Talk:Terms of use/Archives/2011-10

Some comments

Resolved.

Hi, thanks for posting. Some comments:

• Whoa, that was loooong! Would be great if we can shorten it a bit. It is waaaaay longer than the current version.

Yep, I'm getting lots of feedback along those lines. Although it may be difficult to believe, this version is shorter than most user agreements. That said, I will need to figure out how to shorten. How much? I'm not sure yet. Geoffbrigham 21:02, 20 September 2011 (UTC)

• Section 4: "(...) will refrain from (...) Linking to material that violates any provision of this Agreement or any applicable law or regulation;" - this is default behaviour of anyone requesting admin actions or a block. Doesn't seem reasonable in these wordings.

I'm open to different wording here, but the devil is in the details. My concern is that certain kinds of linking arguably create liability for the user. For example, knowingly linking to infringing material or child pornography may raise liability considerations. We could be more to the point and simply ban "Linking to material that violates applicable law," but I'm not sure that satisfies your considerations. I'm open to any proposals here. Geoffbrigham 21:02, 20 September 2011 (UTC)

Geoff, I think something more than rewording is needed here. I think the most compelling case would be the English Wikipedia copyright noticeboard, where ever day, multiple reports are made of suspected copyright violations. When making such a report, any Wikipedian reporting a problem is expected to supply evidence of a violation of Wikipedia policy; and the best way to supply evidence is to link to the alleged violation (on Wikipedia, elsewhere, or both). As written, however, I believe the new Terms of Use would prohibit hundreds of edits per month which are not merely good edits, but are vital to the process of self-policing that makes Wikipedia work. (I also believe it is important to take into consideration editorial linking of copyright violations. I think this clause stands in stark contrast to the Be Bold mantra. We encourage users to make edits even if they don't fully understand copyright law and how it applies to writing an encyclopedia. It's always been the case that the Wikipedia community, not the Foundation, assumes the role of addressing run-of-the-mill copyright violations. It seems this change would amount to declaring that hundreds or thousands of our users every day are out of compliance with our basic terms of use.) -Pete F 18:36, 21 September 2011 (UTC) Done according to me, assuming the changes discussed below (see #linking is not a crime) are implemented. -Pete F 21:13, 22 September 2011 (UTC)

I think that the laws use much better and extensive definitions for this kind of linking than we ever can hope to provide. I would prefer to leave it out of the TOU, and leave it to the Law to handle - but maybe that is too much of a European approach. If you insist this should and must be part of the TOU, then I could perhaps live with something along the lines of "linking in an illegal manner" (probably natives have more poetic wordings for that) - but again, imho that is re-doing the work that has already been done by law. Effeietsanders 07:23, 22 September 2011 (UTC)

• Same section: "...Soliciting personal information from anyone under the age of 18 (...)" - isn't this a bit too broad defined? How do you know someone is under 18 if you're not allowed to ask personal information? :)

Point well taken. We are trying to address improper communications with minors. Maybe we could say: "Soliciting personal information from anyone known to be under the age of 18 for an improper purpose ...." It does leave discretion in enforcement, but at least there needs to be a showing of improper purpose. Will be interested in others' view on that. (Response by Geoff)

Wouldn't it be much easier to just make it general and address improper communication? I'm not so sure we want to support improper communication with women (or men) or basically anyone. Asking for personal information is not really the thing though - that is only one of many ways to get to that point. Effeietsanders 07:23, 22 September 2011 (UTC)

I narrowed this provision to any "illegal purpose." Protection of minors on our site is important, so I want to be clear about this as a fair notice to new users who read the agreement. I understand Effeietsanders' point, which is quite logical, but I think other provisions, such as the ban on harrassment addresses the point somewhat. Geoffbrigham 18:11, 4 October 2011 (UTC)

• What I am missing in section 4 is something like "accessing the edit interface when the community has banned you from doing so" (block evasion).

We could include this to be explicitly clear, but I tend to think it is covered sufficiently in Section 10. Geoffbrigham 21:49, 20 September 2011 (UTC)

• 7a states Wikinews as example - I believe the language edition should be specified there.

Good point. Overall in the draft document, I think we rely too much on English language examples. If others could suggest non-English examples, that would also be useful. Geoffbrigham 21:49, 20 September 2011 (UTC)

• I do the way things are worded - generally non-legalese and positive. However, I still hope we can get rid of several clauses.

Effeietsanders 21:32, 8 September 2011 (UTC)

• P.S.: I do think, re-reading, that most of these clauses are stating the obvious and already arranged by law (harrassment, child pornography, viruses etc) - why is it necessary to make it explicit? Isn't it so that those who will bother because it is written, wouldn't do it anyway, and those who dont care... well, don't care? Effeietsanders 21:42, 8 September 2011 (UTC)

Geoff will answer, I'm sure, but in the meantime... this gives us additional legal coverage if we need it. If not, it's very easy to say - for instance, if we're in court because someone is mad that we banned them - "but you never told me the standards!" This gives us a very clear time at which we will have told them the standards. It's unarguable. Philippe (WMF) 21:54, 8 September 2011 (UTC)

That is one of the reasons. Also people actually do modify their conduct once given clear notice of what is allowed and what is not. It goes somewhat to the concept of fair notice. Geoffbrigham 21:49, 20 September 2011 (UTC)

I guess that depends :) Personally I am no fan of trying to lock everything down that is a minor legal risk (someone suing us because of being banned? If that is really the problem, we should simply tell them that the community has full liberty for that - much simpler), so unless it is a major issue, I would be in favor of leaving it out. Besides that much of it seems to be covered by the laws anyways. Also, but IANAL, I have some doubts if the applicable law will fly in all countries, especially since there is no real signing of the ToU. I think that in the Netherlands for example, that usually makes them rather useless. Effeietsanders 22:35, 8 September 2011 (UTC)

As a general rule, user agreements do not need to be signed to be enforceable. I feel that, in most cases where we need it, the user agreement would be enforceable. Geoffbrigham 21:49, 20 September 2011 (UTC)

If you bar a lot of things in the ToS that you plan to ultimately ignore (like admins linking to stuff that violates the ToS, or asking someone about their age because they are running for ArbCom, and subsequently discovering they are under 18, etc.), and doing it purely for legal cover, what happens when in court a plaintiff's attorney lists a thousand times you've declined to enforce the ToS? Nathan ^T 23:58, 8 September 2011 (UTC)

What happens is they point to the section that says declining to enforce the ToS a thousand times doesn't affect their ability to enforce it in this case - "If in any circumstance we do not apply or enforce any provision of this agreement, it is not a waiver of that provision". This is a well-known issue. -- Seth Finkelstein 07:20, 9 September 2011 (UTC)

Actually if someone wants to sue us for blocking them, then I think ToS would not stop them, moreover it should not. Of course we don't want to see the foundation sued, as supporters of the projects, but neither do we want to see it immune from suit, as decent human beings. Moreover the situation of a few years ago where even talking to an external lawyer would have eaten most of the years budget no longer holds. I think the foundation can, and should say "We prefer to resolve disagreements amicably, and we have no wish to go to court with anyone, however we defend the right to due process, even of those we disagree with." Rich Farmbrough 14:51 11 September 2011 (GMT).

I generally agree, and we can say that in the user agreement. Indeed, in practice, we spend lots of time working out issues every day without anything closely approaching litigation. We genuinely want to work out people's issues and concerns as long as we can remain faithful to the principles of the Community. In my opinion, a well written user agreement - which spells out the expectations on both sides - will help reduce disputes and litigation. (We can debate the budget issue, but, in my humble opinion, we are still operating on a relatively low budget given the size of the site. Of course, the Community - which has built the Wikimedia projects through its knowledge, creativity, and innovation - is a primary reason we can operate on a smaller budget as an organization. That said, the legal issues are not necessarily smaller or less plentiful as the site grows.) Geoffbrigham 21:49, 20 September 2011 (UTC)

I agree that the prohibition on soliciting "personal information," whatever that is, from someone under 18 is too broad. Personal information is needed when someone asks for certain roles like steward where we don't want a 17 year old to get the job, and biographical information can be very important when discussing a user's level of knowledge of a subject or copyright license claims. Also, this prohibition assumes that the person who "solicits" whatever that means, "personal information" whatever that means, knows that the person that they're communicating with is under 18. Finally, do you want to prohibit teens from sharing contact information with other teens that they meet on Wikipedia? I suggest removing the under-18 language and replacing it with something more specific that applies to all Wikipedians regardless of age, "requesting personally identifiable information for purposes of harassment, exploitation, or violation of privacy, or any promotional or commercial purpose not explicitly approved by the Wikimedia Foundation." There is a significant difference between "personal information" and "personally identifiable information," and personally identifiable information could be requested for legitimate reasons. Pine 23:47, 9 September 2011 (UTC)

I have additional suggestions. Have a link in the Terms of Use and elsewhere to online safety information that's relevant for teens and everyone else, like "just because X tells you that he's 13 doesn't mean that he is," "just because his photo looks your age doesn't mean that's him", and "don't ever send or accept money from someone on Wikipedia, and report anyone who asks." Send occasional safety reminders, maybe in the Signpost or other places where lots of people will see them. Pine 04:34, 10 September 2011 (UTC)

I like this idea. My only question is whether it should be in the user agreement or in community policies. I would tend to prefer the community policies as the proper venue for this information. Geoffbrigham 21:49, 20 September 2011 (UTC)

It might actually be a good idea to have an entirely separate page on wikimediafoundation.org that's about online safety with links etc. Then this policy or anyone on the projects could refer to it as a resource. What do you think Pine? Thanks for the comments, Steven Walling (WMF) • talk 22:53, 10 September 2011 (UTC)

That sounds good, but I hope there's a way to post regular reminders and updates. Methods for fraud constantly evolve. Also, I need to amend my other comments. You could completely prohibit asking for social security numbers, financial account information including credit card numbers, and passwords of any kind, because there is no circumstance when that information would be needed to evaluate someone's contributions or qualifications. Pine 11:15, 11 September 2011 (UTC)

Do we really want to take responsibility for our user's on-line safety? We have articles on en:wp - for informational purposes only - that cover phishing, 901 scams, hoaxes, malware etc. Rich Farmbrough 14:59 11 September 2011 (GMT).

Encouraging people to stay safe and providing them helpful information is different than taking responsibility for them, and yes Wikimedia should take some responsibility especially by making reasonable efforts to prevent malware from being hosted or linked from Wikimedia and by protecting User privacy and passwords including warning users of any phishing, fraud, or malware targeted at Wikimedia users. Pine 21:01, 13 September 2011 (UTC)

Absolutely agree that we should do all those things - although "linking to malware" is a bit vague, I'm sure we link or linked to many tools pages, probably including the virus toolkit - and I believe we link to Microsoft. Some of that belongs in the Privacy Policy, some of it in operations, some of it in various bits of user documentation. We are pretty good at password management these days - though an encrypted logon through a java applet might be a good facility. The only thing is, none of this belongs in the ToS. Rich Farmbrough 01:36 14 September 2011 (GMT).

See [1] If there are outstanding issues, please let us know. --Mdennis (WMF) 20:22, 4 October 2011 (UTC)

Harassment, threat and abuse

Resolved.

Hi Geoff, I'm wondering about the need to incorporate harassment, threats etc. in the Terms of use. Is this a new area where WMF will be taking a lead, since this area is reserved for community and internal consensus on projects. I am wondering how far it can go and what is the intention? Theo10011 21:35, 8 September 2011 (UTC)

I like this section because it spells out that some types of conduct will get an user banned by the community and in some very rare instances it will be enforced by the WMF by using legal means if necessary. I think that section could make it more obvious that bans and blocks happen primarily by the community by putting it earlier in the section. So, it shows that there most likely will be a progression with the community usually dealing with the issue first, and then the WMF. FloNight 21:44, 8 September 2011 (UTC)

Hey Theo. I'll let Geoff answer as well if he likes, but since I read the draft previously and both Philippe and I are working with legal on these issues I'll take a stab at it: the short answer is that the new provisions do not mean that the Wikimedia Foundation will be starting up a new system for policing the projects when it comes to harassment, threats, or abuse. The provisions exist to legally reinforce the right of the projects and the volunteers that run them to remove users who violate the terms of use and the community policies/guidelines which it says you must follow (see section 11). Steven Walling (WMF) • talk 21:48, 8 September 2011 (UTC)

Thanks Steven, I saw the reply after sending my post to foundation-l. :P sorry about that. Thanks again for the prompt response and explanation, I'll see if Geoff or someone, expands more on the draft of the provision here or elsewhere. Later. Theo10011 01:34, 9 September 2011 (UTC)

Hi Theo. I agree with Steven's response. There may be exceptional cases where, as a legal team, we may wish to explore all alternatives at WMF, but that will be the rare case. When we do it though, it is helpful to have the explicit prohibition in the user agreement. The explicit prohibition does put people on fair notice about what behavior is not acceptable. This will be helpful for not only WMF, but also the Community, in communicating and enforcing what is appropriate behavior.

I dislike this as currently written. Terms of use should be enforced by the service provider. They are undermined by inclusion of undefined subjective items like harassment, threat and abuse among a multitude of prohibited activities in section 4. There are some very important items in this prohibited activities list. Rather than have a bright line when problems rightly become WMF responsibility, this draft document allows the WMF to take action against many misdemeanors. They will do this, inevitably showing favouritism to those closest to the WMF. John Vandenberg 03:52, 10 September 2011 (UTC)

"They will do this, inevitably showing favouritism to those closest to the WMF."? How about some Assume Good Faith, John. Steven Walling (WMF) • talk 05:40, 10 September 2011 (UTC)

Sure, I assume that the WMF wont intentionally show favouritism. :-) And my statement is not a slight on the WMF staff, nor is it even directed at them. I have no qualms saying that people closest to WMF and Jimmy and ArbCom and admins are shown favouritism. It is a feature as much as it is a bug. This is reality. It is human nature. It is also a business reality whenever money is involved. And as the WMF grow, able to push US$50M per annum towards endeavours they consider to be strategic, their capacity to show favouritism increases. The remedy for this is to ensure that as much of wikimedia as possible is publicly visible, audit-able and transparent, and there is a culture of constant review and improvement. That keeps in check these unintended side effects of the strong bonds within our community, and the effect of enourmous amounts of money. Much of the internal workings of the WMF are not publicly audit-able. "w:WP:OFFICE" actions will never be publicly audit-able, so they should be reserved for cases which warrant the cards being played close to the chest, and the terms of use should prohibit activities which are uncontroversially unacceptable. The current laundry list of prohibited activities will mean that people in the community will scream "violation of terms of use" any time they feel harassed, threatened or hurt. It will become another tool to bludgeon each other with. And they will also bludgeon ArbCom and the WMF staff with "you're not enforcing the terms of use". What happens when ArbCom doesn't uphold these terms of use, or ArbCom principles are not as strongly worded as the terms of use; we'll be accused with being weak and supporting the harassers. And these people will turn to the WMF to enforce the terms of use. Good luck. John Vandenberg 06:51, 10 September 2011 (UTC)

I do not want to make admins' jobs harder with the user agreement. They have a tough enough task. But, unless I'm mistaken, admins are already dealing with enforcement of some pretty ambiguous concepts on our site. See, e.g., http://en.wikipedia.org/wiki/Wikipedia:Harassment & http://en.wikipedia.org/wiki/Wikipedia:What_Wikipedia_is_not#Wikipedia_is_not_a_battleground To the extent any of these terms need further specification, the Community is able to do that by policy (as they have done in the past). To some degree, we came up with the first part of this list reviewing existing Community policies, so hopefully it reflects a short version of what the Community already wishes to prohibit. But, of course, I'm open to feedback on this. Geoffbrigham 22:56, 20 September 2011 (UTC)

This section has been considered and reviewed. If there are new issues related to this, please start a new conversation. We don't want updates to be overlooked. --Mdennis (WMF) 20:35, 4 October 2011 (UTC)

Please Keep Your Information Secure

Resolved.

The heading "Please Keep Your Information Secure" would probably make more sense as "Please Keep Your Password Secure". specially as elsewhere in this document you are asking people to release their information via CC-by-SA. Please keep your Personal Information secure might make a little more sense, but would conflict with longstanding policy that encourages editors to share certain personal information such a language proficiencies. WereSpielChequers 00:14, 9 September 2011 (UTC)

I like the proposed change in the heading. Thanks. Geoffbrigham 00:26, 21 September 2011 (UTC)

See [2] If there are outstanding issues, please let us know. --Mdennis (WMF) 11:44, 5 October 2011 (UTC)

Libel

Resolved.

The EN:McLibel Case is an article about a libel case, it explains amongst other things which of a list of libel charges were found to be true or false. A prohibition on the posting of "defamatory, or libelous content" would require that article to be bowdlerised. I suggest instead that the section be reworded so that wikinews and wikipedia can still cover libel cases appropriately. WereSpielChequers 00:14, 9 September 2011 (UTC)

Geoff knows better of course, but I'm pretty certain that (in the U.S. at least) referring to or even quoting from past legal cases is not treated the same as posting original libelous content. I don't see any reason why articles on past libel cases in the courts would need to be redacted in any way. Steven Walling (WMF) • talk 22:55, 10 September 2011 (UTC)

Well actually you only know definitively that something is libellous after the court hearings. So unless the WMF is intending to second guess the courts, this is far better left to the stricter and non-legalistic BLP provisions. (Second guessing the courts is a bad idea, firstly you can be suppressing material that you should not, which leads to problems of bias, with all the "-ism" related issues that that entails, secondly you can allow material which you should suppress, which might very well lead you into a liability situation, where without the clause, as a common carrier, you would have (in the US but not in the UK) no liability.) Rich Farmbrough 20:41 11 September 2011 (GMT).

I think Steven is right. Libel under US laws depends on the whole circumstance, not on bits quoted out of context. Courts themselves commonly quote libelous statements in their public decisions, and then go on to say that this bit is libelous because it's false, misleading, or whatever. WhatamIdoing 01:29, 12 September 2011 (UTC)

OK so we are all happy with current practice such as the EN:McLibel Case. Now how do we reword these terms to reflect that? WereSpielChequers 22:55, 13 September 2011 (UTC)

I don't believe that any re-wording is necessary. "The defendant's statement that _____ was found to be libel" is not a libelous statement, so posting that material would not violate this (proposed) agreement. WhatamIdoing 17:31, 14 September 2011 (UTC)

No, that's a scenario where one can repeat libellous content without libelling someone. If the terms were about not using the site to commit libel then it would be OK to have defamatory or libellous content such as "X was found guilty of libelling Y by accusing them of Z". But these terms are much broader than that, which wouldn't be a problem except that we have people here trying to write encyclopedia articles, publish original source material on Wikisource and even write news reports, potentially on libel trials. WereSpielChequers 19:44, 14 September 2011 (UTC)

I see WereSpielChequers's point. We can reword to prohibit merely libel (as opposed to "libelous content"). Geoffbrigham 17:16, 21 September 2011 (UTC)

Thanks Geoff. WereSpielChequers 11:25, 28 September 2011 (UTC)

See [3] If there are outstanding issues, please let us know. --Mdennis (WMF) 12:34, 5 October 2011 (UTC)

Comments

Resolved.

The first part of this is too wordy. Shorten and simplify. For example, most of "Overview..." is duplicated under "A description..." andf its first sentence can be cut right down: "This Agreement explains our Services, our relationship to you as a User, and your and our rights and responsibilities."

I think it makes sense to have a summary paragraph. If somebody reads nothing but the overview, they have a good idea about how our site works. Geoffbrigham 16:07, 5 October 2011 (UTC)

Most studies find that simple direct statements work better in formal documents. Title the 2nd section just "Privacy policy", not "Please Look at Our Privacy Policy", and section 3 as "Content policies" or "Hosted content", not "About the Content We Host". Likewise section 7 should be "Licencing and re-use", not "How Content Is Licensed".

Section 4 contains a long preamble and 18 bullet points. Too long to read as it stands. Group them in 5 headings with bullets under each as examples:

• Harmful, distressing, and defamatory activity
• Breach of privacy, copyright, trademarks, or other rights
• Disruptive use, and misuse of websites or facilities, for purposes other than intended
• Activities that are illegal or relate to minors
• Soliciting or exploiting personal information

I like this idea. Geoffbrigham 17:16, 21 September 2011 (UTC)

"Termination" is poorly worded ("In the event of termination, your account may be disabled and you may not be granted access to it, or to any files or other content contained in your account. In such a case, your contributions may remain accessible to other Users."). Reword: - If your account is terminated for any reason, you and other users will still have access to your public actions and your contributions, but you will not be able to access your account or its settings once disabled.

Makes sense to me. Geoffbrigham 17:16, 21 September 2011 (UTC)

One thing that's caused occasional headaches from time to time, and would be nice to see addressed: - a provision that third parties who outframe our content on their site, or with adverts or offers, or in books, should state that the original content is available free and without adverts. Is that consistent with CC?

