, related to or arising out of your material violation of this TOS.
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6. NOTICES; MODIFICATION AND TERMINATION OF SERVICES; AMENDMENT OF TERMS
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We reserve the right at any time to modify, suspend or terminate the Project (or any part of it), and/or your participation, with or without notice. We will not be liable to you or any third-party for any modification, suspension, or termination of the Project, or loss of related information or content. We may amend this TOS at any time by posting the amended terms on the Project website, and your continued use of the website will constitute consent to the modified TOS.
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7. DISCLAIMER OF WARRANTIES
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7.1 YOUR PARTICIPATION IN THE PROJECT IS AT YOUR SOLE RISK UNLESS OTHERWISE EXPLICITLY STATED IN THIS TOS. THE PROJECT, INCLUDING ALL INFORMATION, SERVICES AND CONTENT IS PROVIDED ON AN "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS. WE DISCLAIM ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. WE MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE USEFULNESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE WEBSITE.
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7.2 WE MAKE NO WARRANTY, GUARANTEE, OR REPRESENTATION THAT: (a) THE PROJECT AND ANY PROJECT SERVICES AND WEBSITES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) THE PROJECT CONTENTS AND WEBSITES WILL BE ACCURATE OR RELIABLE; (c) THE QUALITY OF ANY CONTENT, INFORMATION, OR OTHER MATERIAL OBTAINED FROM THE WEBSITE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; OR (d) ANY ERRORS IN THE CONTENT OR ANY WEBSITE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL OBTAINED BY YOU FROM US, WHETHER OBTAINED THROUGH THE PROJECT OR OTHERWISE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED IN THIS TOS.
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7.3 YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR PARTICIPATION IN THE PROJECT, OR USE OF, OR OBTAINING ANY CONTENT FROM, THE PROJECT OR ANY WEBSITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.
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8. LIMITATION OF LIABILITY
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8.1 TO THE FULL EXTENT PERMITTED BY LAW, WE DISCLAIM AND SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA OR ECONOMIC ADVANTAGE ARISING OUT OF OR IN CONNECTION WITH THE PROJECT OR ANY WEBSITE, EVEN IF WE HAVE PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY MAY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION DAMAGES DUE TO: (a) THE USE OF OR THE INABILITY TO USE ANY PROJECT WEBSITE; (b) STATEMENTS OR CONDUCT OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, FALSE OR FRAUDULENT TRANSACTIONS, OR UNAUTHORIZED ACCESS TO OR USE OF REGISTRATION DATA; OR (c) CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, MODIFY OR DISTRIBUTE.
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8.2 TO THE EXTENT THAT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
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9. PRIVACY POLICY
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You consent to the collection, processing and storage by us of your personal information in accordance with the terms of O'Reilly's Privacy Policy [link]. You agree to comply with all applicable laws and regulations, and the terms of O'Reilly's Privacy Policy, with respect to any access, use and/or submission by you of any personal information in connection with the Project.
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10. GENERAL PROVISIONS
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10.1 This TOS constitutes the entire agreement between you and us relating to its subject matter, and cancels and supersedes any prior versions of this TOS. No modification to this TOS will be binding, unless in writing and signed, or posted by our authorized representative. You also may be subject to additional terms and conditions that may apply when you use our products or services.
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10.2 This TOS will be interpreted and enforced in accordance with California law applicable to contracts made and performed in California by California residents. Any action to enforce this agreement must be brought in the U.S. District Court in San Francisco, California, or in the Superior Court for the County of San Francisco, California, and you agree to the jurisdiction and venue of these courts. Rights and obligations under this TOS which, by their nature should survive, will remain in full effect after termination or expiration of this TOS, including without limitation Sections 2, 5, 6, 7, 8, and 10.
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10.3 Any express waiver or failure to exercise promptly any right under this TOS will not create a continuing waiver. If any provision of this TOS is held invalid by any court or arbitrator, you agree that such provision will be replaced with a new provision that accomplishes the original purpose, and the other provisions of this TOS will remain in full force and effect. Except as expressly provided, nothing in this TOS shall be construed to give any third party any legal or equitable right, remedy or claim under this TOS.
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Exhibit 2
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Draft Uploading Form Boilerplate
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a. You agree and acknowledge that this submission is being licensed to the Project, and any other users, under the __________ Creative Commons License (the “License”), and that the License is nonexclusive, perpetual, irrevocable and worldwide. O’Reilly Media, Inc. agrees and acknowledges that you retain ownership of all rights in and to your submission, including the copyright, subject to the License.
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b. You are solely and entirely responsible for all content that you upload, and its subsequent use. You warrant that all content uploaded by you: (i) does not include unauthorized disclosure(s) of personal information, trade secrets, or confidential information; (ii) does not violate anyone's rights, including without limitation intellectual property rights; (iii) does not contain software viruses or any other elements designed to interrupt, destroy or limit the functionality of any software, systems, or devices; (iv) does not contain or link to commercial solicitations;(v) is not subject to laws or regulations regarding the export and other dissemination of information or technology; and (vi) is not inaccurate, defamatory, obscene, harassing, or otherwise objectionable in a manner which would support third party legal claims.
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c. You also warrant that you have full power and authority to upload all content that you submit. As between you and us, you assume all risk and consequences resulting from any third party's use of any of your submissions. If your submission is jointly authored, you warrant that you are fully authorized to agree to these Uploading Terms and Conditions on behalf of all of the authors, and that each of them will abide by these Uploading Terms and Conditions.
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d. You understand and acknowledge that you will not receive any payment or other separate consideration for any use or reuse of your submission by us, or anyone else, under the License. You acknowledge that you, not O'Reilly, are liable for all claims arising out of your submissions, or their use, including but not limited to alleged violations of: (i) anyone's legal or intellectual property rights; or (ii) any statute, regulation, or law of any country. You agree to indemnify and hold us and our officers, directors, affiliates, subsidiaries, partners, agents, licensors, licensees, suppliers, employees and representatives, harmless from any costs, losses, and/or damages, including reasonable attorneys' fees, related to any claim or demand (a) made by any third party due to or arising out of any content uploaded by you; and/or (b) your violation of these Uploading Terms and Conditions, or the TOS.
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e. By uploading content to the Project, and/or by clicking the “I Agree” button on this page, you agree to comply with these Uploading Terms and Conditions.

Revision as of 20:17, 18 August 2006

Contents

New Wiki Books

This area is for original content that is written and edited directly in the MediaWiki framework. It is our hope that many interested individuals will contribute and make the resulting product more appealing and complete.

The Art of Community


Revisions

This area is for content that may come from titles that have been published by O'Reilly and are being revised on the MediaWiki. It is our intent to have as many interested inviduals post, edit, contribute and get involved in revising content that, today, may not make commercial sense as a printed book.

  • Jabber


Community Documentation

This area is intended to be for individuals who are interested in writing documentation for open source and other types of software products.


Legal Notice

If you do anything that messes with this, we will frag you with a laser gun or flank cannon.


  • Contents
  • Background
  • Question
  • Summary
  • Discussion (Traditional Legal Frameworks, Open Project Frameworks, Differences)
  • AOC Project Framework – Topics, Transactions, and Foundation Models
  • Exhibit 1 -- Draft “Art of Community” Terms of Service based on the SafariU TOS
  • Exhibit 2 -- Draft Uploading Form Boilerplate


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.

  1. 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.

  1. 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

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


• 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


Exhibit 1 Draft “Art of Community” Terms of Service Based on the SafariU TOS

These terms of service (“TOS”) govern your participation in our Art of Community Project (the “Project”), and by participating in the Project you agree to comply with this TOS:


1. YOUR BASIC RESPONSIBILITIES

1.1 You are responsible for maintaining the security of your password and providing accurate registration data. If you provide inaccurate data, or if we have reasonable grounds to believe that to be the case, we may suspend or terminate your participation in the Project.

1.2 You agree that you will comply with the Project guidelines and policies, and that you will not use the Project to: (a) transmit spam, bulk, or unsolicited communications; (b) forge headers or otherwise manipulate identifiers (including URLs) in order to disguise the origin of any content transmitted through the Project; (c) misrepresent your identity, or affiliation, with any person or entity; (d) disrupt the normal flow of dialogue or otherwise act in a manner that negatively affects other users' ability to participate in the Project; (e) engage in activities that would violate any fiduciary relationship, any applicable local, state, national or international law; or (f) collect or store personal data about other users unless specifically authorized to do so by such users.