Not sure this is consistent with CC, and I'm hesitant to impose requirements that go beyond the license. Section 7(h) addresses reuse of content, and usually the applicable license needs to be noted. I would suggest that this is sufficient notice as to how content may be used. But I'm open to feedback on this. Geoffbrigham 17:16, 21 September 2011 (UTC)

There's others but those are starters. FT2 ^{(Talk | email)} 01:16, 9 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 17:14, 6 October 2011 (UTC)

Does this apply to off-site activity?

Resolved.

"Using any information obtained from a Project website to harass, abuse, or harm another person."

As a member of Encyclopedia Dramatica and the Wikipedia Review, I'm considered that the implications of this line. I often link to diff's from Wikimedia project to point out mistakes, evidence of abuse, and to document events. For example, I wrote 90% of ED's "Wikipe-tan" article. In this, I include links and quotes, and both of those fit the definition of "information obtained from a Project website." At "Wikipe-tan#Anti-anime_movement", I mock attempts by those wishing to delete enwiki's Wikipe-tan page. Here I include quotes and information I've obtained from Wikipedia. I also wrote an article on the user "Herostratus", yet he didn't complain. In fact, he requested that it be whitelisted.

I enjoy Wikipedia and the other projects the WMF offered. I don't wish for my account to be terminated due to the things I enjoy doing off-site. --Michaeldsuarez 20:02, 9 September 2011 (UTC)

Addendum: Concerning the Wikipedia Review, some people view criticism and scrutiny as harassment. I don't. Wiki are meant to be transparent. You can view page histories and examine who added what and when. Transparency exists to allow scrutiny. In addition, I'm allowed to have an opinion about about others. Everyone has the right to dislike a sysop and express their opinion, yet some users may view these expressions as harassment. --Michaeldsuarez 20:17, 9 September 2011 (UTC)

"Harass" has a very specific legal definition. Legitimate criticism, gentle fun, even mockery to a certain extent can be absolutely okay. I've certainly taken my share of it. When it crosses the line into harassment, well... I don't know how that would be defensible. Philippe (WMF) 21:38, 9 September 2011 (UTC)

Will the WMF make clear that it is using the legal definition there, rather than a more expansive one? Please note that these terms do have a history of being used expansively in some Wikipedia contexts. Inversely, I've seen very little interest in enforcing such policy when the offenders are "insiders" attacking "outsiders". -- Seth Finkelstein 21:55, 9 September 2011 (UTC)

It seems unlikely that they mean to apply a legal definition of "vandalism" so I'm surprised if other words in there are intended to be interpreted that way. 87.254.77.167 22:53, 9 September 2011 (UTC)

The first line of section 4's prohibitions list "harassment, threats, stalking, spamming, or vandalism". The first three terms are thrown around widely and loosely by certain cliques in the Wikimedia community, particularly on en.wp). "Spamming" isn't a legal term at all. "Vandalism" might not be legally applicable in an "everyone can edit" environment. --SB_Johnny ^talk 23:40, 9 September 2011 (UTC)

Even if you ignore the "anyone can edit", the lack of permanence or costly damage seems key to me. Spray painting someone's car (without permission) is vandalism. Writing in the snow that's fallen on their car, or in the mist on the window... I doubt it. If you can click a button to reverse it then I doubt that's vandalism in any legal or commonly understood sense. Not a lawyer though so *shrug*. 87.254.77.167 23:53, 9 September 2011 (UTC)

This also struck me as problematic. In particular, Wikipedia has no way to know whether an off-wiki account is really the same as an on-wiki account. And so far as I know Wikipedia has very few cases in which off-wiki behavior can be counted against someone under policy. So when enforcing this TOS, what standard of evidence applies? What WMF employee says "he probably did it" and bans someone? Is there any recourse? Is there anything to stop him from arbitrarily making charges even if unsupported entirely? Wnt 05:52, 10 September 2011 (UTC)

More to the point, there is no real way to know if two on-site identities are the same, barring co-editing patterns. And it has been the position of many of us that if someone "comes back" as a new account that is editing well, then we need not look too closely (I know others disagree, but to me this follows the "punishment" rather than "prevention" theory of blocks and bans, which we specifically repudiate). Rich Farmbrough 21:00 11 September 2011 (GMT).

I think you're worried about the wrong problems, so let me give you a real-world example of why we ought to have had this from the beginning:

A long-time admin at the English Wikipedia reported a while ago that he had received phone calls at home from someone who was very upset about losing some basic content dispute. In these phone calls, the other editor not only complained about Wikipedia's inconvenient content policies, but also threatened the admin's wife and children by name.

Naturally, this off-wiki harassment warrants a prompt phone call to the police. But do you really want that other editor at Wikipedia ever again? What would you tell the admin and his family? "Yes, we know the guy ended up in jail for threatening you and your family, but he made those threats over the telephone system rather than on wiki, so we're letting him keep editing." Wouldn't a better response be something like, "We're blocking that account, and he can apply for unblocking when he can provide letters of support from two psychiatrists plus a video of Satan ice-skating to work"? WhatamIdoing 01:48, 12 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 16:48, 6 October 2011 (UTC)

Incorrectly capitalized letters

Resolved.

I find this:

How Content Is Licensed

Why not write this in proper English:

How content is licensed

Must even the word "is" have a capital initial letter?

We provide certain Services. Really? Capital initial "S"? Why?

Lawyers often capitalize initial letters that by reasonable standards of usage should be in lower case, but sometimes that's to call attention to them or to impress the reader with the idea that this is important or to create some sort of sense of formality. Overdoing it as much as that is done here is silly.

Guilty as charged. Will make the changes. Geoffbrigham 03:05, 22 September 2011 (UTC)

Once upon a time I was summoned for jury duty, and I was handed an informational booklet that referred to Judges, Attorneys, Court Rooms, Bailiffs, and all sorts of things with capital initials that should be in lower case by standard usage conventions. One of those was this term: Jury Room. But later it said something about a: jury. Really. With a lower-case initial j. Jury Room requires capital letters. But jury doesn't! Could it be that attorneys aren't all that impressed by juries? But want juries to be impressed by Jury Rooms? How much respect should I have for people who write like that, for the effect it might have on yokels?

This is puerile and undignified. Lawyers should learn to spell properly. Michael Hardy 02:16, 10 September 2011 (UTC)

I agree, this is one of the many stylistic oddities that lawyers learn by osmosis from their senior colleagues and legal texts. In traditional law a contract defining "Judge - a person with a silly wig" then going on to use the word "judge" would have been deemed to have been using the word "judge" in it's usual sense, rather than the defined sense. I believe a more common-sense approach is taken these days - in either case rooted in precedent. Nonetheless, where the definitions have not been given, or if they have been given using a sensible case - A "judge" is a... - then their is no need to use Germanic capitalisation.

Furthermore, their is delight in list phrases, which stem partly from the Anglo/Norman legal days where it was often necessary to name things in both languages - "shall not carry forth in any bucket or pail". So here we see "individual or User", a triple or even quadruple solecism in three words, firstly the capital, secondly the redundant list, thirdly the use of the word individual, and fourthly the exclusion of bodies corporate and others, all resolved by the use of the word "person". Rich Farmbrough 14:42 11 September 2011 (GMT).

The document uses en:Title Case for section titles and a few sub-titles like "We Do Not Take an Editorial Role", which is a practice that your English teachers would approve of wholeheartedly. The use of en:Sentence case, which is what the English Wikipedia's Manual of Style prescribes, is a common convention in modern journalism, but it is not the One True Style™.

Within the text, capital letters are conventionally used in legal documents to indicate that the definition or description in the document (which may be implicit or explicit) overrules the dictionary definition. So, for example, the Agreement is this particular agreement, not any old agreement, and the User is the User defined in the third paragraph, not any old user. WhatamIdoing 01:58, 12 September 2011 (UTC)

If I write about the University of Wherever, and later in the document refer to the University, with a capital initial "U", that's because the word is being used as an abbreviated form of the name, "University of Wherever". I think what you're talking about when you mention superseding dictionary definitions is similar, e.g. when it refers to the Project, but I wonder if you can explain how my comments about a Jury Room and a jury fit into that. It would be easier to believe some of your other comments if I didn't see stuff like that. Michael Hardy 19:28, 12 September 2011 (UTC)

An informational booklet is not a legal agreement. What you found in the informational booklet was merely appalling style, presumably written by a person who didn't know any better. What you see here is the convention for a legal agreement. The style has meaning here. WhatamIdoing 23:35, 12 September 2011 (UTC)

Yes, and indeed my point was that the convention has survived, while the legal requirement has, over time faded, as I understand it. Rich Farmbrough 01:14 14 September 2011 (GMT).

You're right: following the conventional style of the legal field is not required by law. But it is also not wrong to do so in a legal agreement. WhatamIdoing 17:37, 14 September 2011 (UTC)

This is not just a legal document, this is a draft for a communication that we would potentially be showing to all current and future volunteer editors. Yes it needs to be something the lawyers can accept, but it also needs to respect our values as a community, and be part of a deal that current and future volunteers are prepared to make. So getting the style right is just as important as getting the law correct. Making sure that this is a deal that people are willing to make is much more important. Sometimes lawyers need to argue every dot and comma to the benefit of their client, and sometimes they need to help their client make something as attractive as they can. WereSpielChequers 22:27, 19 September 2011 (UTC)

So I am humbled by this discussion.  :) I agree that often legal style has meaning. That said, my over-capitalization is properly reproached here. It makes the document harder to read, and it has no legal value. Geoffbrigham 03:05, 22 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 16:26, 6 October 2011 (UTC)

linking is not a crime

Resolved.

One of the prohibited activities is "Linking to material that violates any provision of this Agreement or any applicable law or regulation".

This goes further than the law in most countries, and is not settled in the US. See e.g. w:DMCA#Linking_to_infringing_content.

This would mean linking to wikileaks is a WMF-bannable offense, even if wikileaks content has been covered in international news. (e.g. w:Special:LinkSearch/*.wikileaks.info

This would mean that many editors of w:AACS encryption key controversy would be WMF-bannable. A lot of links on that page are illegal. The page itself even includes the illegal hex string, so anyone linking to the Wikipedia page is WMF-bannable.

The terms of use should not be prohibiting activities where the law is unsettled. These issues need to be tested in courts. The WMF should be standing up and being counted on the side of the freedoms that Wikipedia editors need in order to discuss and writing about these topics, without fear of stupid laws that mean that some URLs are illegal and without worrying that they might be WMF-banned as a result. John Vandenberg 04:14, 10 September 2011 (UTC)

I don't know how I missed that, but that's outrageous. Let's start with the fact that this is a Terms of Service for Wikimedia users. So tell me - how can anything on a third party site violate any provision of this Agreement? Is what they mean is that they're banning links to false and misleading content? So, like, if I link to Fox News I can be banned? (Admittedly, some people might see some justice...) This TOS needs to be round-filed. It will be like most of the TOSes on the Internet, written by a bunch of lawyers, ignored by users, fitfully enforced by managers leading to bad blood and threats of boycotts, until at last Anonymous steps in and enforces the people's justice. Wnt 05:59, 10 September 2011 (UTC)

Another example is w:2010 Senkaku boat collision incident#Links to the leaked video clips, which include links to youtube videos which (according to Wikipedia) the Japanese government consider to be breaches of security and confidentiality. Would linking to youtube be a "violation of .. any applicable law or regulation"? If the Japanese government considers these videos to be illegal, just like the US considers the wikileaks to be illegal, then linking to these youtube videos would become a WMF-bannable prohibited activity. John Vandenberg 06:17, 10 September 2011 (UTC)

On the other hand, I presume that you wouldn't mind having users banned for linking to malware or child porn sites at any WMF project, since standing up for spammers and criminals isn't your idea of standing up for freedom. Can you think of a concise way to communicate the general point that linking can break the law, and doing so can result in a ban? WhatamIdoing 02:06, 12 September 2011 (UTC)

I don't think we need to point out to people that if they break the law they are liable to get a ban - at least in the egregious ways you are implying. We certainly shouldn't be trying to list all the ways that they may break the law by editing or using Wikipedia, firstly because we will omit stuff, creating loopholes, secondly because we will probably be wrong about stuff we include (even if we are lawyers), thirdly because it would be a huge list, and fourthly because en:WP:BEANS. Rich Farmbrough 01:11 14 September 2011 (GMT).

I was coming here to comment on the same line of text, but John Vandenberg and Wnt have already made my point. This line should be altered or removed. Themfromspace 00:54, 16 September 2011 (UTC)

I agree with much of what is said here. I'm open to suggestions on rewording, and here is an idea: "Linking to third party sites when such linking violates applicable law." This rewording makes clear that the "linking" must be illegal (like intentionally encouraging people to follow a link to a child pornography site) without casting a broader net that prohibits any linking to "material that violates any provision of this Agreement or any applicable law or regulation." I think we should not simply delete the reference to linking because I think new users need some guidance and many are not aware of the issue, but I agree that a more narrow formulation is appropriate. Geoffbrigham 18:23, 22 September 2011 (UTC)

Geoff, that seems reasonable to me; as far as I'm concerned, this addresses the same point raised above (in Effeietsanders' comments) and below (in mine); I'll mark those accordingly as "resolved" (provisionally, pending your changes to the text). Thanks! -Pete F 21:08, 22 September 2011 (UTC)

"Many are not aware of the issue" that will only change if we explain the issue. I'm not convinced that the current wording does that, or that terms of use are the best place to do so. I see the terms of use as something that new editors might skim through and a few pedants will argue every clause of. I don't see them as part of the ongoing training of our editors. WereSpielChequers 08:09, 23 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 16:24, 6 October 2011 (UTC)

You may not break the law

Resolved.

What? The government needs "terms of use" to back it up? Rich Farmbrough 13:08 10 September 2011 (GMT).

I submit that it is helpful to set out examples of inappropriate uses of the site to give people fair notice on what is not allowed. To be sure, just telling people not to break the law is unhelpful, but I think the examples in Section 4 are (though we can discuss what examples are appropriate for our Community). It also lets people know about our culture: we are a revolutionary Community that seeks to expand the public domain, for example, but at the same time we do not condone copyright infringement on our site. Making that clear to new users is useful. Geoffbrigham 20:10, 22 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 16:19, 6 October 2011 (UTC)

DMCA

Resolved.

I note that this section provides methods for take-down, and sends people off to "find out" about wrongful take-down, rather than providing methods.

We currently have at least one unchallengeable take-down on en:wp, due to WMF's process, and it would be more useful to actually address this broken process than create expensive lawyer fodder. Rich Farmbrough 13:20 10 September 2011 (GMT).

To my knowledge, there are no take-downs that can't be challenged. I could be wrong, but I just looked at the list today and didn't see any... regardless, the WMF's internal processes now include referring the original poster to methods and resources (which are about as far as we can go) that can help them with a counter-notice. Philippe (WMF) 01:12, 11 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 16:18, 6 October 2011 (UTC)

5. Please Keep Your Information Secure

Resolved.

You are responsible for any actions taken or content contributed under your Username,

• This is plain wrong. If someone hacks my account, forges my sig or a dev makes changes under my name, or there is a software glitch I am not responsible.

Rich Farmbrough 13:30 10 September 2011 (GMT).

If someone hacks your account, that would typically mean you weren't using a very good password (someone could try a brute force attack, but I can't see why they would). You are responsible for your passwords. While anyone can forge a sig on a talk page, you can't forge the username next to the edit in a page history, which is what actually matters. It's true that sysops or software glitches could cause problems, though. Perhaps "You are responsible for any actions taken or content contributed under your Username either by you, with your permission or through negligence on your part." would be better. --Tango 14:31, 10 September 2011 (UTC)

I heard that not long ago there was an admin account that got hacked. Is the admin financially liable for the actions of the hacker? Pine 11:17, 11 September 2011 (UTC)

Yes several people including some admins have had accounts hacked, and in the days of keyloggers and spyware simply having a secure password isn't enough. A 12 digit random password is hard to crack, but if you've had your PC infected with Spyware, just as easy to copy as a 6 digit one. In practice I'd hope we'd ignore these terms and next time a user has their account hacked we'll welcome them back when they are back in control of their account. Last time I was in a public unencrypted wifi I just edited as an IP and IMHO it would be better to encourage people to do that than to threaten to make them responsible for the actions of the hacker who compromised their account. WereSpielChequers 22:46, 13 September 2011 (UTC)

The primary reason for this section is to remind people that they are responsible for safeguarding their passwords. That said, I'm fine with rewording the section to omit discussion about collateral responsibility. Geoffbrigham 20:15, 22 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 16:18, 6 October 2011 (UTC)

Trollish suggestion

Resolved.

The document as currently worded will actually cause a lot more trouble than it is designed to prevent. I strongly recommend consulting Mike Godwin before adopting this.

Seriously, folks... this is a nightmare just waiting to happen. --SB_Johnny ^talk 18:50, 10 September 2011 (UTC)

Mike has already spent quite a few hours talking with Geoff about this and other matters that need to be understood as General Counsel of the Wikimedia Foundation. If he wants to weigh in publicly I hope he does, but he's certainly not been in the dark about the legal department's plans. Steven Walling (WMF) • talk 22:04, 10 September 2011 (UTC)

I assumed SB_Johnny was making a joke in that part. While we're on the topic, though, is there a non-disparagement clause in force? (I don't expect this to be answered, but I've wondered, so I'll ask it). -- Seth Finkelstein 22:14, 10 September 2011 (UTC)

I suspect that no-one posting here would know the answer to that question.  :) Philippe (WMF) 01:12, 11 September 2011 (UTC)

Therein might lie the problem, if you think about it too hard ;-). If this ends up being applied selectively (and "selectively" includes following popularity votes by "the community"), you're going to end up with potential liability issues that are just plain unhelpful.

I somehow get the impression that this is a very complicated and well-intentioned attempt to fix what ain't broke. Etc. --SB_Johnny ^talk 21:59, 19 September 2011 (UTC)

In fairness to the WMF, I can see a very reasonable argument that there's an increasing chance of breakage in the future, so some preventive preemptive action is called for. Sort of reinforcing the barn door lock bolts when the horse has grown from a little foal into an aggressive stallion (making it a gelding being deemed unacceptable by the owners ...). -- Seth Finkelstein 00:00, 20 September 2011 (UTC)

This section has been considered and reviewed. If there are new issues related to this, please start a new conversation. --Mdennis (WMF) 16:15, 6 October 2011 (UTC)

Grammar

Resolved.

Minor nits for someone to fix:

• Section 9: In the title and the first sentence, "third party websites" should be hyphenated.
• Section 10: Stray space before second comma in first sentence should be removed.
• Section 17: In "we will provide at least three (3) days notice", the word days is possessive and should therefore be followed by an apostrophe.

There may be more, but these are the ones that I made a note of. WhatamIdoing 00:39, 12 September 2011 (UTC)

Thanks Geoffbrigham 20:53, 22 September 2011 (UTC)

Do not do this.

Resolved.

Use the old Terms Of Use, please. This Terms Of Use are not well made and the idea behind it isn´t good for a free project like Wikipedia.--89.204.153.212 20:34, 12 September 2011 (UTC)

Medieval armor

Resolved.

Transmitting chain mail is forbidden. Michael Hardy 20:03, 12 September 2011 (UTC)

Yes, it is exactly these kinds of articles that the Terms of Use should be prohibiting. We should take this one down immediately.  :) Geoffbrigham 16:23, 23 September 2011 (UTC)

Users Authors and Editors

Resolved.

This document largely refers to us as users, and at least once as authors. Editors and Readers are both longer, and presumably would require an opening sentence that defined those terms. But this is one place where that sort of courtesy would be more appropriate than usual. WereSpielChequers 00:14, 9 September 2011 (UTC)

Good to think about, for sure. Steven Walling (WMF) • talk 22:56, 10 September 2011 (UTC)

The terms of use for Users, Editors, Projects and Reusers (who want to reuse our stuff elsewhere) are quite different and the terms of use should be clearly divided into different sections (or pages) aimed at each of these.

Users or Readers get the right to download and save stuff to read later for instance - a right not available on other sites.

Authors and Editors have certain duties to the projects and certain more general duties to the foundation.

The projects themselves are separate from and clients of the Foundation and have certain duties to the foundation. I think a section of the Terms of Use directed at the projects would be useful - spelling out that the projects have a lot of leeway to manage themselves but are subject to certain restrictions, in accordance with their agreements with WMF (Wikipedias are neutral, all projects use free licenses, all projects allow contributions from the public)

The TOU for reusers are more general and basicly point to the license terms and the fact that the Foundation doesn't own the copyrights.--Filceolaire 11:41, 11 September 2011 (UTC)

I think "Users" is a good idea, since it covers everyone, and other options don't. For example, a person who uploads a photograph to Commons would probably not describe himself as an "Editor". I imagine that a reader who rates an article with the Article Feedback Tool or who leaves one comment on a talk page would not think of himself as an "Editor" either. But all of these people see themselves as "Users". WhatamIdoing 01:15, 12 September 2011 (UTC)

But the terms of use are not the same for all users. Terms of use for readers are different from those for authors and editors. I did think of using "Contributors" as a term for authors and editors but I thought that could be confused with donors - people who give money. The Terms of Use for monetary Donors will be very short -

What benefits do I get if I donate money to Wikipedia?

• The satisfaction of knowing you are helping to achieve our Vision
• er...
• That's it.

—The preceding unsigned comment was added by Filceolaire (talk • contribs) .

And within the US, some donors will receive tax benefits, and possibly some advertising value, if they publish a list of donors.

On your other point, the terms are the same for all users. The only difference is that only certain terms are applicable for certain situations. This is the same as any other website. For example, CNN.com says that "By submitting User Content to CNN.com, you automatically grant CNN and its parent company, Cable News Network, Inc., the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, publish, reproduce, modify, adapt, edit, translate...". Those are the terms for everyone, but since I've never submitted any user content, that particular paragraph doesn't apply to me. WhatamIdoing 23:33, 12 September 2011 (UTC)

Anyone who fixes a typo, categorises an article or uploads a photograph is one of our volunteer contributors, by convention we call them editors, I think contributors might be more accurate - but our terms should use the jargon that we use in the community. Telling a fellow wikimedian that their contributions are such that we are downgrading them from "editor" to "user" is a bad move. WereSpielChequers 23:05, 13 September 2011 (UTC)

I disagree that calling me a "user" rather than an "editor" is a downgrade. But then, I don't buy into the notion that "editors" are better than "readers", either, and I know that some "editors" do believe themselves to be much, much more important than readers. WhatamIdoing 17:07, 14 September 2011 (UTC)

This is an interesting discussion. I have received feedback to date that we should simplify the agreement even more, which suggests to me that we should use a generic term like "user" and not create separate sections for different types of users. Indeed, one can be a reader one minute, an editor the second, and a Wikimedia Commons contributor the next. Some guidelines will apply to each of those three roles, and some will be specific to only one. I fear that charting all that will make the document too complicated and hard to understand. Obviously I don't want to offend anybody by the term "user." It seems neutral to me, but maybe I have that wrong. To the extent it helps, we can make clear in a sentence that the term "user" includes readers, editors, etc. Geoffbrigham 00:26, 21 September 2011 (UTC)

User would be fine if you were referring to both readers and editors, but as soon as you start talking about people who are posting information on our sites you are setting rules that only apply to editors. I doubt if many would actually be offended, its more a question of whether we want this document to read like it belonged on the site or was just a bolt on externally commissioned bit of legalese. My preference is very much to make this read as part of the site. Something that goodfaith editors would read and see as backing up our policies for dealing with badfaith editors. WereSpielChequers 11:22, 28 September 2011 (UTC)

The term that is most common on the English Wikipedia is not the term that is most common on 100% of projects. Here at Meta, for example, we don't really have "editors", because there's not really any content to edit. MediaZilla has zero editors. Commons uses contributors and editors (and means slightly different things by these terms). Wikibooks uses author, contributor, editor, and user interchangeably. If we choose what seems "natural" on the English Wikipedia, we will be choosing what seems quite strange on other projects. This document has to work for 100% of projects, not just for the Wikipedias. WhatamIdoing 16:08, 28 September 2011 (UTC)

I assume that since every page has "edit" at the top, anyone who clicks on that could be described as an editor. :) Ottava Rima (talk) 16:16, 28 September 2011 (UTC)

┌─────────────────────────────────┘
I propose that we use the term "user," but define it better. In the introduction to the user agreement, I have included this sentence: We welcome you (“you” or the “User”) to use our Services and join the Wikimedia Community as a reader, editor, author, or contributor, but before you do, we ask that you please read and agree to the following Terms of Use (the “Agreement”). Geoffbrigham 02:38, 5 October 2011 (UTC)

Why are we asking readers to read the TOU before reading? Our content is under Free Culture licenses which mean readers get every right under copyright law plus some extra rights. Why would they need to read the TOU?

Our TOU for editors and authors and anyone who contributes content are different and vary from project to project. The TOU for reusers and republishers are different again and also vary from project to project. Why are these being lumped together? Maybe it would be better to start with TOU for editors and authors of English Wikipedia and extend this to other sites later.--Filceolaire 07:09, 5 October 2011 (UTC)

User agreements usually apply to all its users. This user agreement has numerous provisions that are applicable to readers. See, e.g., 3(a), 3(b), 4 (e.g., engaging in malware attacks), 5, 6, 8, 14, 15. I prefer a single agreement, especially one which is not as extensive as most user agreements. Frankly, I believe people would find multiple agreements as too confusing. Geoffbrigham 15:34, 5 October 2011 (UTC)

Very small edit

Resolved.

Copyedit, please Presently, this reads:

... “we” or ”us”

But should read:

...“we” or “us”

Or barring that, use straight quotes instead (""). Koavf 05:01, 5 October 2011 (UTC)

Done. :) Thanks much for finding that! --Mdennis (WMF) 11:51, 5 October 2011 (UTC)

Disrupting the Services ...

Resolved.

Hello, This really needs clarification. It could easily be misinterpreted. Yann 06:35, 9 September 2011 (UTC)

I'd suggest taking it out. If a bot runs too fast it is easy enough to deflag it. While deliberate denial of service attacks can be treated like any other form of vandalism. WereSpielChequers 08:01, 9 September 2011 (UTC)

Just recently WMF operations had to deal with a suspicious IP making lots of database queries, which turned out to be a bot running on an Amazon EC2 node. I believe it ended up killing a db temporarily. The community can't just deflag an account if there's no account there, and the truth is most Internet bots are not the kind that get registered and make edits. So it's important that we state that we have the right to revoke your access if you break the site. :) Steven Walling (WMF) • talk 18:02, 9 September 2011 (UTC)

It's important that we act in such circumstances, but do we need yet another hostile sounding line in the terms? If we took this line out is there any risk that in a future such incident anyone would argue that they did have the right to break our site in this particular way? We don't have lines in there preventing people from using a digger to dig a most round our offices and cut all power lines.... WereSpielChequers 18:51, 9 September 2011 (UTC)

I think Geoff honestly has a better answer based on legal precedent, but of those two examples you gave, bots running wild etc. is something that has happened repeatedly in the past, affects other major websites, and is thus assessed as a real legal risk if we do not explicitly say what is allowed and what isn't. The latter example you gave is totally hypothetical and thus doesn't present enough of a legal risk to include in the document (of course). Steven Walling (WMF) • talk 19:33, 9 September 2011 (UTC)

Yet somehow without this TOS in place you still managed to deal with that bot. How is that? Wnt 21:03, 10 September 2011 (UTC)

That's a bit of a red herring, isn't it? Sure, with a spitball I can sometimes stop an invading army. But I can do it better with a cannon or a sniper rifle. Philippe (WMF) 05:12, 11 September 2011 (UTC)

Yeah, but if you're being attacked by misbehaving children, I'd rather you stuck with spitballs. Wnt 16:02, 11 September 2011 (UTC)

There's three scenarios here:

1. Some kind of error - someone not understanding the impact of their actions (or in the old days when we get "slashdotted").
2. Some naive attack - skript kidz if you will, or a special interest group with limited skillz.
3. Some more sophisticated attack.

In the first scenario we simply need to resolve the issue, no need to take legal steps.

In the second situation we will probably not even notice the attack (there was one such attempt, by a significant sepcial interest group, that was picked up by chance - I forget the details, but it didn't even blip server response). If we do, then we have the full arsenal of defence measures at our disposal.

In the third scenario, we have the law, the majority of ISPs and the FBI on our side, together with more technical expertise than you can shake a stick at. In this context, we are not going to be worried about telling Mr Big that he will not be allowed to edit from Fulsome.

Rich Farmbrough 20:52 11 September 2011 (GMT).

I see the point. What if we put an intent element in the equation, rewriting the clause to read as follows: "Disrupting the Services by placing an undue burden on a Project website or the networks or servers connected with a Project website with no serious intent to use the website, networks, or servers for their stated purpose."? Geoffbrigham 17:16, 21 September 2011 (UTC)

Because even if the disruption is purely accidental and with the best intention in the world, we still both need and want to stop the disruption. "Disrupting the services" is Never Okay. That it's never okay and always prohibited doesn't mean that we have to be hateful to people who accidentally do this, but even accidental disruption with the best, most seriously appropriate intentions is unacceptable. We are never going to tell our users, "Ooops, it looks like the English Wikipedia is offline for the rest of the day, but that's okay: the person who is accidentally preventing your ability to access it was trying to do something positive for the readers."

Rich, this is not a list of "we will sue you into oblivion if you...". This is a list of "don't do these things—and we may block you (just like we blocked Amazon a while ago) if you do these things." WhatamIdoing 16:37, 22 September 2011 (UTC)

That's the nub of the disagreements here. To me and I suspect many others there is no need to pad the TOU out with things where we wouldn't involve lawyers. Regardless of what the TOU say and whether disruption is deliberate or accidental, we will block editors, bots and IPs when we need to. What would be useful to have in the TOU is something that lets the Foundation go after the three or four persistent troublemakers who tie up a huge amount of our volunteers time. But that doesn't just mean TOU changes, it may not even need TOU changes. But it does require commitment and budget from the Foundation that before people get to the point where we are rangeblocking hundreds of thousands of IPs, the Foundation will take legal action to defend the wiki. WereSpielChequers 10:14, 24 September 2011 (UTC)

Given the above discussion, I will leave the clause as it is. The purpose of the clause is to inform users and to have an easy point of reference when someone starts burdening the system. In rare cases, we may initiate judicial action where a reference in the user agreement could be useful. See 18 U.S.C. 1030 Geoffbrigham 02:14, 6 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 16:49, 6 October 2011 (UTC)

Does this duplicate or supersede policy?

Resolved.

This is a typical-looking terms of use for a business run in the standard dictatorial model, actually lenient in a few details like lewd and indecent material. But that covers up the point that Wikipedia already has a community that has addressed virtually all of these issues, and could address any of them, which is why it lasted so long with a very atypical TOS, which was always a heartening aspect of the project. There are already reams of policy, admins, ArbCom, all kinds of things to throw off users. So why are so many categories of behavior named here, which can be dealt with there? Is it your intent eventually to make the community policy-making process entirely irrelevant? Will administration likewise be done by some WMF employees throwing people out for violating TOS rather than by admins? If you've survived to become the 5th-largest website without this TOS, doesn't that prove you don't need it ever? Wnt 19:34, 9 September 2011 (UTC)

The relevant quotes here are:

[Section 10] Typically, isolated violations of Project policy and other similar issues will be dealt with by the Wikimedia Community , and will not require our intervention.

[Section 10] ...please be aware that authorized members of the Wikimedia Community may also take action according to the policies of individual Projects, including but not limited to investigating, blocking, and/or banning Users who violate those policies.

[Section 11] You also agree to abide by mandatory policies and guidelines that are developed on an individual Wikimedia Project level, and which can be found at the particular Project websites.

To answer the questions: "Is it your intent eventually to make the community policy-making process entirely irrelevant? Will administration likewise be done by some WMF employees throwing people out for violating TOS rather than by admins?" the answer is no. I think from the feedback here it's desirable that with Geoff's approval we should make the language about the precedence of existing community policy and governance stronger and/or more prominent in the relevant sections, because the purpose of adding such clauses is that by putting them in an official Terms of Use, it gives the right of the community to deal with problem users legal backing that didn't exist before. What we're not going to do is become Facebook and hire a team of moderators or similar kind of staff people to enforce the terms. The point of the new terms is to support the movement exactly how it functions now, not alter its roles and responsibilities. Steven Walling (WMF) • talk 19:51, 9 September 2011 (UTC)

Why would it need legal backing? Do the policies with legal backing in the TOS have more importance or strength than those not mentioned in the TOS? And if an administrative action has legal backing, doesn't that mean that accusing someone of a policy violation is a legal threat? Wnt 05:49, 10 September 2011 (UTC)

It doesn't. Someone does something bad, they are not allowed to edit - problem solved (pragmatically - we know there are massive difficulties in the implementation, but the egregious cases covered by a ToS are not difficult to deal with). Linking to community policies - including "Ignore all rules" is setting up an unnecessary legal minefield. This is yet another layer of process, and it is beginning to feel like the tail wagging the dog. Rich Farmbrough 13:16 10 September 2011 (GMT).

Although I am community liaison, I'm offering my own opinion here. I'm not speaking for the WMF. It needs legal backing because there are rare, severe cases that cannot be addressed without legal options. Since I undertook my contract as community liaison in May, I have been contacted by multiple administrators on English Wikipedia frustrated by their inability to actually do anything about long-term egregious vandals, some of whom take their harassment well beyond inserting bad words into articles. This is a huge step forward to assist the communities with problems like that, when all else fails, although I don't want to mislead anybody into thinking I'm trying to suggest that this will be common. Given all factors (not least cost), I'm sure it won't be. In terms of legal threats, not every project has a policy against legal threats, of course, but those that do seem capable of drafting language to avoid going to extremes. For example, EN:WP:NLT recognizes that "A polite, coherent complaint in cases of copyright infringement or attacks is not a "legal threat"." I imagine that if there is any confusion language can be drafted in similar manner to clarify that pointing out policy violation is not a legal threat. Again, my opinion. --Mdennis (WMF) 14:40, 12 September 2011 (UTC)

I agree with Steven's suggestion that we should craft language that makes clear the dominant (and superior) role of the Community here. Good suggestion, especially given the strength of the feedback. Geoffbrigham 17:16, 21 September 2011 (UTC)

I hope that the list of prohibitions are consistent with Community policy to date. If we have a prohibition that is contrary to our Community values, we should delete it. That said, I do see a benefit in putting a short, easy-to-understand list in the user agreement. Among other things, it ensures that new editors have fair notice (as discussed above). Hopefully, at least that is the intent, the Community's job is facilitated when there are clear rules in place that everyone has agreed to. There are legal advantages as well. For example, for some legal statutes on computer misuse, a user agreement can play a role in defining the scope of authorization in using the site. See, e.g., 18 U.S.C. 1030(4), (5). Geoffbrigham 17:16, 21 September 2011 (UTC)

Maggie, I don't understand your point about "legal options": I hope the WMF is not going to sue (very bad) vandals "to assist the communities"; it's not a viable option and it would be unfair to most communities, because it would necessarily be a USA and English projects only assistance. In case of harassment and so on, the WMF should only do what needed to let others enforce the (local) law, so that all users are treated fairly. Nemo 21:41, 30 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. (Nemo, I've read your question, but I'm afraid that I'm not at liberty to discuss in detail. Sorry. :/ I will simply have to note that lawsuits are not the extent of legal options, and legal options are by no means limited to the USA and English projects.) --Mdennis (WMF) 16:46, 6 October 2011 (UTC)

Miscellaneous comments

Resolved.

• "we do not contribute, monitor, or delete content (with the rare exception of legal compliance for DMCA notices, etc.)." Doesn't the Foundation contribute some content in the form of information on Wikimania events?
• "You May Find Some Material Objectionable" - how does this tie in with the proposed image filter?
• "Infringing copyrights, trademarks, patents, or other proprietary rights;" add "except where permitted by fair use or other exceptions."
• "Attempting to impersonate another User or individual, misrepresenting your affiliation with any individual or entity, or using the Username of another User;" add "or any conduct commonly known as sockpuppeting (such as using multiple accounts to mislead, deceive, or disrupt; or creating the illusion of greater support for a position; or circumventing a block or topic ban); or meatpuppeting (such as asking your friends to create accounts to support you)."

I understand the concept and may try to include similar, but maybe shorter, language in the next draft. Geoffbrigham 03:05, 22 September 2011 (UTC)

• "Accessing, tampering with, or using any of our non-public areas in our computer systems, including shared areas that you have not been invited to;" how are users supposed to know what areas they should not have been invited to?

I see your point. I think it depends on the circumstances, but, to prevent ambiguity, maybe we should delete that last clause. Geoffbrigham 03:05, 22 September 2011 (UTC)

Pine 00:26, 10 September 2011 (UTC)

Thanks for the all-around constructive notes. To reply to the first two briefly... No, the WMF does not contribute to the content in any official capacity. Second, the image filter as proposed currently would let people filter images for themselves, but since it wouldn't do any filtering until you tell it to, there is still certainly the ability to find content you may think is objectionable. Plus, content includes text of course, and there are no plans to filter that for anyone. Steven Walling (WMF) • talk 22:27, 10 September 2011 (UTC)

OK thanks. Also, I've edited my suggested wording on sockpuppeting. Pine 11:29, 11 September 2011 (UTC)

Pine, good suggestions. I ended up taking the one you made about WMF contributions of content (like this user agreement). That said, such contributions are rare, so I don't want to overemphasize it. My edit on this topic is in the "Overview" section. I see your point on sock-puppeting, but I think this should be regulated in detail by the policies of the individual Projects. I hope the impersonation language is enough to support such policies. Geoffbrigham 03:02, 6 October 2011 (UTC)

On some of those points...

• "we do not contribute, monitor, or delete content (with the rare exception of legal compliance for DMCA notices, etc.)." This is rather vague, firstly it does not define "content" - the example ToS we are discussing is content on Meta. Secondly using the word "rare" - once a day? once a year? Thirdly the word "we" - does this refer to Foundation employees acting aas employees, does it include OTRS responders? Rich Farmbrough 14:29 11 September 2011 (GMT).

On the "content" issue, I suggest we insert the word "generally" - "we generally do not contribute ...." That makes clear that sometimes (and rarely) WMF posts materials - like this proposed user agreement. Can't really put a meaning on "rare": I sought to capture that, compared to the number of actions by the Community, WMF acts quite infrequently (as I believe should be the case). "We" refers to the Wikimedia Foundation (as defined in the first sentence of the agreement); it would not include OTRS responders. Geoffbrigham 03:05, 22 September 2011 (UTC)

• "misrepresenting your affiliation with any individual or entity" does this mean "Sarek of Vulcan" and "Elen of Roads" need to change usernames? Rich Farmbrough 14:29 11 September 2011 (GMT).

:) I sure hope not. We don't want people impersonating others for improper purposes; nor should people adopt user names that are affiliated with known entities (in part because of trademark considerations). I'm comfortable that this language will not be misused, but, of course, open to any other proposed language.

• "Accessing, tampering with, or using any of our non-public areas in our computer systems, including shared areas that you have not been invited to;" There is I believe a Computer Misuse Act (if that's the UK title, there is an equivalent US statute) that covers this ground much better. The way this is worded anyone accessing test-wiki (for example) could be in trouble. (Well, they probably wouldn't since a court would say the phraseology was over-broad.) And even someone incorrectly writing to an Arbcom or clerking page would find themselves on the wrong end of this clause. Rich Farmbrough 14:29 11 September 2011 (GMT).

I see the point. I suggest we keep the general concept but maybe narrow the language. Open to suggestions. Geoffbrigham 03:05, 22 September 2011 (UTC)

Pine's proposal to qualify the prohibition on infringing copyrights, etc. is unnecessary. If the use is fair use or otherwise subject to an exception, then it is by definition not an infringement. WhatamIdoing 01:51, 12 September 2011 (UTC)

Just to let this one point not undisputed:

>>Attempting to impersonate another User or individual, misrepresenting your affiliation with any individual or entity, or using the Username of another User<<

are issues of relationships between human beings, and not at all necessarily abusive. Behaviour of this kind may happen accidentally, or as a joke among friends, or in situations of despair. E.g. in my opinion it is not abusive if you pretend on a wiki to belong to a religious faith if in reality you don't belong to it, or vice versa. All this situations of telling who you are and how you are related to otheres can be regultated by the local wikis, and can be managed on the local wikis. The same applys to sockpuppets or meatpuppets. If a wiki wants to ban, or regulate or allow puppets, they may do how they want, greetings --Rosenkohl 22:04, 18 September 2011 (UTC)

Rosenkohl, I've included the phrase "with intent to deceive" to address true cases of fraudulent misrepresentation. I declined to follow others' suggestions that we include more details about sock-puppeting. I agree this is left best to community enforcement. Geoffbrigham 15:27, 6 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 16:27, 6 October 2011 (UTC)

"your country"

Resolved.

... should be "country where you live" or some such. Seb az86556 21:40, 10 September 2011 (UTC)

What about an British person living in Jordan and working in Israel? In the last twenty years or so, governments other than the US have started to go with extraterritoriality, retroactive legislation, double jeopardy and so forth. Again we are trying to take responsibility for editors here. What happens when someone gets arrested visiting China for having posted the flag of Tibet on Wikipedia? Is the WMF then civilly liable in Florida for the distress and loss, for saying that they only need consider US (and Florida) law and their own countries'? Rich Farmbrough 21:08 11 September 2011 (GMT).