2. CONTENT AND SUBMISSIONS

2.1 All of your contributions and submissions must comply with the Project policies and guidelines. In particular, you agree and acknowledge that you will be required to make any contribution or submission available to the Project and the public under the _______ Creative Commons license, or the applicable license, if the Project has subsequently adopted a different license when you make a particular contribution or submission, that license will be applicable to your submission (the “Open License”). The Open License may contain certain limitations on liability and warranty disclaimers. However, as between you and O'Reilly, you assume all risk and consequences resulting from any third party's use of any submission or contribution made by you.

2.2 We reserve the right to monitor, restrict access to, edit or remove any content that is available via the Project.


3. ADVERTISEMENTS, PROMOTIONS, AND LINKS

3.1 We may display advertisements and promotions from third parties on the Project websites. Your dealings with, or participation in promotions of, advertisers found on or through the Website, are solely between you and the advertiser. We are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or participation.

3.2 You acknowledge and agree that the Website may provide (as a convenience) links or other references to external resources, and that we are not responsible for the availability of such resources. We do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such resources.


4. TRADEMARKS AND INTELLECTUAL PROPERTY RIGHTS AND CONTENT USE

4.1 "Trademarks" means all names, marks, logos, designs, slogans and other designations we use in connection with our activities, publications, products and services. You agree not to incorporate any Trademarks into your trademarks, service marks, company names, Internet addresses, domain names, or any other similar designations. You may not remove or alter any Trademarks, or co-brand your own services or material with any of the Trademarks.

4.2 We are committed to respecting others' intellectual property rights, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement on our Website, please contact our copyright agent as described in our copyright agent page [link].

4.3 You agree to assume all risk in downloading any content, and all risk from your use of it. You must take precautions (e.g., virus scans, etc.) to ensure that any content you download is free of viruses, worms or other potentially destructive elements. O'Reilly provides no assurances that the content is or will be free of viruses, problems, or errors, nor assurances that any such issues will be resolved.


5. INDEMNITY

You agree to indemnify and hold O'Reilly and its officers, directors, affiliates, subsidiaries, partners, agents, licensors, licensees, suppliers, employees and representatives harmless from any claim, or demand, and any resulting material costs, losses, and/or damages, including reasonable attorneys' fees, related to or arising out of your material violation of this TOS.


6. NOTICES; MODIFICATION AND TERMINATION OF SERVICES; AMENDMENT OF TERMS

We reserve the right at any time to modify, suspend or terminate the Project (or any part of it), and/or your participation, with or without notice. We will not be liable to you or any third-party for any modification, suspension, or termination of the Project, or loss of related information or content. We may amend this TOS at any time by posting the amended terms on the Project website, and your continued use of the website will constitute consent to the modified TOS.


7. DISCLAIMER OF WARRANTIES

7.1 YOUR PARTICIPATION IN THE PROJECT IS AT YOUR SOLE RISK UNLESS OTHERWISE EXPLICITLY STATED IN THIS TOS. THE PROJECT, INCLUDING ALL INFORMATION, SERVICES AND CONTENT IS PROVIDED ON AN "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS. WE DISCLAIM ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. WE MAKE NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES AS TO THE USEFULNESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE WEBSITE.

7.2 WE MAKE NO WARRANTY, GUARANTEE, OR REPRESENTATION THAT: (a) THE PROJECT AND ANY PROJECT SERVICES AND WEBSITES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) THE PROJECT CONTENTS AND WEBSITES WILL BE ACCURATE OR RELIABLE; (c) THE QUALITY OF ANY CONTENT, INFORMATION, OR OTHER MATERIAL OBTAINED FROM THE WEBSITE WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; OR (d) ANY ERRORS IN THE CONTENT OR ANY WEBSITE WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER WRITTEN OR ORAL OBTAINED BY YOU FROM US, WHETHER OBTAINED THROUGH THE PROJECT OR OTHERWISE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED IN THIS TOS.

7.3 YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM YOUR PARTICIPATION IN THE PROJECT, OR USE OF, OR OBTAINING ANY CONTENT FROM, THE PROJECT OR ANY WEBSITE, INCLUDING WITHOUT LIMITATION ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.