This is presently what we say in one disclaimer:

Jurisdiction and legality of content

Publication of information found in Wikipedia may be in violation of the laws of the country or jurisdiction from where you are viewing this information. The Wikipedia database is stored on a server in the State of Florida in the United States of America, and is maintained in reference to the protections afforded under local and federal law. Laws in your country or jurisdiction may not protect or allow the same kinds of speech or distribution. Wikipedia does not encourage the violation of any laws; and cannot be responsible for any violations of such laws, should you link to this domain or use, reproduce, or republish the information contained herein.

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

I'm not as concerned about the liability issue as I am about providing fair notice. We could arguably reword the language in the proposed terms to talk more broadly about non-US law. Geoffbrigham 20:52, 22 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 11:42, 7 October 2011 (UTC)

Sprachen

Resolved.

Angesichts der Tatsache, dass die Nutzungsbedingungen nur in einer englischen Fassung vorliegen und anderssprachige Versionen nicht vorgesehen sind, gehe ich davon aus, dass diese Nutzungsbedingungen nur für die englischen Nutzer bestimmt sind. Liesel 17:41, 12 September 2011 (UTC)

translation: Users who don´t understand english can not work as editors.--89.204.153.212 17:48, 12 September 2011 (UTC)

Google translate: Given the fact that the terms, conditions present in only one English version and other language versions are not intended, I assume that these terms are intended only for English users. (by Philippe (WMF) 19:41, 12 September 2011 (UTC))

Google Translate is useful if used intelligently, but anyone who trusts Google Translate is an idiot. Michael Hardy 19:52, 12 September 2011 (UTC)

OK, in this case, the translation actually looks reasonable. Usually with fairly long sentences, Google Translate mangles things in absurd ways. Michael Hardy 19:54, 12 September 2011 (UTC)

"Given the facts, that the terms of use are only provided in English language and other language versions are not intended, I have to assume that this terms of use are only directed at English speaking users." Rough translation by hand.

In fact: Who would agree to usage terms that he can't even understand? --Niabot 20:06, 12 September 2011 (UTC)

90% of the people who have ever bought a home? Most of the people who apply for credit cards? A good deal of the people who have a contract with a cell phone carrier?

Just like the existing foundation:Terms of use have been translated into German (see foundation:Nutzungsbedingungen), the new terms of use will be translated, too. WhatamIdoing 23:40, 12 September 2011 (UTC)

Yeah, great answer. The sales contract for my house is in German language, as well as the contract for my credit card and for my mobile phone. The reason simply is that German is my mother tongue and that I live in Germany. WMF wants every editor all over the world to accept Terms of use that they probably could misunderstand or simply do not understand. That's the point. No one except of (nearly) native english speakers can be part of a discussion regarding to the content of this draft. This is really no example of what I think a confidence-building measure should be. Siechfred 07:29, 13 September 2011 (UTC)

Ich möchte hier auch meinen Unmut kundtun. Juristische Fragen zu diskutieren ist schwer genug. Juristische Fragen in einer Fremdsprache zu diskutieren ist für den Laien fast unmöglich, dafür ist Sprache viel zu vieldeutig. Und ich wundere mich schon sehr über die "Diskussionskultur" der Foundation. Meiner Meinung nach sollten angemessene Übersetzungen vorliegen bevor so eine Diskussion angestoßen wird. Das nächste Mal bitte anders. Vielen Dank. --Kellerkind 08:32, 13 September 2011 (UTC) P.S. You don't understand this? Your problem!

I agree that it would have been nice if the page had been translated in time for discussion, but if it is adopted, it will be translated before anyone is required to agree to it.

P.S. Natürlich verstehe ich Sie. WhatamIdoing 17:10, 13 September 2011 (UTC)

Really, if You don't translate this now, You will have serious problems with the German community as You are having now with the picture filter.

The regular order should be:

1. translate proposal in as many as possible languages
2. discuss proposal in every available language
3. write summary of discussion in english
4. translate summary of discussion into every discussed language
5. ponder if a final secure poll is necessary
6. decide if no poll is necessary

--79.226.62.194 11:18, 16 September 2011 (UTC)

A German translation ist now under Terms of use/de, --Rosenkohl 15:18, 17 September 2011 (UTC)

Like our present terms of use, the new version is intended to be applicable to all sites. It is great to see the German translation, and I would encourage others. Geoffbrigham 21:23, 22 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 22:57, 7 October 2011 (UTC)

Soliciting personal information

Resolved.

The following is to be forbidden:

Soliciting personal information from anyone under the age of 18

So let's say at http://en.wikipedia.org/wiki/Wikipedia:Reference_desk/Humanities an 8th-grader says "I'm trying to decide whether I want to major in political science or in French literature." In the ensuing discussion someone asks him "Do you prefer geography to civics?". Is that question forbidden? If so, what are the legal consequences after it's happened? Could it be that this is here for the purpose of making things easier for lawyers after certain abuses happen and they don't care that it covers too much? After all, if there are plenty of violators, there will be plenty of people that they have grounds to do something to if they decide they don't like them (for reasons that will differ from the publicly stated ones). Michael Hardy 19:48, 12 September 2011 (UTC)

The passage refers only to Personally identifiable information. Steven Walling (WMF) • talk 19:51, 12 September 2011 (UTC)

How would that be clear from the way the prohibition is phrased? Is it not at best a phrase that admits other interpretations than that? Michael Hardy 20:11, 12 September 2011 (UTC)

Michael please the discussion in the section "Some comments" where I suggested alternatives. I agree this statement as written is awfully vague. Pine 00:03, 13 September 2011 (UTC)

I agree that we should modify this language to reflect its application to only solicitation for improper purposes. Finding the right language will be the challenge, but I'm encouraged by some of the recommendations. Geoffbrigham 16:21, 23 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 22:56, 7 October 2011 (UTC)

7. How Content Is Licensed

Resolved.

If one was to interwiki import a text with the hyperlink as a means of attribution and this imported text got worked on further, potential re-users of that second text would have to provide two links, to both of these pages. This is because on the second article's history, the original authors would not get credited in a manner equivalent to the original page history (author names versus page link). Imo this should get addressed in sections (d) and (h).--141.84.69.20 20:30, 12 September 2011 (UTC)

Section 7 in the new user agreement is simply a rewrite (and not a significant one) of the original terms of use, which focuses on these licensing issues. Believe it or not, we actually tried to simplify the language and make the section easier to read for users. (I think there is still quite a bit of work to do in that area.) There is no intent however to change the substance, since continuity is important. (We may need to eventually make some changes in light of the changing Creative Commons licenses, however, but that is not the issue here.) I think I understand the problem that you have identified, but would you be able to propose some language that I could play with? That would be quite helpful. I note that, as we do in the present terms of use, we say in Section 7(c): "the attribution requirements are sometimes too instrusive for particular circumstances (regardless of the license) and there may be instances where the Wikimedia Community decides that imported text cannot be used for that reason." Geoffbrigham 16:36, 23 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 22:49, 7 October 2011 (UTC)

Ban these Terms of use

Resolved.

I believe that we will prevent the realisation of these terms of use by the German courts, inclusive the bullshit of DMCA and so on. And also it is my considered opinion that it will become necessary, preconceiving the bold attempt to censorship our project by launching image filtering, to fork the European wikipedias from the christian fundamentalism and other rubbish in the US. -- Sozi 07:47, 13 September 2011 (UTC)

This anti-american rant is pretty clueless. Freedom of speech is estimated much more in the US (en:First Amendment to the United States Constitution) than it is in Germany, see for example en:Laws_against_Holocaust_denial or the debates around de:Soldaten sind Mörder or de:Lebach-Urteil. A germany-based Wikipedia would hardly be possible, considering how often the german chapter had to take down its redirect wikipedia.de in the past because of some preliminary injunction. --Tinz 14:41, 13 September 2011 (UTC)

This doesn't make this proposal any better and who had spoken about placing the server inside Germany? At least it should be clear that i will not accept terms of use in English language. --Niabot 15:11, 13 September 2011 (UTC)

I feel confident that we will be able to set up the infrastructure to fork from this project, the only problem is to decide it and to stay in this decision. -- Sozi 16:52, 13 September 2011 (UTC)

It is strange to hear someone praise the alleged "free speech" rights in a country where it is actually illegal to make factual statements like "Wolfgang Werlé and Manfred Lauber murdered en:Walter Sedlmayr", despite those two men having been convicted of murder and sent to prison for it. Germany permits speech only if the government believes your speech is suitable for society, and it has decided that saying someone is a convicted murderer is unhelpful to the social goal of helping ex-cons get jobs and make friends. WhatamIdoing 17:17, 13 September 2011 (UTC)

Dear Mr. Tinz. U know exactly as I am that its impossible to win a trial within one (1) year in the States...there is nothing about German vs. American Law. Those terms are prohibiting each and every mourning about anything. If I would agree to that, I would agree to a totalitarian system...--Angel54 5 17:24, 13 September 2011 (UTC)

It's clear that censors have often been foiled by the ability of people to shift content from one country to the other over the internet, so it is equally clear that Wikimedia should remain multinational. Wherever people can maintain it, they should maintain their freedom to provide all the information that is known. But this current controversy is not between the U.S. and Germany, nor even really about freedom of speech, but between the old noble Wikipedia that became one of the leading sites in the world, and some proposed pusillanimous Wikipedia that reserves the right to turn on its users and control content from the top down. Wnt 18:11, 13 September 2011 (UTC)

Thats what I meant - thank u for ur very clear words. I agree: control content from the top down....--Angel54 5 18:17, 13 September 2011 (UTC)

"You think you have freedom of speech? You can't handle freedom of speech!"

Having said that most of the restrictions on FoS don't impact (currently) our projects in a major way, with the obvious exceptions of IPRs and China.

The reason we should not have these terms of use are far more fundamental. We don't need them. Occam's razor applies here in spades. Regardless of the amount of money and time we spend on stuff like this, it is all pretty much going to be either redundant or of dubious enforceability (or both). Additionally it makes us look like a meat-headed corporation run by lawyers and accountants - whose actions are predicated on fear, rather than vision. As things stand contributors are liable for their actions, WMF is liable for it's actions and that's how it should be. And futzing with terms and conditions, is likely to muddy this bright line distinction. In the event, however, that we for some reason decide we absolutely must have something like this, it would be worth checking if it will make the WMF's projects illegal in the EU under new laws designed to protect the individual from the corporate web sites legal trickery. Rich Farmbrough 01:00 14 September 2011 (GMT).

The location of the servers or the headquarter of the Foundation is irrelevant. According to the "principle of national protection" (see de:Schutzlandprinzip - unfortunately there is no article about this in any other Wikipedia than the German one) the laws of this country have to be used in which the Wikipedia language version is mostly consulted. Therefore i. e. German Wikipedia is liable to the laws of Germany/Austria/Switzerland and thus i. e. the DMCA is invalid there (and also in all other Wikipedias than the English one; but even there it is disputable because you have also to take account of the UK/Australia/Canada etc.). Chaddy 03:30, 14 September 2011 (UTC)

The application of Schutzlandprinzip to websites appears to be based specifically in German and Austrian law, rather than in international treaties, and even in German law it does not appear to be perfectly clear. But even if we accept that principle, the fact is that you are assuming that de.wikipedia.org is a completely separate website from all wikipedia.org. I am not convinced that even a German court would agree with you. I believe the German court would say that de.wikipedia.org is part of wikipedia.org, exactly like news.bbc.co.uk is part of bbc.co.uk. WhatamIdoing 17:29, 14 September 2011 (UTC)

Well, it's a clear priciple. And it's also not specifically based in German and Austrian law. It's part of the en:Berne Convention for the Protection of Literary and Artistic Works, the en:Agreement on Trade-Related Aspects of Intellectual Property Rights, the en:World Intellectual Property Organization Copyright Treaty and the en:Paris Convention for the Protection of Industrial Property.

The court would say that de.wikipedia.org is mainly consulted by German-speaking users and thus falls under German jurisdiction. Youtube could write a book about this problem (the GEMA enforced them to censor or eben block many videos with copyrighted music tracks for users with a German IP - also official music videos). Chaddy 17:50, 14 September 2011 (UTC)

Yes, there are many international conventions about copyright. However, so far, only the German and Austrian courts think that the location of the viewer's computer, rather than the publisher's computer, determines which country's copyright law applies. The WMF has previously told the German courts that the WMF doesn't believe that German laws apply to Wikipedia[4] (although the German laws presumably apply to individual German citizens who use Wikipedia)—and so far as I can tell, the German courts have not disagreed with the WMF's position that German law is irrelevant to the WMF's actions. WhatamIdoing 19:26, 14 September 2011 (UTC)

Hello, since the content page had been brought to my attention at de.wikipedia, and thereupon for my part tried to bring it to a broader attention there, I may, if not apologize, then express my regrets that by now this page seems to contain a number of threats that do not pertain to the actual topic of the content page, or some unnecessary attacks and arguments, and my hope that a discussion of the proposed terms of use can take place either on this page or at other places. Some notes on statements in this section:

• there are no "European" Wikipedias since language versions are neither culture, nor country (nor continental) versions.
• it is not illegal in Germany to make statements like "Wolfgang Werlé and Manfred Lauber murdered en:Walter Sedlmayr"
• I can't see from the linked article when WMF has told any German court that WMF does not believe that German laws apply to Wikipedia. Instead the article says:

>>In a written response to Mr. Stopp, Wikimedia questioned the relevance of any judgments in the German courts, since, it said, it has no operations in Germany and no assets there<<,

where Mr. Stopp is a lawyer who doesn't represent any German court,

Greetings --Rosenkohl 21:44, 17 September 2011 (UTC)

So are you going to add the murderers' names to de:Walter Sedlmayr, and risk being sued, or are you going to follow the lead of all the other Germans who have censored it and say that it must remain censored because of German law?

I'm not sure where the link is these days, but the WMF's letter to the German courts was released, and it says that the WMF is not subject to any German laws. WhatamIdoing 16:16, 18 September 2011 (UTC)

I disagree with the current version of the pertaining policy de:Wikipedia:Artikel über lebende Personen of the German Wikipedia, and think it is unnecessarily restrictive, and that the Wikimedia Foundation would have good chances to eventually win a case at the highest German court, like a number of other publisher have won cases in the last years in similar cases of providing archives with newspaper articles with the names of murderers of Walter Sedlmayr. But for time being I've stopped to participate in the discussion of this Wikipedia policy, and one reason why I stopped is that in the article you linked above lawyers who work for Wikimedia Germany give their opinion about German law that suggests not to add the names in the German Wikipedia, Greetings --Rosenkohl 20:30, 18 September 2011 (UTC)

The German courts have agreed that it is not necessary to purge archives. The newspaper need not throw away its historical copies, or go to the library and steal the library's copies of old newspapers. But it is still illegal for Germans to make new references to the fact that these two men were convicted of the murder.

The New York Times article does not quote any lawyers working for Wikipedia Germany. Wikipedia Germany has no lawyers. The article quotes the sole WMF lawyer, who says that de.wiki is welcome to censor itself if that's what its German-speaking editors choose to do, but the WMF is not going to force en.wiki to censor itself if the its English-speaking editors don't choose to do so. WhatamIdoing 22:24, 19 September 2011 (UTC)

WhatamIdoing, the en:Federal Court of Justice of Germany has overruled lower and intermediate local courts (e.g. many decisions of de:Landgericht Hamburg#Pressekammer and the de:Hanseatisches Oberlandesgericht), so that online newspaper archives don't have to purge their online archives. I don't think that German courts have ever ordered to purge public paper copy archives or librarys because of the names of murderers are mentioned in articles. It is not at all illegal for Germans to make new references to the fact that these two men were convicted of the murder. At most it is illegal for German television programs which show actors impersonating a historical crime case to mention the full names of living criminals who will be soon, or have already been released.

The linked article is almost two years old, but currently at least #If you were wondering what this page is about... speaks of a "legal department at the Wikimedia Foundation" where probably several lawyers are working.

Above I didn't write at all that the lawyers are working for "Wikipedia Germany". I'm not sure if the linked article is correct that the Berlin law firm in fact has ever represented the US-based Wikimedia Foundation, but I know that this law firm is working for the association Wikimedia_Deutschland/en (Wikimedia Germany) which is the German chapter of the Wikimedia Foundation, --Rosenkohl 09:01, 20 September 2011 (UTC)

Perhaps we are having a language problem. Here's what I said:

• In a news story printed in 2005, it was legal for a German newspaper to say "Wolfgang Werlé and Manfred Lauber murdered en:Walter Sedlmayr".
• In a brand-new, news story, written this morning and printed today, in 2011, it is not legal for a German newspaper to print that sentence.

Do you understand the difference? WhatamIdoing 16:42, 21 September 2011 (UTC)

Perhaps I have a reading problem, since I don't see where you've made this two statements exactly before. Instead, above you've made other statements, some of them evidently wrong or inaccurate. I don't know to which exact two news storys "printed in 2005" or from "today in 2011" you refer now, or if you just mention these as two hpyothetical example news storys; at least you don't give sources for your two statements, and I doubt there are valid sources, --Rosenkohl 20:00, 21 September 2011 (UTC)

I have not used those specific examples before, because I previously thought that you would grasp the important difference between "is" (present tense) and "was" (past tense). Do you understand how these two statements are different? Do you understand that the sentence that was perfectly legal for a German newspaper to publish, using ink on newsprint (paper) in 2005 (while Werlé and Lauber were in prison) is not legal for that same German newspaper to publish today, in 2011, using ink on newsprint, now that they are not in prison? WhatamIdoing 16:43, 22 September 2011 (UTC)

You make claims, but don't give sources for what you claim. It is useless to discuss unsubstantiatet claims on the internet. There is neither a law, nor any high court decision which would prohibit German newspapers from publishing this sentence after the persons have been released from prison. Perhaps in practice, most of the major German newspapers avoid to print this sentence today for some reason; perhaps they are afraid to lose a lawsuit at lower or intermediate courts, perhaps no publishing house wants to lead an example case to the highest court. But this does not mean at all that the sentence was illegal for them to print today. For another example, Michaela Roeder was convicted to 11 years of prison in 1989. Nevertheless, in 2006 http://www.spiegel.de/spiegel/print/d-45624791.html is printing the full names of Olaf Däter and Roeder, while it abreviates the last names of Wolfgang L. and Stephan L. It seem the Spiegel has purged all its archive articles from the names of Werle and Lauber, while it still provides articles from 1993 with the full name of Wolfgang Lange (Wolfgang L.), see http://www.spiegel.de/spiegel/print/d-13680581.html. So obviously major German newspapers decide about abreviating or purging names of convicted person on a case by case basis, and not for pure reasons of legality. For example, in December 2006 even judge Buske at the Landgericht Hamburg, refused a request for a preliminary injunction against "Wikipedia" (perhaps Wikipedia means Wikimedia Foundation here) to publish the name of one murderer of Walter Sedlmayr, see http://www.buskeismus.de/urteile/324O95206_archive.htm. So your claims about the legal situation in Germany are not only unsourced but even wrong. --Rosenkohl 10:57, 25 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 22:47, 7 October 2011 (UTC)

No right to change the TOU!

Resolved.

You, the Wikimedia Foundation, do not have the right to change your terms of use. As stated in the current terms of use, you must not change them. Just look at the first bottom sentence. And even if that wouldn´t be there, the current terms of use don´t give you any right to change them without the agreement of all current users, who are part of that. The terms of Use are a treaty with two sides: If you don´t have the right to change it alone because it is stated in it, you need both partner´s agreement. But it states that changes are forbidden, so...--89.204.137.196 07:54, 14 September 2011 (UTC)

That's not true. The current terms of use are not to be modified—by Wikimedia editors, not by the WMF. The WMF owns the whole enterprise, and they can offer you access to their privately owned websites under any terms they want. They have the legal right to change the terms every single day of the year, if that's what makes them happy. They can even close the whole thing down with no warning, or ban users based on a random number generator, or blindly delete all of your changes, or charge you for editing.

Users like you and me have almost no legally enforceable rights here. Our actual substantive rights as editors are two: to start our own website and to go away (mad, if necessary). If you don't like the WMF's new terms (assuming they choose to adopt them), then I suggest that you exercise your right to go away. If you choose to use a WMF website, then you must accept their terms of use. WhatamIdoing 17:21, 14 September 2011 (UTC)

Thats exactly why we should move away from the WMF. Creating a fork and ensure by contract that the communities will have veto rights against changes. --Niabot 17:26, 14 September 2011 (UTC)

Die Foundation ist nichts ohne ihre Autoren. Vielleicht sollte man wirklich einen Fork machen um den Damen und Herren in Frisco zu zeigen auf wessen Arbeitskraft ihre sogenannte Macht beruht. Liesel 17:29, 14 September 2011 (UTC)

I just wanted to jump in here and say that (if I understand the German well enough), that Liesel is correct. The Foundation is nothing without volunteer authors, and it cannot do "whatever it wants" at all times. We're accountable to the community in a very real way, both through the fact that our actions are publicly assessed in places like this, but also legally because we are responsible directly to the Board of Trustees, the majority of which is elected from the community. It is the express job of the legal department at the Foundation to work on improving our terms of use if they think there are legal risks for the movement. But that doesn't mean we own the projects. Steven Walling (WMF) • talk 18:08, 14 September 2011 (UTC)

Actually, the WMF does own the projects. The WMF does not own the volunteers. Volunteers ≠ projects. WhatamIdoing 19:04, 14 September 2011 (UTC)

You should add: It does not own the content - at least not alone. It does not own the authorship and it can't survive without it's authors. --Niabot 21:33, 14 September 2011 (UTC)

Ein Teil dieser Aspekte gedachte ich hier ja bereits festzuhalten

Darüber sollte man wirklich ernsthaft nachdenken, zumal sich die Foundation vom spendenfinanzierten Verein immer mehr hin zu einem Wirtschaftsunternehmen (zwar lebend von den Spenden und der Arbeitskraft Freiwilliger Sklaven) entwickelt, dem offensichtlich die Grundprinzipien fremd geworden sind, bzw. nicht mehr zu tangieren scheinen, so wie man es entsprechend nebenstehender Karikatur als Kritikpunkt entnehmen kann. Die erste zu klärende Frage wäre die Finanzierung eines solchen Vorhabens. Naheliegend könnte es sein die deutschen Spendengelder in eine entsprechende Alternative zu investieren und nicht mehr der Foundation so großzügig in den Hals zu werfen, der dadurch wohl schon derart verstopft ist, dass es die Hauptschlagadern abdrückt. --Niabot 18:12, 14 September 2011 (UTC)

Yes, if volunteers get mad at the WMF, they can leave. Yes, you could create a a competing project. But most volunteers will not object to the new (proposed) terms of use, so most volunteers will not choose to leave. Despite all your talk about leaving, I expect you to still be here next year. Most people who talk about leaving Wikimedia—are just talking, not leaving. WhatamIdoing 19:08, 14 September 2011 (UTC)

No, u definitly dont have the right to banish all that volunteer authors have done so far to trash...thats what u are doing. The "right to leave" is getting the "pressure to leave" under those conditions. Means: u want to get rid of certain authors. Critics arent welcome, they have to be thrown out. U r undemocratic, go to Syria...--Angel54 5 20:51, 14 September 2011 (UTC) And btw: ur statement was more than cynical, so I used the same attitude...

I fully agree that Wikimedia is little without its volunteers, who have developed this incredible site with their own knowledge, sweat, and research. I'm hearing strong views against a user agreement, and seeing others that are supportive. What I do hope, if we do have a new terms of use, that this version will capture the spirit of the Community and the importance of our editors. It may require some rewriting, but that is my goal. Geoffbrigham 21:44, 23 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 22:47, 7 October 2011 (UTC)

WSJ Op-Ed "Should Faking a Name on Facebook Be a Felony?"

For people who may be skeptical about the problem of violations of site Terms Of Use becoming criminal charges, or used for frivolous legal action, there's a current Op-Ed on the issue in the Wall Street Journal by well-known conservative law professor Orin Kerr "Should Faking a Name on Facebook Be a Felony?": "The little-known law at issue is called the Computer Fraud and Abuse Act. It was enacted in 1986 to punish computer hacking. But Congress has broadened the law every few years, and today it extends far beyond hacking. The law now criminalizes computer use that "exceeds authorized access" to any computer. Today that violation is a misdemeanor, but the Senate Judiciary Committee is set to meet this morning to vote on making it a felony.". So the potential for abuse is quite relevant. -- Seth Finkelstein 13:51, 15 September 2011 (UTC)

Note that if breaching the Terms of Use is a felony then any prosecutor can decide to take it on himself to enforce those terms, for example by prosecuting an editor for a good faith edit which the prosecutor doesn't like. Do we need to make it clear that the board is the ultimate arbitor of what does and does not breach the terms of use? This is another reason for making the terms vague. It's easy to launch a prosecution and take someone to court for 'harassment' or 'posting a lie'. You will look a bit silly taking someone to court for 'failing to imagine a world where every human can share in the sum of all knowledge'. Elected prosecutors don't like to look silly.--Filceolaire 21:53, 15 September 2011 (UTC)

The vaguer the terms, the easier it is to abuse them. If you think that anyone can launch a prosecution for "harassment" because it's so vague, then imagine how easy it would be to prosecute someone for "failing to further the vision". Even refusing to donate money to the WMF could count as "not furthering the vision". WhatamIdoing 22:02, 15 September 2011 (UTC)

Really? Then we need to make it clear it is up to the Foundation to decide whether your actions do or do not breach the TOU. If the board declare a user has not gone against the WMF vision then any prosecution in a court is much more difficult to prosecute. Harassment is a legal term. Imagining a world is not. The foundation is obviously the authority on what does and does not go against our vision but the courts get to decide what is harassment.--Filceolaire 23:35, 15 September 2011 (UTC)

If you are concerned about people being sent to prison for doing online what is perfectly legal when they do it in person or on a piece of paper, then you need to fix the laws that pretend using a fake name on Facebook could be a felony when using a fake name in every other social circumstance is 100% protected free speech. WhatamIdoing 17:26, 16 September 2011 (UTC)

As I understand, Senators Grassley and Franken have introduced an amendment which would modify the definition of "exceeds authorized access" in 18 U.S.C. 1030 to exclude violations of a TOS, if that's the only basis for the charge. Geoffbrigham 22:02, 23 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 22:46, 7 October 2011 (UTC)

federal or state law

Resolved.

As well as repetition there is an inconsistency and even contradiction, with multiple references to:

1. "the laws of the United States and of your home country"
2. "the laws of the United States, where we are based, and the laws of your home country and jurisdiction."
3. "the laws of the United States or your own country or jurisdiction"
4. "any applicable law or regulation"
5. "U.S. federal or state law concerning child pornography"
6. "any federal or state law otherwise intended to protect the health or well-being of minors"
7. "the laws of the State of California and, to the extent applicable, the laws of the United States of America"

In my opinion shortest is usually best, and "any applicable law or regulation" is the only one that covers the not uncommon eventuality of editing whilst travelling abroad (I've edited Wikimedia sites from computers in at least four different countries, as well as the one I live in). I'm assuming that the omission of "U.S." from "any federal or state law otherwise intended to protect the health or well-being of minors" was simply a typo, and we don't have to try and comply with the Federal laws of some countries that for example criminalise homosexuality. I'd suggest removing the redundancy and if you must spell out which laws apply ask your lawyers to concoct some legalese to the effect of:

As we are based in the US state of California, your editing of and downloading from our sites must comply with the law here, as well as wherever you are when you edit. (I'm hoping that as I type this the only laws I have to comply with are those here in London where I'm typing and over in San Francisco. Nigerian Federal law, Alaskan state law and indeed the state and Federal law of Dafur state in Sudan are hopefully as irrelevant to my editing as English law would be to editors in Dafur, Lagos or Alaska. WereSpielChequers 17:01, 15 September 2011 (UTC)

Good suggestions here. Thanks. Geoffbrigham 22:06, 23 September 2011 (UTC)

Basically, it works like this:

• Because the WMF is in California, USA, everybody has to comply with the laws that affect the WMF.
• If (and only if) you aren't also an American national, then you must additionally comply with your own nation's laws
• If (and only if) you aren't also located in California, USA, then you must additionally comply with any and all local laws that you are subject to.
• The set of "laws that apply to the WMF because the WMF is in California, USA" and "laws that apply to you because of your nationality or location" are what is indicated above. WhatamIdoing 22:07, 15 September 2011 (UTC)

Next - u dont know what u r doing? This means in reverse, if the WMF has complaints, each author of a world wide project has to go to California to make that case? U know exactly, what u r doing!--Angel54 5 22:16, 15 September 2011 (UTC) Each word u write is an abysmal infamy, in ur opinion the not donating people are hindering the progress of WMF? To donate means, to give sth. freely...if I had the money, I really would publish those sentences of narrow-minded people in twenty of the biggest newspapers worldwide, to hinder that people donate money than help such OTT people like u.--Angel54 5 22:30, 15 September 2011 (UTC)

What makes you think that a donation benefits me?

My relationship to the WMF is exactly the same as yours: I'm a volunteer editor. WhatamIdoing 17:16, 16 September 2011 (UTC)

Just that Angel 54 is indefinitely blocked account at his home wiki, confirmed by de-ArbCom. It is probably wisest to ignore him. --Tinz 22:46, 16 September 2011 (UTC)

Didnt know this discussion is about me. Seems to me that Admin S1, who banned my account there is meanwhile banned himself. U dont know nothing...ignore who u want to ignore.--Angel54 5 10:12, 17 September 2011 (UTC)

Re to Whatamidoing, yes I agree that's presumably what they were intending to say. My concern is that the current draft is long winded and ambiguous. There is a separate issue that Angel raises as to what the terms should say. My concern in starting this particular thread is that we should reword this for clarity and consistency - and that needs to be done whatever the terms are supposed to mean. Remember we are a charity devoted to summing the world's information for all. If we can't phrase our own legal statements in a clear and understandable way, how are we supposed to handle complex stuff like Astrophysics and Philosophy? WereSpielChequers 14:46, 19 September 2011 (UTC)

Thanks for the feedback. I have used the phrase: "the laws of the United States and other applicable laws (which may include the laws where you live or where you view or edit content)." After using that phrase, I then shortened to the term: "applicable laws." I have not changed the venue qualification in Section 13, since that geographical location is specific for legal reasons. I understand that there is some concern about that provision, but I suggest we discuss that concept separately. Geoffbrigham 02:20, 7 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 11:43, 7 October 2011 (UTC)

Do You really want to collect huge amounts of personal data for obscure purposes?

Resolved.

The euphemism keep only a limited amount of information at „2. Please Look at Our Privacy Policy“ very poorly disguises the ongoing of the current attempt to collect huge amounts of personal data of editors for uncountable and unforseeable purposes.

If You wanted to strengthen the community You would have bound Yourself by writing:

"We keep only as much data as necessary to write an encyclopedia. We only use Your data for the purpose it was given for".

If You will not do this You will get in rough trouble with European data privacy legislation and judiciary. In Germany currently it is seriously doubted that commercial Wikipedia mirrors are legal because the history of article pages hast to show full IP-adresses. This ten years of unshortened IP-adresses with exact to the second edit-times allow to generate detailed user-profiles which in addition is made far easier by the toolserver. But I'm sure: A ten years old dynamic IP-adress isnt't necessary either for vandal hunting or for copyright purposes.

So please stop data mining, start freedom of personal data. --79.226.62.194 11:02, 16 September 2011 (UTC)

The licenses (GFDL and CC-BY-SA) require some sort of identifying information for the person making a change. For people who do not choose to create an account, their IP address is the designated identifier. The IP address is retained solely for the purpose of complying with the legal requirements of the license, and only to the extent that is necessary for that purpose. Under all other circumstances, identifying information (which includes not only your IP information, but also things like what sort of computer browser you're using) is normally retained by the WMF only for a few months. WhatamIdoing 17:15, 16 September 2011 (UTC)

1. It is a fairy tale that CC-BY-SA or GFDL would require that. I becomes not truth by repeating. These licences require no identifyng. They only require the name of the authors (of more than marginal edits). So first an author who does not give his name waives this right. An IP is no name. So we can shorten this IPs.
2. The sentence "The IP address is retained solely for the purpose of complying with the legal requirements of the license" is wrong. We only need the order of edits in history, but not day, minute and second. And we do not need the exact date of editing longer than three months for vandal fighting.
3. "identifying information (which includes not only your IP information, but also things like what sort of computer browser you're using) is normally retained by the WMF only for a few months." is exactly what I wrote: Collecting huge amounts of personal data for obscure purposes. You need this data (legally) only for CUs. CUs should be done in one month (or three?). So you should automatically delete this data after one month (or three?).

--79.226.62.194 06:09, 17 September 2011 (UTC)

The GFDL does not require specifically that IPs be used, but it requires that something be used to identify the contributor, and IP addresses have been chosen. Everyone who makes an edit while unregistered or logged out is informed of this fact. WhatamIdoing 22:18, 19 September 2011 (UTC)

The GFDL (4.B) requires only five of the principal authors. I seriously doubt that IP adresses are authors or names of authors. Because only principal authors are required, it is no problem to skip at least minor IP edits. (Same with cc-by-sa)

If "IP addresses have been chosen" it is no problem to choose again. For a computer this change would only be routine work. You have computers, haven't You? Why don't You choose a consecutive alphanumerical number for each IP-edit? You could nevertheless reveal the IP adress to editors for a limited period of time (x <= 1 month) to fight vandalism. --79.226.48.69 10:59, 20 September 2011 (UTC)

If we did not use the IP address to comply with the license, then we would not be retaining it. For all other purposes, the information is normally purged within a few months. WhatamIdoing 22:18, 19 September 2011 (UTC)

"is normally purged within a few months" is too soft. It could be two months or nine. This is an invitation to favour someone. Make a binding statement which treats everybody equal:

• "This kind of information will be purged automatically after three months."

Additionally You forgot that editing with IP adress can also be perceived as waiving the right of mentioning someones name. In fact IPs have no other means to waive the mentioning of their names. Because dynamic IPs are allocated to different people after each other they don't represent a name nor an individual. If You fill out a form field "name" with a random number like the current time code or an IP adress You don't give a name. Similar the number in the header of an OTRS-ticket does not represent the name of someone. --79.226.48.69 10:59, 20 September 2011 (UTC)

I disagree that the information needed by the devs and the checkusers (a process that is not legally required) and to assist law enforcement requests (a process that is only legally required if you freely choose to collect the information in the first place) is either "obscure" or "huge amounts of personal data". It is less than what many sites choose to collect, and the uses are plainly described in the terms of use. WhatamIdoing 22:18, 19 September 2011 (UTC)

1. It is obscure because it is not said numerative and exhaustive what data is stored, how long it is stored, and that data which is said not to be stored nevertheless is stored in public edit filters.
2. It is a "huge amount of personal data" because Wikipedia is very successful. German and English articles together are more then 5 millions, not counted meta and discussion pages. And this is very sensitive data because You can easily filter it by opinion and personal interest.

You are right that checkusers and law enforcement requests are principal good reasons to use this data. But citizens need to be protected against laws which collect to much private data (Big brother is watching You). If You don't have data on IPs older then three months, no law can collect it. All people are treated equal then. --79.226.48.69 10:59, 20 September 2011 (UTC)

I believe the above discussion concerns more the privacy policy than the terms of use. The privacy policy makes clear that, for those who do not register, a user will be "identified by network IP address." Whether that is a good idea or not is probably more relevant in discussing the privacy policy. The terms of use simply seeks to remind users to read the privacy policy. It is true that, compared to other sites, we process only a minimal amount of personal information. In addition, for those who do not register, we need an effective and unique way to identify editors to comply with attribution requirements. Geoffbrigham 23:26, 23 September 2011 (UTC)

Neither what data is collected nor "the uses are plainly described in the terms of use."

You cannot easily find the information

• how long IP data of authors with accounts is stored
• that data which is officially not saved is nevertheless saved in public readable edit filters (including IPs)
• that with help of toolserver you can easily make individual profiles of even IP users for a period longer then ten years.
• that not only the external but also the internal IPs are stored for an unknown amount of time
• that Wikipedia stores browser identification and preferred language (and an unknown amount of further information) for an unknown amount of time for checkuser purposes

before you click on save page. So the consent to save this data is at least questionable. I dont't think minors have an overview on what they reveal by editing Wikipedia, so there consent is null and void.--79.226.48.69 10:59, 20 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 22:41, 7 October 2011 (UTC)

Using information

Resolved.

Re "Using any information obtained from a Project website to harass, abuse, or harm another person" - is adding conditions about how people use the information compatible with the Creative Commons licence? (Not a rhetorical question - genuinely wondering). 87.254.77.167 23:11, 9 September 2011 (UTC)

It is compatible. i.e. I can use information obtained from Wikipedia to harass someone, however doing so will mean that the WMF can terminate my privilege of contributing to WMF projects. This will mean that w:WP:BADSITES will become a WMF enforced policy. John Vandenberg 04:28, 10 September 2011 (UTC)

Compatible (and, I think you suggest, not good), but not enforceable. Most information is mirrored, the WP:BADGUY could simply claim it came from one of those mirrors. I really think that repeating what is already a legal obligation is redundant, what is not is "Whistling Dixie" Rich Farmbrough 14:17 11 September 2011 (GMT).

incompatible: You may not offer or impose any terms on the Work that restrict the terms of this License or the ability of the recipient of the Work to exercise the rights granted to that recipient under the terms of the License. cc by sa 3.0 legal code Syrcro 17:21, 12 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 23:32, 8 October 2011 (UTC)

A few thoughts

Resolved.

I've read through Section 6 the entire document (except a few sections as noted below), and am generally impressed. I have listed some important issues below though:

• In "Overview of this Agreement," the terms "our" and "we" are used without being defined in that section. I realize it is defined in the lead, but this is such a critical point that I believe it should be repeated in the overview. In so many places on our site, "we" is used to refer to the community. I think it's essential this distinction be very clearly expressed in the overview.
• Done This appears to have been resolved, pending changes to the document, in another section above. -Pete F 21:16, 22 September 2011 (UTC) Capitalizing words that are not proper nouns -- for instance "Community" in the lead section -- seems very odd to me, and for whatever it's worth, is certainly out of step with the English Wikipedia's Manual of Style. I think in legal documents maybe it's commonplace to capitalize terms that have specific, defined meaning in the current document; but I'd suggest taking a closer look at this before publishing. Perhaps if caps are used to indicate legal significance, a short glossary of capitalized terms would be useful.

I'm fine with redoing this. Geoffbrigham 00:38, 27 September 2011 (UTC)

• For a legal document, it seems dubious to link to a Wikipedia page without linking a specific revision -- even for the description of a general concept. For the w:en:DMCA, it seems especially important; but I think it's important for w:en:Free culture and others too. I would suggest finding a recent revision that is accurate, and linking directly to that revision.

I need some help here. Can you give me better examples of recent revisions? Geoffbrigham 00:38, 27 September 2011 (UTC)

He means that rather than linking to whatever the current version of the page is (which could be vandalized or otherwise horrible), that you might want to pick a specific version of the page, i.e., the page as it appeared on "00:57, 27 September 2011" rather than this minute's version. The way that you do this is to link to the "oldid". If you go to this (or any) page's history, and click on the timestamp, it will give you a URL that contains the oldid; the ideal method of linking might change from site to site (en:Template:Oldid is not the same as Meta's Template:Oldid), but the whole URL will always work.

The advantage is that the linked page will have stable, known content. The disadvantage is that it will not contain any improvements/changes after that date (which, for a policy page, could be dramatic). WhatamIdoing 01:11, 27 September 2011 (UTC)

• "you should seek the help of a licensed professional" strikes me as a very U.S.-centric phrase. Surely we have many users in countries that lack licensing bodies for these professions? I think some careful rephrasing may be needed. The phrasing in Section 3: "Licensed or knowledgeable" (emphasis added) seems much more appropriate.

Good point. Geoffbrigham 00:38, 27 September 2011 (UTC)

• "we do not represent or guarantee the truthfulness, accuracy, or reliability of any submitted content." This strikes me as strange in its all-encompassing language, as there are certainly Foundation reports, financial statements, etc. where the Foundation has an important role in endorsing the accuracy.

OK. Rewording can address this point. Thanks. Geoffbrigham 00:38, 27 September 2011 (UTC)

• Done, assuming the changes discussed above (see #linking is not a crime) are implemented. -Pete F 21:16, 22 September 2011 (UTC) § 4: "Linking to material that violates any provision of this Agreement or any applicable law or regulation" seems excessive. If an editor links to copyright content, how can he or she be expected to know whether or not the copyright holder has granted permission for it to be posted? It is very common, for instance, for users to make citations to Google Books, where there are current, important legal questions making their way through the courts. I would hate to think that these productive, good faith Wikipedians are violating our terms of use simply by providing high quality references.

NoteI now see that Effietsanders provided an even more compelling counterexample above -- in order to argue that another user be sanctioned for copyright violation, it is often necessary and advisable to link to copyright violations, on Wikimedia projects and elsewhere. -Pete F 23:29, 16 September 2011 (UTC)

• § 6, on Trademarks: examples of trademarks would be helpful; there is so much confusion about trademark and copyright in our community, I think a little extra clarity here would go a long way.

-Pete F 17:41, 16 September 2011 (UTC)

We can do that. Geoffbrigham 00:38, 27 September 2011 (UTC)

On the point about licensed professionals, I believe that every country (or nearly every country) licenses both physicians and attorneys. Where they differ is in the extent to which providing medical or legal services without a license is illegal. "Qualified" might be a suitable substitute that encompasses both formal licensing and appropriate knowledge. WhatamIdoing 17:52, 16 September 2011 (UTC)

Good suggestions. Geoffbrigham 00:38, 27 September 2011 (UTC)

continued

• §7a: Big problem here, this fails to clarify the one example it puts forward. I have never been clear on this, and it's vitally important. When I contribute to Wikinews, am I only required to release it under CC-BY-2.5, or am I required to multi-license it CC-BY, CC-BY-SA, and GFDL? The present language is unclear.