8. LIMITATION OF LIABILITY

8.1 TO THE FULL EXTENT PERMITTED BY LAW, WE DISCLAIM AND SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA OR ECONOMIC ADVANTAGE ARISING OUT OF OR IN CONNECTION WITH THE PROJECT OR ANY WEBSITE, EVEN IF WE HAVE PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY MAY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION DAMAGES DUE TO: (a) THE USE OF OR THE INABILITY TO USE ANY PROJECT WEBSITE; (b) STATEMENTS OR CONDUCT OF ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION UNAUTHORIZED ACCESS TO OR ALTERATION OF TRANSMISSIONS OR DATA, MALICIOUS OR CRIMINAL BEHAVIOR, FALSE OR FRAUDULENT TRANSACTIONS, OR UNAUTHORIZED ACCESS TO OR USE OF REGISTRATION DATA; OR (c) CONTENT OR INFORMATION YOU MAY DOWNLOAD, USE, MODIFY OR DISTRIBUTE.

8.2 TO THE EXTENT THAT ANY JURISDICTION DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, PORTIONS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.


9. PRIVACY POLICY

You consent to the collection, processing and storage by us of your personal information in accordance with the terms of O'Reilly's Privacy Policy [link]. You agree to comply with all applicable laws and regulations, and the terms of O'Reilly's Privacy Policy, with respect to any access, use and/or submission by you of any personal information in connection with the Project.


10. GENERAL PROVISIONS

10.1 This TOS constitutes the entire agreement between you and us relating to its subject matter, and cancels and supersedes any prior versions of this TOS. No modification to this TOS will be binding, unless in writing and signed, or posted by our authorized representative. You also may be subject to additional terms and conditions that may apply when you use our products or services.

10.2 This TOS will be interpreted and enforced in accordance with California law applicable to contracts made and performed in California by California residents. Any action to enforce this agreement must be brought in the U.S. District Court in San Francisco, California, or in the Superior Court for the County of San Francisco, California, and you agree to the jurisdiction and venue of these courts. Rights and obligations under this TOS which, by their nature should survive, will remain in full effect after termination or expiration of this TOS, including without limitation Sections 2, 5, 6, 7, 8, and 10.

10.3 Any express waiver or failure to exercise promptly any right under this TOS will not create a continuing waiver. If any provision of this TOS is held invalid by any court or arbitrator, you agree that such provision will be replaced with a new provision that accomplishes the original purpose, and the other provisions of this TOS will remain in full force and effect. Except as expressly provided, nothing in this TOS shall be construed to give any third party any legal or equitable right, remedy or claim under this TOS. Exhibit 2

Draft Uploading Form Boilerplate

a. You agree and acknowledge that this submission is being licensed to the Project, and any other users, under the __________ Creative Commons License (the “License”), and that the License is nonexclusive, perpetual, irrevocable and worldwide. O’Reilly Media, Inc. agrees and acknowledges that you retain ownership of all rights in and to your submission, including the copyright, subject to the License.

b. You are solely and entirely responsible for all content that you upload, and its subsequent use. You warrant that all content uploaded by you: (i) does not include unauthorized disclosure(s) of personal information, trade secrets, or confidential information; (ii) does not violate anyone's rights, including without limitation intellectual property rights; (iii) does not contain software viruses or any other elements designed to interrupt, destroy or limit the functionality of any software, systems, or devices; (iv) does not contain or link to commercial solicitations;(v) is not subject to laws or regulations regarding the export and other dissemination of information or technology; and (vi) is not inaccurate, defamatory, obscene, harassing, or otherwise objectionable in a manner which would support third party legal claims.

c. You also warrant that you have full power and authority to upload all content that you submit. As between you and us, you assume all risk and consequences resulting from any third party's use of any of your submissions. If your submission is jointly authored, you warrant that you are fully authorized to agree to these Uploading Terms and Conditions on behalf of all of the authors, and that each of them will abide by these Uploading Terms and Conditions.

d. You understand and acknowledge that you will not receive any payment or other separate consideration for any use or reuse of your submission by us, or anyone else, under the License. You acknowledge that you, not O'Reilly, are liable for all claims arising out of your submissions, or their use, including but not limited to alleged violations of: (i) anyone's legal or intellectual property rights; or (ii) any statute, regulation, or law of any country. You agree to indemnify and hold us and our officers, directors, affiliates, subsidiaries, partners, agents, licensors, licensees, suppliers, employees and representatives, harmless from any costs, losses, and/or damages, including reasonable attorneys' fees, related to any claim or demand (a) made by any third party due to or arising out of any content uploaded by you; and/or (b) your violation of these Uploading Terms and Conditions, or the TOS.

e. By uploading content to the Project, and/or by clicking the “I Agree” button on this page, you agree to comply with these Uploading Terms and Conditions.

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