You are right that this is not clear. Wikinews seems to have a unique history here. Wikinews states the following at the bottom of its page: "All text created after September 25, 2005 is available under the terms of the Creative Commons Attribution 2.5 License unless otherwise specified." Interestingly our user agreement does not presently address this exception, but Wikinews does not include the user agreement in its footers. As I interpret the state of affairs today, I believe you are only required to release Wikinews contributions under CC-BY-2.5 without multi-licensing. (If I have this wrong, please feel free to correct me; also I'm interested in hearing more why Wikinews uses 2.5.) In short, we can be clearer on this point, given your concern about the ambiguity. Geoffbrigham 00:38, 27 September 2011 (UTC)

• §7a: Grammar: "Text that you hold the copyright to" should be "Text to which you hold the copyright" (two instances)

Agreed.Geoffbrigham 00:38, 27 September 2011 (UTC)

• §7b: If we're going to explain, we should explain fully. Those who are not highly familiar with wikis will be confused by the concept that a link to the article constituted attribution, because our articles do NOT attribute authors in the ways traditional media does. If I understand correctly, the "attribution" that is accomplished by linking to the article is by virtue of the presence of the "history" tab, which lists all contributors. If this is what's going on, it needs to be explained. Otherwise it looks like we're arbitrarily redefining a perfectly good English word, to unknown purpose.
• §7b (and others) - for the final version, I suggest the following syntax: <OL STYLE="list-style: lower-roman inside">, which will produce much cleaner-looking output:

1. item
2. item
3. item

• §7c: Grammar, this conditional is mismatched: "If you import text under a CC BY-SA compatible license that requires attribution, you agree to credit the author(s)."

alternative:

• "You agree that if you import text under…, you will credit the author(s)."

Points well taken. Geoffbrigham 00:38, 27 September 2011 (UTC)

• §7c: Does the word "unfortunately" belong in a legal agreement? Can it simply be cut?

We can cut it. Geoffbrigham 00:38, 27 September 2011 (UTC)

• §7F: "You will not… seek invalidation…" This phrasing sends a chill down my spine. Prohibiting unilateral revokation makes perfect sense. But prohibiting good faith inquiry in a case where somebody may not have understood the consequences of their decision, and where the complexity or harm of removing the content is minimal, just seems like dirty pool. We are founded on principles of good faith collaboration; and sometimes there is a need to discuss complex issues. It's a rare occurrance, but it should not be prohibited in this way. For an example, read this discussion: http://en.wikipedia.org/wiki/Talk:Tonya_Harding#Michael_G._Halle_image

OK, what I'm trying to avoid is the unilateral revokation, which is disruptive to the Project and not in the spirit of the Creative Commons or free license. In addition the reality is that once you have made contributions, you cannot really delete them from the system (with rare exceptions). They will always appear in the history page. That said, I'm interested in proposed language to address the above point.Geoffbrigham 00:38, 27 September 2011 (UTC)

• §7g: This needs to be clarified, it stands in stark contrast to the rest of the document's specificity. On Commons and Wikisource, there are extensive debates every day about what constitutes "public domain" in what country. This needs to be placed in an international context in which different countries have different policies on different kinds of media, and recognize one another's policies in some cases but not others.

I think we need to specify that it is in the public domain of the U.S. and any other countries as specified in the Project's policy. Geoffbrigham 00:38, 27 September 2011 (UTC)

• §7h Here and in other places, CC-BY-SA is listed without a version number; but above, in the Wikinews example, CC-BY 2.5 is referenced. Can this be more consistent?

Yes, I think so. We were mimicking the present user agreement. Geoffbrigham 00:38, 27 September 2011 (UTC)

• §7h: grammar: "text … may attach additional attribution requirements" Text doesn't attach requirements, people do.

Right. Geoffbrigham 00:38, 27 September 2011 (UTC)

• §7i: Word choice: "For instance, if you are re-using text content in a wiki, it is sufficient to indicate in the page history that you made a change to the imported text." "For instance" is not the right choice; a wiki is not an example that is typical of other examples, it's a special case.

OK. Geoffbrigham 00:38, 27 September 2011 (UTC)

• §8: I'm very pleased to see the encouragement about counter-claims! Bravo, legal team!
• §8: needs a link to DMCA. As stated above, I would advise a specific, endorsed revision of the Wikipedia article (or a non-Wikipedia source).

Agreed. Geoffbrigham 00:38, 27 September 2011 (UTC)

Thinking about this more, I actually prefer keeping the link to a variable page. It is only an informational link and, as such, will capture updates over time. Geoffbrigham 01:12, 8 October 2011 (UTC)

• §8: Under "informally" there should be a simple bit of guidance about how to find that link. I think looking for a "Contact us" or "Contact Wikipedia" link or similar is probably the best result. This example is not useful for the hundreds of sites we have besides English Wikipedia, because that link is only valid on enwp.

Good idea. Geoffbrigham 00:38, 27 September 2011 (UTC)

Thinking about this more, I prefer not to give instructions to a "contact us" email. If someone can't find the informal communication route quickly enough, they can email us under the formal path. My chief concern is that a "contact us" email address on a non-U.S. site may not feed into the right OTRS folks or the legal department. Geoffbrigham 01:12, 8 October 2011 (UTC)

• §9: All good!
• §10: Good stuff, but it's overly repetitive. Recommend changing "although it is only rarely the case, there may be times…" to simply "there may be rare instances…"

Fine. Geoffbrigham 00:38, 27 September 2011 (UTC)

• §10 first bullet: Is "this agreement or the law" truly exhaustive? What about other Wikimedia policies like the privacy policy, or project-specific policies?

Good point. Geoffbrigham 00:38, 27 September 2011 (UTC)

• §10: In Wikipedia parlance, "blocking" and "banning" are not synonymous. You block an account, you ban a person.

Good point. Geoffbrigham 00:38, 27 September 2011 (UTC)

• §10, last paragraph: "in addition" seems a strange word choice for the much more commonplace practice.

Good point. We will delete "in addition." Geoffbrigham 00:38, 27 September 2011 (UTC)

• §11 looks good!
• §12: "hopefully unlikely" appears out of place in a legal document.

I'm actually OK with it. I've seen similar phrases in other user agreements. Geoffbrigham 00:38, 27 September 2011 (UTC)

• §13: looks good!
• §14, 15, 16 -- these all look pretty standard to my non-legal eyes, I did not review in detail.
• §17: This section seems good. I do wonder about the phrasing of "we will try to provide you…" with anything. How about "We will try to provide our users"? Hinting that there might be any effort to contact an individual seems unrealistic.

Good point. Geoffbrigham 00:38, 27 September 2011 (UTC)

• §18: Looks standard, not qualified to comment, didn't read closely.
• Closing statement: While I am certainly a big fan of the "Be Bold" catchphrase and policy, it seems an odd note to end on, for a document that will likely be accessed by people in the midst of disputes. I'd suggest just leaving this off. This is a legal agreement, not an advocacy piece. This sort of goes for the entire final paragraph, but the term "Be Bold" in particular jumps out. This is an agreement that applies to everyone, even the tiny minority of trolls that we actually don't value. Rather than risk being disingenuous, I'd rather see a more strictly formal tone.

I tend to agree with you. Geoffbrigham 00:38, 27 September 2011 (UTC)

review complete Hack away! -Pete F 22:52, 16 September 2011 (UTC)

Thank you for these valuable comments. Extremely helpful! Geoffbrigham 00:38, 27 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 01:17, 8 October 2011 (UTC)

New Section Heading added for Angel54 comment re legal remedies

Resolved.

Really boring. This is not about correcting the stuff but refusing it alltogether. The WMF is abusing authors, if they i.g. insist on such stuff that each and every law of the world is irrelevant, but only the one of California should be obeyed. Did u realize, that this is a world wide project? How shall s.o. out of an other country react, if in issues of law ull have to go to SanFran first. If not done within a year, every inquiry will be barred. What a pity. These are terms and conditions which mean, the WMF is always privileged, cause the circumstances will never enable a law suit against WMF. Its simply not possible, to do a cause within a year, not in the UK, not in Germany, not in the States.. --Angel54 5 14:57, 17 September 2011 (UTC)

I do not understand this objection. It takes you more than one full year to start ("file") a lawsuit? So if you have an agreement with someone, and you learn on 01 January 2012 that they refused to hold up their end of the deal, then you believe it would be absolutely impossible to tell the court that you want to sue the person (the first step) until at least the year 2013?

Most Americans, having decided that a lawsuit was necessary, could get that lawsuit started in the same month. WhatamIdoing 16:02, 17 September 2011 (UTC)

I've moved this to a new section as it doesn't have such to do with the comment by Peteforsyth.

Angel your comment is not very clear. You seem to say the 12 month time limit will make it difficult for users to sue WMF. Isn't this a good thing? We don't want lots of lawsuits. We want users to seek remedies through the projects. Can you clarify what your comment is?--Filceolaire 16:18, 17 September 2011 (UTC)

--Filceolaire 16:18, 17 September 2011 (UTC)

@whatamidoing. Probably this is a bit naive concerning this subject. What do u think Facebook does with the members who give them their full name, their email-adress and their IP? Data privacy protection in Germany is quite different and much more restrictive than in the USA. As far as I can see there will be a door openend as huge as a barn door if every such thing is to be judged in California. And if I have problems that my private information here in Germany are passed to a third party by German users, I have to go to a Californian Court then? Everybody can do what he wants in each chapter, cause he or she is secure, there will never be a process and he will never be held responsible for the actions, as condemnable they may be.--Angel54 5 16:30, 17 September 2011 (UTC)

Angel, I don't see the problem. If you are in Germany, and German users did something bad, then the Wikimedia Foundation and California would not be involved. You could just sue the German users. In Germany. This document would have no bearing. Am I missing something? -Pete F 17:28, 17 September 2011 (UTC)

Dear Pete, sure u r missing something? This kind of thing will be bend back and forth. At the moment i.g. the German Chapter wikimedia.de refuses all responsibility concerning data privacy and points to the WMF to be responsible for that, cause they are operating the servers. But concerning German Law they are held responsible of what happens, cause they operate wikipedia.de as Admin-C. If the TOU now definitely settle in California (concerning law), the administration here can do as they will (prosecute, data mining and so on). There will never be a lawsuit and they know that. They are shifting each plea to the WMF, the authors are helpless. There was a huge struggle within the German chapter up until now, cause some people out of the primary ranks used interference in private spaces, invading in data networks, they dont belong and so on...they can do such things cause the WMF provides the protection system...--Angel54 5 18:27, 17 September 2011 (UTC)

And btw. Then in 14. (Disclaimer) the WMF states: "We are not responsible for the content, data, or actions of third parties, and you release us, our directors, officers, employees, and agents from any claims and damages, known and unknown, arising out of or in any way connected with any claim you have against any such third parties." U see? Who the hell is responsible for what?--Angel54 5 18:49, 17 September 2011 (UTC)

The WMF is responsible for the WMF's actions. You are responsible for your actions. I am responsible for my actions. Hackers are responsible for their actions. The WMF is not responsible for your actions, for my actions, or for some hacker's actions.

This is (1) not complicated and (2) very normal. WhatamIdoing 16:13, 18 September 2011 (UTC)

@Angel - Your example is wrong. The German chapter (or any other chapter) doesn't "operate Wikipedia" in that country. The only legal entities that "operate" any Wikipedia (or other WMF wiki) are WMF who are based in California and have made the very common legal requirement "if you use our services and then want to sue us, you agree to do it in a California court", and individual users who are responsible for the posts and actions they make and nothing else in almost every case I can think of. FT2 ^{(Talk | email)} 10:23, 20 September 2011 (UTC)

cause of what,FT2? There is a redirection pointing from www.wikipedia.de to de.wikimedia.org. What do u think clients use for an entry and a lookup of stuff. Its this kind of redirection that ensues that those services of WMF are available in Germany...now the redirection concerning law is done, I will not agree to those shifts in responsibility, sry for that.--Angel54 5 13:27, 20 September 2011 (UTC)

@Pete F: “Am I missing something?”—Maybe. German users did indeed do something terrible to Angel54—they blocked him indefinitely on grounds of grossly inappropriate behavior and had it confirmed by local arbcom. I would imagine that simply suing the users involved isn't going to solve his problem… —mnh·∇· 22:31, 21 September 2011 (UTC)

There wasnt any inapprpriate behavior on my side - but u r free as a bird and surely can come around with the same old stories - as I said, the banning Admin is now banned himself out of "inappropriate behavior". That's fact.--Angel54 5 15:32, 22 September 2011 (UTC)

If u really wanne know, what makes me angry, this entry: http://de.wikipedia.org/wiki/Benutzer:Seewolf/Liste_der_Schurken_im_Wikipedia-Universum#Angel54. This is prosecution definitively done by a head administrator. He knows that many people in German WP know my real name. This list is called: rascal list in the WP Universe. If it would only contain entries made by me, I wouldnt mention. But there are other IPs Ill be held responsible for. This list exists for more than a year - I wrote emails about, no reaction. The only reaction came from the head quarter, I should ask WMF for that, the German chapter shouldnt be responsible for that stuff (it is put on de.wikimedia.org, although a natural person put it there and is not willing to discuss about anything). So I learned what it means to be prosecuted for things I didnt do...--Angel54 5 20:31, 22 September 2011 (UTC) And PS.: This also means, I can do nothing against that false exposure of myself...in my opinion all systems of democracy are meaningless in a project that is entitled to bring "free" content to the world...--Angel54 5 21:08, 22 September 2011 (UTC)

Practically all agreements, including user agreements, set out a venue for litigation, and California makes most sense given that the servers and WMF are located in the United States. Our community has strong views, and we have many contentious (and productive) conversations. But we also feel lawsuits are not the appropriate way to resolve issues. Hopefully we would be able to settle disputes before litigation, in which case this provision would not be relevant. If there is litigation involving WMF, however, it will cost the WMF (and its donors) less to litigate in California. The above reading is correct: Under the agreement, if someone wanted to sue WMF, they can do so within one year of the pertinent underlying facts. Sec. 13. Geoffbrigham 21:56, 27 September 2011 (UTC)

Then please, Geoff, advice Admins that this is sort of behaviour is breaking at least German Law - I do know nothing about Californian law. But what would u say, if someone is collecting information about urself, putting them online, and they are incorrect (cause u r held responsible for things others did). U r trying over several month to talk to this person, who put the information online and then get the information from Pavel Richter (CEO of German chapter) that all this is in responsibility of WMF. What would u do against such incorrect information? And btw. I have those emails, they are refusing every and each responsibility for anything. If u think this is ok, then this is how it should be. But Im not convinced about respectability. Then I mean, if it isnt in the interest of the WMF to have such themes, why do admins behave like that - concerning German law this is a not allowed data collection and it has to be erased in a certain time (data collection is prohibited). U know, I have a profession, and my reputation is online with such a stuff. Those are private information and they are incorrect.--Angel54 5 17:16, 28 September 2011 (UTC) PS.: Do u know how it feels to be held for someone from a fire-brigade and u r not the same person? Tell me, what shall I do - sue the WMF for such a nonsense, cause I get no answer?...--Angel54 5 17:47, 28 September 2011 (UTC)

Hi Angel. It is a bit difficult for me to respond on a wiki without knowing all the facts. But feel free to send me an email, and I will be happy to discuss. Geoffbrigham 01:47, 8 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 11:33, 8 October 2011 (UTC)

Why?

Resolved.

IMHO, there a number of questions to be answered before it makes sense to discuss the document in detail. Most important is the reason why change is needed in the first place. The first paragraph of this page tries to address this. However, the reason given, literally boils down to "I think we do". Honestly, this cannot be the base for a potentially disruptive change. So let me put down explicit questions that need to be answered:

• What exactly are the problems that need to be solved?
• We already have a ToS in effect since ten years. What exactly are the issues with it?
• Are these issues so severe, that they can only be resolved with a complete rewrite?

--KaiMartin 15:23, 18 September 2011 (UTC)

To answer perhaps a bit more bluntly than WMF people would be able to put it - as the Wikimedia Foundation gets larger and larger, (which means it has deeper and deeper pockets), and Wikipedia grinds through more and more editors, it becomes more and more likely it'll get seriously sued some day. Whether it's the grief-stricken parents of an emotionally troubled teen who commits suicide over Wikipedia for some reason, or a sex picture uploaded to Commons which causes a scandal, or medical misinformation - someone is going to make the argument that the Wikimedia Foundation had a duty of care, where it was negligent. The job of the WMF's counsel is to "lawyer-up" the Wikimedia Foundation as much as possible against that eventuality. -- Seth Finkelstein 20:07, 18 September 2011 (UTC)

Two thoughts: when you hire a professional to evaluate your liability, and he says, "You have some avoidable legal exposure here, which you can reduce this way", it's kind of silly to say, "Well, that's nice, but most of the teenagers and young adults, who make up our userbase and who have no legal training at all, don't believe that you know what you're talking about, so we're not going to do anything."

Second, the question is how to best resolve the problem, not how to make the fewest possible changes. WhatamIdoing 17:04, 19 September 2011 (UTC)

This is what I am asking for: What are the avoidable legal exposures of the old Terms of service? Please name the paragraph and the specific risk. Extra points for a reference to relevant actual lawsuits.

A minimum set of changes is not a value in itself. The goal to go for, is a minimum risk of making matters worse. A complete rewrite poses the risk to involuntarily add new loop holes -- loop holes that may or may not be more severe than the ones of the original version. Experience shows, that it is much easier to get complicated documents right by evolutionary steps, each of which is an improvement. Legal matters at a level that requires professional advice are no exception to this general rule.---<(kmk)>- 20:13, 19 September 2011 (UTC)

Yes, I know that's what you're asking for: You're asking a professional with expertise in this particular area to justify his professional legal opinion to you, a person with zero legal training. You give no reason for refusing to accept the professional opinion of an expert.

I could equally demand that Charles Hard Townes explain to me, a person with little knowledge of physics, why he is convinced that lasers have such high spatial coherence, but it seems to me that it would be equally pointless. WhatamIdoing 22:13, 19 September 2011 (UTC)

Unlike you assume, most physicists are not shy to share their knowledge with laymen. Mr. Townes is known to be no exception.

Anyway, if the problems with the current are so widespread and severe that a complete rewrite is the way to go, it would certainly need no nobel prize nominee to spot them (assuming a nobel prize for applied law). In other words, the foundation is asking their users to trust a couple lawyers. Lawyers, who are not known by name, the details on their reasoning is not given, who were not hired and who prefer not to be held responsible for their advice.Surely, you are joking!.---<(kmk)>-

Whatamidoing, I'm not sure that's a fair characterization. In this scenario, the lawyer serves the WMF, the WMF serves the community. So it's worthwhile for those of us in the community to understand the motivations behind changes, and what sort of effects they might have. It's quite common for a professional with specific expertise to express their goals and processes in terms their client can understand. I think that's all Kai is asking for, and I think it's an excellent request. -Pete F 22:19, 19 September 2011 (UTC)

Unfortunately, your assumption is not true. The lawyer serves the WMF. The WMF (by law) serves its charitable purpose. "Serving the community" is not the WMF's charitable purpose.

I know this is hard to hear, but that is the actual fact: keeping editors happy is not the WMF's raison d'etre. Keeping editors happy is one possible means towards achieving its charitable goal, but it is not a legally necessary activity.

Exercising due care for the organization is one of its legally necessary activities. In the instant case, that means hiring a legal professional to provide advice about whether changes are necessary, and, if changes are recommended, making them. It does not mean spending any of the WMF's extremely limited legal resources to justify the professional opinion to volunteers with zero legal training. WhatamIdoing 22:34, 19 September 2011 (UTC)

Whatamidoing, your rhetoric is stronger than I like, so I'm thinking I might just rather disengage in this section. I have a good understanding with Geoff, had a good relationship with Mike before him, and find myself able to talk reasonably with most members of the community and staff. It would be nice if that list included you, but if you're bent on discussing all this in adversarial terms…so be it. I'm sure there are others that will engage with you. -Pete F 23:11, 19 September 2011 (UTC)

This is an amusing case study of Wikipedia's "expert" problem - Experts are expected to spend large amounts of their time explaining their reasons to editors with no knowledge of the topic, with references for each point. While being argued with. And ironically, the Wikimedia Foundation can't bear to do it itself here! Anyway, a quick answer is to read up on licensing issues. -- Seth Finkelstein 23:42, 19 September 2011 (UTC)

Your argument would be much stronger, if you would name a couple of issues with the existing ToS. No need for "large amounts of time", no need to teach basics -- just pinpoint the specific problems. The content page claims that the work has already be done, anyway. Why not use the results to persuade users like me? BTW, references to relevant lawsuits are only needed for bonus points.

Note, that this is not about an article. It is about a document that will affect the whole project, including each and every user. Given, there are deep pockets like it was assumed above, it seems foolish to rely just on pro bono work. So foolish that I have a hard time to believe, it is true.---<(kmk)>- 20:33, 20 September 2011 (UTC)

Kai, the TOS re-write is not being done for free. Explanations here cost the Foundation real money. The only people not being paid for their involvement on this page are the community members like you and me. I have no idea why you decided that this work was being done for free, or why you think the attorney whose name appears at the very top of the page is "not known by name", "not hired", and "not responsible" for his professional advice. WhatamIdoing 16:55, 21 September 2011 (UTC)

My bad! I completely misread your post (22:34, 19 September). Just forget about my comments on that.

Anyway, the foundation better make sure, to keep the editors happy. Unhappy editors are a risk to the project. They may leave -- individually, or as a fork. Granted, this it is rather unlikely an outcome of the way the new terms are installed. But it may be seen as another brick in a slowly mounting wall. If the people laeding the foundation feel like they have to spend money on legal advice, they should also spend money to sell the result to the internal public. Failure to do so is like building a product but not invest in advertisement.---<(kmk)>- 00:57, 27 September 2011 (UTC)

I personally believe that a WMF lawyer looking at these issues is important - but I think I would be accused of bias on that point. :) Obviously, I also believe that Community input and understanding is important. I represent the WMF, but I strongly believe that WMF is about supporting a Community (including its dedicated editors) that deserves tremendous credit for the Wikimedia projects.

In response to this discussion, I have posted above a more comprehensive list of reasons for the user agreement. Hopefully you will find it helpful. Geoffbrigham 01:59, 30 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 11:32, 8 October 2011 (UTC)

Confirmation / Reconfirmation

Resolved.

http://en.wikipedia.org/w/index.php?title=Special:UserLogin&type=signup

Currently, when an user signs up for an account, there isn't a checkbox that says, "I agree to Wikimedia's Terms of Use." When I created my account, I never made a pact with the WMF to follow its rules. Since the original Terms of Use didn't make users legally liable for any of their actions, this was alright. However, this this has changed, there ought to be a checkbox. Persons wishing to create an account ought to know about legal risks of editing. User accounts created before the new Terms of Service should also have to "reconfirm" their pledge to follow the Terms of Use, so they're aware of the new liability. Unregistered users should be asked to check a similar box before submitting a revision to an article, so they're aware of the risks they may be putting themselves in. --Michaeldsuarez 21:22, 18 September 2011 (UTC)

Addendum: I know that en:MediaWiki:Copyrightwarning alright links to wmf:Terms_of_use, but I doubt most users will pay attention to it unless there's a checkbox they need to fill. For unregistered users, the checkbox should be blank by default, since they're the least familiar with the WMF. --Michaeldsuarez 21:31, 18 September 2011 (UTC)

You are legally liable for your actions even if no terms of use exist. To give an example that would have been obvious if you'd thought it through, if you post child porn on Commons, law enforcement will be putting you in prison, not the WMF.

The purpose of a TOS is to clarify for third parties that the WMF is not also liable, as in "Sue only that user, not both of us". Your liability does not change under these terms. WhatamIdoing 16:57, 19 September 2011 (UTC)

I didn't said that the risk of being sued didn't exist previously; I said that users previously didn't agree to be held liable. Most users probably won't realize that they're making such an agreement with the WMF, which is why I'm suggesting a checkbox. --Michaeldsuarez 17:19, 19 September 2011 (UTC)

This agreement does not make the user any more liable than they were five years ago. The liability statements are all about the user agreeing that the WMF is not liable, plus one that explicitly points out the user's existing liability for damages the user inflicts on the WMF (which the user had five years ago under US law; the only thing lacking was the WMF choosing to charitably, but technically unnecessarily, warn the user of this fact). WhatamIdoing 22:03, 19 September 2011 (UTC)

@whatamidoing. I really wonder, if u r a "normal" user. U r a defender of those statues in general. So what? Im against...now how do u destroy my concerns from above...there wasnt any answer, just (logical) rubbish. This is that and that is that, as if the relationship between WMF and its users is a machine. This isnt true, u must be WMF itself...--Angel54 5 21:06, 19 September 2011 (UTC) To make those TOU more likeable u use even the most bad picture available: loading up child pornography...did anybody do this the last ten years?

In German u would call such a defense "propaganda", if u know what I mean...--Angel54 5 21:21, 19 September 2011 (UTC)

If by "normal", you mean single, male, under the age of 30, and unable to spell English words correctly, then, no, I'm not "normal".

Yes, there have been a few cases of child porn being uploaded to Commons. The WMF deletes such files and cooperates with law enforcement in the hopes of getting the offenders sent to prison. WhatamIdoing 22:05, 19 September 2011 (UTC)

@WhatamIdoing: Look, I didn't start this section to argue about liability or the specifics of the new TOU; I started this section in order to suggest ways to increase awareness of what the user was agreeing to and the possible risks they're putting themselves in. I think that having a checkbox to confirm that you're agreeing to the new TOU before creating an account or submitting a revision would be the most appropriate approach. Can we please start discussing suggestions instead? You're derailing the topic. --Michaeldsuarez 23:53, 19 September 2011 (UTC)

I'd agree that if the Foundation were to introduce rules that put unusual burdens onto volunteer goodfaith editors then we need to make sure that people are forewarned and have read them, whereas if the terms are a bunch of legalese that one would expect on this site then it is less important to make sure people have read the small print. I suggest that we need to resolve the ambiguities and get the next draft before we know whether or not the Foundation is doing something so outre that it needs to be brought to the attention of every editor. At an extreme it would be possible to code things so that the next time each user logged on they saw a screen that says The Wikimedia Foundation has changed the rules that run this site. Principal changes include: ?????? Click here to agree or Goodbye

If the principal changes are an extra paragraph of legalese about why vandalism and denial of service attacks are not allowed then I'm not convinced that we need to shout this from the rooftops. If the principal changes are you may no longer post negative information even if reliably sourced. Then yes we would need to make sure everyone knows what is going on, if as I suspect it is somewhere in between the two then when we know what the changes really are we need to decide how best to communicate them. WereSpielChequers 10:59, 21 September 2011 (UTC)

+1 to WereSpielChequers point. -Pete F 13:58, 21 September 2011 (UTC)

Michael, as far as I can tell, the user's actual liability under the new TOS is exactly the same as the user's actual liability under the old TOS. The only difference is that the new TOS tells the user what (most of) that liability is, whereas the old TOS assumed that everyone had a basic grasp of civil liability law.

So in liability terms, "what the user was agreeing to" is "exactly what the user agreed to yesterday, only spelled out in case you're not an expert". Do you think that a checkbox that says, "I agree to have the same civil and criminal liability I've had for the last five years, only this time it's spelled out in nearly five thousand words" is really useful?

Put another way: Can you identify a single civil or criminal liability that the new TOS imposes, that didn't silently exist under the old one? Did you think that since the old TOS failed to mention that child porn is a felony, that nobody who uploaded such images to Commons could go to jail over it? Did you think that since the old TOS didn't mention that you could be sued for libel on WMF projects, that you couldn't? Did you think that since the old TOS didn't mention the WMF's legal right to sue you for damages you inflict on them, that they somehow couldn't do that? WhatamIdoing 17:05, 21 September 2011 (UTC)

No, but I believe that we need to protect the vandal as much as we need to protect the user. If there's a checkbox and a potential vandal reads through the TOU and sees the danger he or she is putting him or herself in, then that potential vandal may second-guess him or herself and decide to not vandalize the article or create a hoax. The confident vandals will still vandalize the wiki, but at least we could dissuade the more timid vandals from putting themselves at risk. A checkbox would offer the vandal an opportunity to at least hesitate or at best change his or her mind. --Michaeldsuarez 17:20, 21 September 2011 (UTC)

So what do u think the actual policy says about Vandalism: Out of the [5], section: Access to and release of personally identifiable information, Point 5: "Where the user has been vandalizing articles or persistently behaving in a disruptive way, data may be released to a service provider, carrier, or other third-party entity to assist in the targeting of IP blocks, or to assist in the formulation of a complaint to relevant Internet Service Providers," (2008). I simply let the text speak for itself...noone is informed about that risk.--Angel54 5 18:31, 21 September 2011 (UTC)

Michael, I could support using it as an educational tool. Since basically nobody reads the terms, however, I believe it would be ineffective. WhatamIdoing 16:49, 22 September 2011 (UTC)

WhatamIdoing, I believe you are mistaken about "the user's actual liability under the new TOS is exactly the same as the user's actual liability under the old TOS.". I'm not a lawyer, but I have studied some of these issues. The new TOS contains provisions which impose severe new liability, as well as strips away defenses. For example, section 16, "Indemnity", it's not just the user's own costs, but states "you agree to indemnify ...". That is a severe obligation to cover WMF's expenses that is not present in the old TOS, and indeed, strikes me as so unbalanced that I'm tempted to raise a fuss over it. While the WMF could always have tried, having a supposed contractual obligation is a drastic change. Section 13, forcing California law, takes away any greater state law protections you may have, and well as trying to take away the lack of "personal jurisdiction" defense. Plus it imposes an arbitrary time limitation. There is no question in my mind that this new TOS is a "shout this from the rooftops" type of change. -- Seth Finkelstein 23:53, 21 September 2011 (UTC)

Seth, the fact is that if you impose costs on someone else, that someone else is capable of suing you to recover damages. This has been true in the US since before the current US constitution was written. Your actual liability is thus the same as it always was (so far as I can tell, and I'm also not a lawyer).

The defined time limit (which is the default for contract law) and the defined jurisdiction are changes, but they are not new forms of liability. WhatamIdoing 16:49, 22 September 2011 (UTC)

That someone else is "capable of suing" is not the same as a contractually agreed (supposedly) assumption of liability. Are we disagreeing over this? I can't see how a contract can be characterized as "the same" as a generic capability. After all, there's a reason for contractual allocation of liability. And the Wikimedia Foundation is attempting to have the editors bear the entire burden. Further, I would characterize being deprived of possible legal defenses as also new liability. Even if you wanted to dispute that phrasing, I think it should be inarguable that users are in a worse legal position. -- Seth Finkelstein 02:39, 23 September 2011 (UTC)

If you impose $1,000 of inappropriate costs on the WMF under the old TOU, you can (at their discretion) be forced to pay them for the damage you did. If you impose $1,000 inappropriate costs on the WMF under the new TOU, you can (at their discretion) be forced to pay them for the damage you did. It's $1,000 either way. What's the difference?

Are you saying that "I didn't contractually agree to liability that is imposed on me by statute" is a viable legal defense? WhatamIdoing 18:00, 23 September 2011 (UTC)

You're assuming the conclusion in the phrasing above. The difference is under the new TOS, the WMF can point to a indemnity clause to strongly help it win such a lawsuit, whereas before, it could not do so. Filing a lawsuit is no guarantee of winning. That's one reason for indemnity clauses in the first place, so that liability is clear and not (easily) avoidable. -- Seth Finkelstein 01:17, 24 September 2011 (UTC)

If the liability for your actions is imposed on you by statute, in the same way that if you toss a baseball through your neighbor's window, you have a liability imposed on you by statute, then the absence of a written agreement about this issue does nothing except possibly increasing the amount of time that both sides pay their attorneys in the course of you losing that lawsuit and having to pay up anyway. "I didn't agree to indemnify you against my use of Wikipedia to deliberately spread libel about my ex-spouse" holds about as much water as "I didn't agree to indemnify you against my baseball throwing".

If you can think of a situation in which a user imposes unfair costs on the WMF and you believe that the WMF ought to suck it up any pay those costs from our donations, then please give that example. WhatamIdoing 22:56, 24 September 2011 (UTC)

You're assuming conclusions again. If you want to presume the WMF will always be fair in deciding who to sue and what costs to collect, I think the "Wikipedia Art" case refutes that idea. Tedious necessary explanation of previous sentence: I did not say that the Wikimedia Foundation actually sued in that case, I said it refutes the idea, that the WMF always will be fair in legal actions. EFF, not me stated "Wikipedia Threatens Artists for Fair Use". Thus, applying to the present discussion, this is evidence they are capable of using an indemnity clause in an unfair manner. -- Seth Finkelstein 03:45, 25 September 2011 (UTC)

No, I'm not assuming conclusions. I'm asking for you to provide a specific (hypothetical) example of a specific class of problems: The class of problems that includes (1) an unfair cost being imposed on the WMF by a user that (2) you personally believe the WMF should suck up the costs and pay it out of donations rather than trying to recover from the person who created the problem.

I'm not saying that it is impossible for other situations to exist: the WMF, for example, doubtless feels required by trademark law to make at least a token protest against all uses that might be infringement, e.g., a website name that might be legitimately interpreted as "a website about artistic comments on Wikipedia" and might be equally legitimately interpreted as "a shortcut to en.wikipedia/wiki/Category:Art", even if the uses are likely to be ruled fair trade.

I am asking for you to decide whether there are any cases for legitimate recovery of expenses created by someone's bad behavior that you would prefer that the WMF used money from donors to pay for rather than money from the badly behaved person. WhatamIdoing 17:07, 25 September 2011 (UTC)

Once again, phrasing like "should suck up the costs and pay it out of donations" mean there will never an example agreed unfair. You've set up an unfalsifiable situation, where any hypothetical can be two-stepped between 1) unrealistic or 2) taking milk out the mouths of babies, err, Wikimedia Foundation. I believe if I had described the "Wikipedia Art" case before it happened - i.e. "Wikipedia Threatens Artists for Fair Use", I would have been told, no, no, the WMF would never do such a thing (perhaps with a little sneer - the busy WMF has far more important matters to attend to than spending donations in such a manner). Once it in fact does such a thing, it's then justified and trivialized - "a token protest". It's impossible to win against such a two-step. If you believe all "badly behaved person"[s] should give up as much legal defenses as possible and assume as much liability as possible vis-a-vis the Wikimedia Foundation, that's an understandable point of view. But let's not confuse such a moral stance with the fact that the new TOS goes in that direction versus the old TOS (i.e. you may think more liability/less defense is good, but we should be able to agree it's a big change). -- Seth Finkelstein 09:31, 26 September 2011 (UTC)

Just a few points: (1) We do have language on English Wikipedia above the edit summary that states: "By clicking the 'Save Page' button, you are agreeing to the Terms of Use ...." So people should have notice of the terms of use. (2) The present user agreement is basically only a licensing agreement. For reasons that I recently set out above (before the table of contents), I think there are reasons to evolve to a new version. One of the most important reasons is to give fair notice to editors about their responsibilities and the correct use of the site. (3) The discussion about the indemnity clause is interesting. Almost every terms of use contains one. But, as I have said, I'm in listening mode on that one. I appreciate the above conversation. Geoffbrigham 00:16, 1 October 2011 (UTC)

Thanks. --Michaeldsuarez 00:44, 1 October 2011 (UTC)

While I certainly don't argue than an indemnity clause is original here, I think it interacts in a particularly bad way (for editors) with Wikipedia and Wikimedia's status as volunteer-contributed material and its global prominence. Not only do volunteers have to bear their own risk in a very unfavorable setting, but now they are being mandated to contractually assume Wikimedia's risk. As this is the classic problem of a personal risk not being evident until it blows up in an unsuspecting person's face, emphasis on the problem beforehand seems reasonable. -- Seth Finkelstein 05:11, 2 October 2011 (UTC)

I am still hoping that you will give a concrete example of someone getting stuck with "Wikimedia's risk" and you think that's unfair.

So I've given the example of someone using Wikipedia to spread libel about an ex-spouse. The ex-spouse could sue not only the libel-spreader but also the WMF for permitting jerks to edit the website. The WMF would actually have no liability in the end, but they would incur the cost of responding to the lawsuit. The indemnity clause puts the jerk on notice that the WMF has the right to recover those direct costs from libelous jerks.

You've never responded to this example. Tell me: Do you think this is a reasonable response? Would you prefer that these costs were ultimately paid by the libelous jerk, or by our innocent donors?

Can you describe any plausible situation in which you believe the actual costs created by some user's violation of the TOS (NB that the indemnification clause only applies to actions that violate the TOS, not to normal use) really ought to be paid by donors instead of the violator? WhatamIdoing 16:13, 3 October 2011 (UTC)

In response to the query, the party of the second part repeats and re-iterates the original reply - "Once again, phrasing like "should suck up the costs and pay it out of donations" mean there will never an example agreed unfair. You've set up an unfalsifiable situation, where any hypothetical can be two-stepped between 1) unrealistic or 2) taking milk out the mouths of babies, err, Wikimedia Foundation. I believe if I had described the "Wikipedia Art" case before it happened - i.e. "Wikipedia Threatens Artists for Fair Use", I would have been told, no, no, the WMF would never do such a thing (perhaps with a little sneer - the busy WMF has far more important matters to attend to than spending donations in such a manner). Once it in fact does such a thing, it's then justified and trivialized - "a token protest". It's impossible to win against such a two-step. If you believe all "badly behaved person"[s] should give up as much legal defenses as possible and assume as much liability as possible vis-a-vis the Wikimedia Foundation, that's an understandable point of view. But let's not confuse such a moral stance with the fact that the new TOS goes in that direction versus the old TOS (i.e. you may think more liability/less defense is good, but we should be able to agree it's a big change)."

There is no "concrete example" that could not be two-stepped between not "plausible" and "jerks". We have reached an impasse on that aspect. If you deem it implausible that the WMF could act like jerks itself, I cannot convince you otherwise, and it would be a fool's errand to attempt to do so. But in terms of having common facts if not common opinions, we should be in agreement that the new TOS uses contract law to increase liability on users versus the old TOS (whether or not one believes that can be abused) -- Seth Finkelstein 04:58, 4 October 2011 (UTC)

I'd be happy to see you provide an example of someone (1) violating the TOS, (2) getting the WMF sued [or otherwise incurring a significant, non-optional expense] and (3) it's really the sort of thing that you think that person violating the agreement should not pay for. It's got to be plausible only in the sense that it has to meet the conditions laid out in the TOS itself and not involve alien creatures with death rays. This part of the TOS doesn't apply unless both of those first two conditions are met. (You have carefully read the actual sentences there, right?)

The Wikipedia Art battle doesn't meet the conditions laid out in the TOS itself, because one need never visit the website or agree to the TOS to violate its trademark. Trademark violations can be purely accidental, even. And furthermore, unlike people who are ignorant of trademark law, I would never have told you that complaint was implausible: I would have told you that at least a cease-and-desist letter was highly likely, because trademark law (unlike copyright law) requires trademark holders to prove that they are actively defending their trademarks. Producing strongly worded cease-and-desist letters is the cheapest and most efficient way to do this.

Not only that, I'm perfectly willing to believe that the WMF could act like jerks: Any organization could. The most plausible scenario is that the WMF already employs some jerks, and even if we happen to like the current folks, there's no guarantee that the next batch won't be terrible.

What I'm telling you is that, despite having a fairly creative mind, I've been unable to come up with any example that meets the first two conditions without it being blindingly obvious that the person causing the problem really ought to be responsible for the costs of cleaning up the problem. If you can, please let me know. If you can't, then perhaps your objection, which so far seems to be based primarily on fear and an implausibly expansive misunderstanding of the text, should be withdrawn. WhatamIdoing 16:49, 4 October 2011 (UTC)

I think there are many good reasons for keeping the indemnity provision, many of which are well expressed in this discussion. That said, I do hear the sentiment that this somehow creates too much of a divide between our user and the WMF. (Indeed, in the past, WMF has helped editors find counsel when their edits have been challenged.) So I say delete it (which I have) for now. If people feel strongly otherwise, we can reconsider. Geoffbrigham 15:04, 8 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Moonriddengirl 15:23, 8 October 2011 (UTC)

The TOU are for Office Actions.

Resolved.

Anything else is better covered by the policies of the various projects

If the TOU were there to remind editors and authors that they have a duty to comply with the law then the TOU should just say that. Putting in a long list of things that are against the law would be legal advice and would expose the WMF if there were any mistakes in that list.

However that is not, as I understand it, what TOU are for. TOU describe

1. what the users can expect the WMF to do with your contributions,
2. what the WMF expects from you
3. what WMF will/may do if you don't do as expected.

You do not need to consent to the TOU - they apply to you either way.

Social networking and blogging and photosharing sites provide a service to their users in return for making a profit by making them watch adds. Their TOU are there to describe this social contract - what you get, what you give. The WMF sites are different. They not here to provide a service to editors and authors and photographers. They are each here for a particular purpose - to provide a service and benefit to readers. Editors and authors contributions are to help us to achieve those particular purposes. The WMF should promise (in the TOU) to use those edits to help achieve their vision, particularly by making content available freely. The WMF should warn editors (in the TOU) that your contributions may be editted or discarded if it helps the vision. You may be banned if you are not contributing to the vision. In practice the basic requirement is

1. for people to cooperate, to collaborate, to work together
2. towards the goals of the particular project.

The TOU should confirm that the various projects each have their own policies, designed to implement the WMF TOU and that the WMF does not generally interfere directly in the operation of the projects except where the WMF decides such interference is needed to further the vision.

WMF intervention in a project should generally be an exceptional event. If the WMF TOU describe the terms under which such office actions happen then the TOU need to be written in very broad terms since they will only be used in exceptional circumstances which a list is unlikely to cover. — The preceding unsigned comment was added by Filceolaire (talk)

Editted to make it clearer what I meant--Filceolaire 10:20, 22 September 2011 (UTC)

In your worry about the liability for mistakes in "a long list of things that are against the law", are you referring to the list in "4. Activities That You Agree to Refrain From"? That section doesn't say that these activities are illegal. Some of them are actually perfectly legal (e.g., posting false material). What is says is that these activities are prohibited by the WMF. There is no possible liability in saying that posting a hoax article is prohibited by the WMF. WhatamIdoing 16:56, 22 September 2011 (UTC)

I like some of the ideas/themes you set out above, which I want to consider incorporating in the next draft. The TOU does say that WMF action should happen "only rarely" (Sec. 10). But, as I have said above, I think that could be clearer. Geoffbrigham 01:30, 2 October 2011 (UTC)

As explained above, I have made edits emphasizing the prominance of community action as opposed to WMF action. Thanks for that feedback. Also, as explained above, the principal purpose of the list is for the information of new users and to provide tools to support community enforcement actions. Geoffbrigham 17:47, 8 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 20:48, 8 October 2011 (UTC)

Prohibited activities

Resolved.

Section 4 (or 5, someone should really fix the first header so that the toc doesn't look ridiculous) "Activities That You Agree to Refrain From" lists a number of potentially problematic points: "Prohibited activities include:"

• ..."threats". ("That admin threatened to block me if I keep fixing this article to the right version! That's against the terms of use so he should be banned!") Many actions can be seen as "threats" which are perfectly acceptable, and necessary.
• "stalking". ("That user admits to being a 'talk page stalker' right on his userpage!", "That patroller is following my contributions!", etc.) Again, very problematic.
• "spamming, or vandalism". I don't see what purpose could be served by having these in the terms of use. What constitutes these activities are up to the communities to decide, and dealing with these via blocks are also the responsibility of the community.
• "Using any information obtained from a Project website to harass, abuse, or harm another person". Useless, and debatably contradictory to Wikimedia values. We are to give information to users, however they wish to use the information.
• "Intentionally or knowingly posting false, inaccurate, misleading, defamatory, or libelous content." Other than the "libelous" bit, I think it's pretty clear why this is a bad line.
• "Infringing the privacy rights of others under the laws of the United States or your own country or jurisdiction". How is this Wikimedia's responsibility?
• "Linking to material that violates any provision of this Agreement or any applicable law or regulation" What?
• "Soliciting personal information from anyone under the age of 18". Wrong. Soliciting what could constitute "personal" information from minors is necessary. On Wiktionary, for example, users are frequently asked to post their knowledge of languages ("Babel boxes") on their user page, regardless of age. Other projects also find it useful to request information about users.
• "exploiting anyone under the age of 18 in a sexual, violent, or other manner". "Other manner"? Definitely a problem.
• "Posting or distributing ... viruses ... or other harmful content". "Harmful content" could be anything. It does seem to indicate that it refers to virus-like "harm", but it's not explicit.
• "Automated uses of the site that are abusive or disruptive of the Services and have not been approved by the Wikimedia Community". Unapproved bots are against the terms of service now? This should be up to the community.
• "Probing, scanning, or testing the vulnerability of any of our technical systems or networks without authorization". What is "authorization"? Is someone trying to secure a "technical system" by "scanning" it violating this term?
• "Accessing, tampering with, or using any of our non-public areas in our computer systems". Everyone with a user right does this regularly.
• "Transmitting chain mail, junk mail, or spam to other Users". "Spam" is what site notices are for. Also duplicating point 3.
• "Using the Services in a manner that is inconsistent with any and all applicable laws and regulations." See point 7.

In my opinion, this entire section should just be scrapped. --Yair rand 00:25, 23 September 2011 (UTC)

The purpose of this section is to give people fair warning that bad behavior can (and does) result in misbehaving users losing access to the site. It's more friendly to give them some notion of what's prohibited than to spring it on them later. WhatamIdoing 18:03, 23 September 2011 (UTC)

As far as I can see members are commenting quite critical @wahtamidoing. So why do u think these TOU are a good idea? I can see nothing but approval in general. U dont answer critical points - then point out why this is a good idea...--Angel54 5 23:38, 23 September 2011 (UTC)

I agree with Yari rand comments in general. Especially the clause:

>>Prohibited activities include: […] Intentionally or knowingly posting false, inaccurate, misleading, defamatory, or libelous content"

goes against the souvereignity of the single projects. Of course there can be very good reasons to post such content in an educational project. First of all, making a false statement falls under the freedom of speech. In any plural society, there is no en:Ministry of Truth, but there will be different opinions on any subject, and on what statement is false or correct; so you can't avoid "false" statements anyway.

To intentionally make up, and then discuss, objectively false, or otherwise wrong statements is common practice in any philosophical discourse, e.g. with the intention to find out methodically why a statement is false. Every school teacher discusses intentionally false, inaccurate or misleading statements with their students in order to start the student's minds working.

Of course the single projects must not be made a platform for defamations and libels, and the Foundation should support the projects against such attempts, at least for legal reasons. But this doesn't justify a general ban of false, inaccurate or misleading statements, --Rosenkohl 09:25, 29 September 2011 (UTC)

No, you're taking this too far. "To simplify this calculation, we assume a spherical, frictionless chicken" is not "false, inaccurate, or misleading content". Hypothetical examples are also not "false". Accurately reporting an error or false accusation made by someone else is not "false".

Furthermore, WMF projects are not exercises in free speech—freedom of speech means freedom from government interference, not a requirement that private organizations provide you with a platform to say whatever you want—nor are they (with the exception of Wikiversity and Wikibooks) appropriate places for people to engage in philosophical discourse.

However, even though this is not a free-speech forum, you are not prohibited from discussing false statements. You are prohibited making false statements—that is, you must not post lies and pretend they are true. We use an all-facts-and-circumstances method here: Imagine a classroom. The teacher asks little Mary what 2+2 is. Mary incorrectly answers "five". Posting "Mary said that 2+2=5" is not a false, inaccurate, or misleading statement (because Mary actually said that), and this is not prohibited, even though Mary's answer is false. However, posting only "2+2=5" is false and inaccurate, and it is rightfully prohibited. WhatamIdoing 16:17, 30 September 2011 (UTC)

As noted above, I am open to narrowing some of the prohibited activities, given the feedback I have heard to date. I can't say I agree on deleting the reference to false statements. The prohibited activity discussed above is limited to "intentionally" posting false content. I believe that is consistent with our mission to encourage accuracy in our free Projects. New users should know that they cannot vandalize our Projects with intentionally inaccurate statements - which, I submit, many don't know without an explicit statement to that effect. Geoffbrigham 01:41, 2 October 2011 (UTC)

People are invited to come work on Wikipedia to help build an encyclopedia. If you are not trying to do that then you are not welcome. That is the clear practice of en:WP and this is what the en:Wikipedia TOU for editors and authors need to say. Other WMF projects have each got their own objectives and need their own TOU. Personally I think a "for example" list of things not to do should be elsewhere, not in the TOU, and should be a series of links to existing policies and essays starting with a link to Don't be a dick. Be wary of trying to reinvent the wheel. The WMF TOU needs to make clear it's relationship with the projects; minimum requirements for projects (free-as-in-freedom content, making culture available, working cooperatively); how a project could be closed down (by the board after consultation); when/why office actions happen; when a user can appeal to the WMF board to reverse an action by a project.

and , by the way, Wikisource welcomes intentionally inaccurate statements (or "fiction" as it's called there) that fall within the terms of that project. See what happens if you write the TOU as if Wikipedia is the only WMF project. --Filceolaire 13:09, 2 October 2011 (UTC)

Fiction is neither "inaccurate" or "false". In fact, the primary strength of good fiction is its ability to communicate some truth about the human condition to its readers.

Additionally, there is a meaningful interpretation of "false" and "inaccurate" information for Wikisource: Wikisource refuses to falsely present fiction as being history, or to inaccurately label works by Hannah Foster as being works by George Orwell.

On your other point, I do not know that the community would actually welcome a clear description of the WMF's relationship to the projects. The relationship is very simple: The WMF owns and has both the legal right and the practical power to control everything on all WMF projects except:

1. the copyright to the content (which is irrevocably licensed in ways that permit the WMF to use it almost exactly as if the WMF owned that, too).

Note that the numbered list of what the WMF doesn't own and have the right to control is very short. Under normal circumstances, it delegates this work to the communities, but that is the WMF's voluntary and revocable choice. If they ever (lose their collective minds and) decide to stop doing that, then we're stuck with their decision.

As for things like the minimum requirements for projects, what might cause them to close, and what detailed procedures exist for dispute resolution, those answers are likely to change over time and thus aren't really proper subjects for this agreement. We don't want to be revising the agreement every time the WMF's financial picture changes, or the board slightly revises the project creation rules. WhatamIdoing 16:27, 3 October 2011 (UTC)

Geoffbrigham,

Wikimedia ist hosting very different kinds of educational projects, e.g. encyclopeadias (Wikipedia), source librarys (Wikisource), quote librarys (Wikiqoute), news sources (Wikinews) etc.

Of theses projects, to my knowledge only Wikinews is conducting own original research, and thus only the content of Wikinews can be labelled 'false' or 'true'. That is why Wikinews#Ensuring_accuracy_and_legality says:

>>The inclusion of original reports greatly expands the range of Wikimedia content for which the Wikimedia Foundation is potentially liable. The importance of news in informing public opinion also places on us an additional burden to, from the start, do our best to ensure the absolute accuracy of the content we publish.<<

So Wikinews is putting emphasis on accuracy, because Wikinews is hosting original research.

But other Wikimedia projects, e.g. the central project Wikipedia, don't do any original research and entirely should consist of claims made by reliable secondary sources. Wikipedia does not at all say whether this content ist true or false. Wikipedia is not doing anything else than reporting the state of the relevant public discourse from a neutral point of view.

So you can't read an encyclopaedic article in order to learn what is true or false, but only in order to learn what the hopefully reliable sources in the 'Literature' section of the article claim.

An encyclopaedia can't be disturbed by introducing false statements, since there is no actual encyclopaedic 'truth' and 'lie'. An encyclopaedia can be disturbed only by misrepresenting sources, or using unreliable sources, or using no source at all.

So it can't be the business of Wikimedia to tell new users how they should not act, but it falls into the range, responsibility and business of each single project. E.g. Wikipedia will tell their users, that they should use reliable sources and avoid original research, but on the other hand Wikinews will tell their users that they should strive for accurate original research, and other projects will tell their users other things to avoid.

So one main problem of the proposed policy

'Prohibited activities include: […] Intentionally or knowingly posting false, inaccurate, misleading, defamatory, or libelous content

I see is that it is insinuating that the content of Wikipedia could be true or credible in itself, which is a complete misunderstanding of what an encyclopaedia is about.

--Rosenkohl 13:40, 4 October 2011 (UTC)

So you won't mind if I post "Rosenkohl is a little Chinese girl" on every talk page at de.wiki? Wikipedia's sourcing policies apply only to the articles, not to the talk pages, and you say that the WMF should never object to me posting false information about you.

How about if I post that 2+2=5 in the article on Addition, or I change the article about Elvis Presley to say he is still alive? Is that not false information? I can give you sources that support both of these claims, so we can meet the sourcing requirement. Do you still believe that the WMF should never object to posting such false information? WhatamIdoing 16:26, 4 October 2011 (UTC)

I believe that the addition of the words "knowingly or intentionally" requires an active intent to introduce false statements (which narrows the application of the prohibition). Projects are always free to establish a tougher standard. We could substitute a stronger word like "maliciously," but that may be taking it too far (e.g., "maliciously making a false statement"). We see daily attempts by people who try to vandalize our sites by introducing false statements, and I want to make clear to users, especially new ones, that this is not acceptable. I have removed the word "misleading" since, as others have pointed out to me, it is arguably hard to pin down. Geoffbrigham 18:05, 8 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 20:46, 8 October 2011 (UTC)

Resolutions of the Wikimedia Foundation Board of Trustees

Resolved.

First: I`m not a lawyer and my English isn`t very good.

Right now we have the situation that the German community doesn't support an image filter as described in board resolution controversal content.

Apart from this particular case, I think it is much better to discuss different points of view inside the projects and not everywhere else on the internet - for example on the blogosphere. IMHO the community should generally have the alternative to make critical statements on specific resolutions if neccesary. So I'm not very happy about this. --Kellerkind 16:39, 25 September 2011 (UTC)

As a member of the Board in discussion in Nuremberg revealed, this is an already decided case. Those content filters will be set into use. It doesnt matter, what users think. They had to apply earlier. The argument was, that there is the urge to expand wikipedia to India and other countries in the world, which users might be embarrassed with certain kinds of pics. And that filter will be of "free use". But first of all I would ask, who will be doing the filtering? Out of which NPOV will it be done? U see there are many questions concerning this subject, none has been answered up to now. Perhaps a statement from User:Frank_Schulenburg would help? He knows the WP-community in Germany and is responsible for the global education...I fear the same will roll down the line with these TOU. There is a discussion but in fact it is too late, the enactment has been done already.--Angel54 5 19:21, 29 September 2011 (UTC)

My point was not to run the next discussion about the image filter. My point was that there might be situations in which the community doesn't support a resolution from WMF. As I understand the new terms of use I have to accept every decision the board will make. Maybe this is not really a legal question but I think it has something to do how we would like to deal with conflicts. Regards, --Kellerkind 09:01, 30 September 2011 (UTC)

I'm not sure I understand the question? Philippe (WMF) 12:46, 30 September 2011 (UTC)

I'm not totally sure I do either. But one link between the Terms of Use and the edit filter is the big unanswered question as to how a category based filter would work. The only model we have that uses a category based system is Flickr, and Flickr obliges uploaders to categorise their images for Flikr's image filter, and allegedly those who don't do so or who do so with insufficient prudishness get blocked. So one question about the TOU review is whether one of the motives for it is to enable the Foundation to introduce an image filter by putting such extra burdens on editors and especially uploaders; Another question is whether it alters the balance of decision making between the Foundation and the community, and of course with EN WikiNews having just forked and so much discussion going on about other forks; Are these changes intended to make it more difficult for more parts of the community to fork? WereSpielChequers 15:14, 30 September 2011 (UTC)

Kellerkind, you are right: If the Board decrees something, then everyone must go along with it. You do not have to like their decision or say that you agree with it (in fact, you may say that you very strongly disagree with it, and you may try to change their minds), but ultimately you must comply with their decisions or leave their website. This is the same for every privately owned website, business, and home. If your neighbor says people wearing shoes may not enter her house, then your choices are (1) take off your shoes or (2) do not enter. There is no third option, no matter how silly you think this rule is, because you do not write the rules for someone else's home. WhatamIdoing 16:33, 30 September 2011 (UTC)

Could u simply stop talking, whatamidoing. U ARE NOT NEEDED HERE. And pull out those shoes and do not enter, thx.--Angel54 5 17:12, 30 September 2011 (UTC) For others I'll try to explain. There was a severe dissent concerning picture filtering in the German community. But: As far as I can see the decision was made (and Ting Chen revealed that) before the discussion even started. Means: this will be set in motion. Maybe this discussion about the TOU is of the same character, when the Board does the same here. People are talking here, but the decisions are already made.--Angel54 5 17:29, 30 September 2011 (UTC)

Angel, I'm going to ask that you moderate your tone. All views are welcome here, including ones that you don't particularly want to engage with. Whatamidoing has engaged in good faith and competently. You may ignore a user that you don't agree with, but you may not tell them that they are not needed here. That is out of keeping with our community values. Philippe (WMF) 19:36, 3 October 2011 (UTC)

I will, Philippe - but do know if I think that someone desparately seeks for misunderstandings between two languages and tries to misuse them in his/her manner, my temper will not be all that u wish for. Interpreting things (that posting of kellerkind was meant ironically) as a kind of agreement isnt the best style either. And to use those misunderstandings for own purposes - u get the picture?--Angel54 5 16:19, 5 October 2011 (UTC)

Dear whatamidoing, If the Board decrees something then yes the board employees have to go along with it and at least try and make it work. But volunteers like myself and the vast majority of the community don't just have the options of persuasion and forking. We also have the option of changing the board, three of whom are elected by the community directly and two indirectly via the chapters. This site is ours, it belongs to anyone and everyone who takes up the invitation that "anyone can edit" and who hasn't abused that invitation so badly that their fellows have ejected them. We may have entrusted a committee to make rules such as whether shoes may be worn indoors, but they are our committee and therefore those are our rules. Forking is a last resort for minorities who in the longterm can't accept the decisions of the board who the majority chose, not the next step for those who in the short term can't persuade the current board. WereSpielChequers 13:11, 1 October 2011 (UTC)

The TOU says now: "The Wikimedia Foundation Board of Trustees releases offical policies from time to time. You agree to abide by these policies, where pertinent." Sec. 11. So this is conditioned on the phrase "where pertinent." That may not be the best drafting. We could say for example: "You agree to abide by those policies which are mandatory with respect to your useage of the Wikimedia Projects." Geoffbrigham 01:51, 2 October 2011 (UTC)

WSC, it sounds like you don't have much experience with non-profits. The community can change approximately one-quarter of the Board's members each year, and controls only half the appointments. It takes a long time to change a policy that way—and in the meantime, you are absolutely required to follow the current policies. "I'm going to throw the bums out at the next election, and my crystal ball tells me that the one or two guys I'm going to vote for will change the policy" does not exempt you from complying with the Board's policies. WhatamIdoing 16:38, 3 October 2011 (UTC)

So, in response to the above discussion, I have substituted clearer language re board resolutions, specifically: "The Wikimedia Foundation Board of Trustees releases official policies from time to time. Some of these policies may be mandatory for a particular Project, and, when they are, you agree to abide by them as applicable." Geoffbrigham 18:18, 8 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 20:43, 8 October 2011 (UTC)

Make changes as issues are resolved rather than one big redraft a month

Resolved.

The way the community is used to working is that when we've agreed to make a change that change happens and that section of the talkpage debate can be marked resolved and subsequently archived.This has several advantages over a draft per month, not least that as fresh eyes are cast over the document they don't reraise issues only to be told that has been discussed and will change in two weeks time. I appreciate that isn't the traditional way to redraft legal documents, but it would be a more efficient way to work with the community, and it would make it easier to focus thought on outstanding issues. WereSpielChequers 12:07, 28 September 2011 (UTC)

OK, I will consider doing that with the next draft. My intention is to allow quite a bit more time than 30 days to review this draft. I don't want people to think we are rushing the review process. I also know that some have translated the TOU and need more time. What I expect to do, depending on schedules and other priorities, is to draft a second version for comment that incorporates much of the feedback that I have heard to date. Then, maybe with that new draft, we can put in the process that you describe. Does that make sense? Geoffbrigham 01:57, 2 October 2011 (UTC)

Geoff. We have had about half of that 30 days consultation process and the process is starting to get stuck in the mud with lots of suggestions, some contradictory, and less and less response. Please consider abandoning your previous intention and start following the procedure outlined by Chequers above.

• divide the TOU into different sections each dealing with a different topic
• put a few words into each section, outlining what will go there
• start by filling out the authors and editors TOU section (as this is the bit that seems most developed at the moment)
• Let people discuss that for a bit with suggestions for the structure and for the detailed bit.
• Every other day spend a little time addressing the comments from yesterday and updating the draft in accordance with the comments. Every other day add some new text to the TOU, expanding another section.

This is what wikipedians have found works. Traditional consultation does not. In practice, in most cases, it is a way to fool people into thinking they have a say while the drafters do whatever they wanted in the first place. I don't think fooling people is your objective so lets not use traditional consultation.--Filceolaire 07:26, 2 October 2011 (UTC)

OK - I appreciate the feedback on process. I believe that Philippe will get Maggie to help me out here. I propose that starting tomorrow, I start making changes to the agreement based on the feedback so far. I have spent the last couple of weeks (2-3 hours a day) reading the feedback and leaving comments. 2 hours a day is about the max I can commit to, so the changes will be incremental (which I hope people are OK with). Maggie will help ensure that the resolved issues are so marked and help better organize this than I have so far. I hope that works. Geoffbrigham 23:55, 3 October 2011 (UTC)

Thanks Geoff, I think you'll find that this can work well at focussing discussion on the things that are more difficult to resolve. If you get a backlog, or for some reason can't work through things in chronological order it is always acceptable on wiki to just add a note "I plan to answer this query by (date)". That stops people worrying that their point hasn't been answered while you resolve ones involving another section. WereSpielChequers 22:49, 7 October 2011 (UTC)

Hopefully, the approach we've adopted will be equally clear. As long as a section isn't marked resolved, it's still open. :) --Mdennis (WMF) 23:01, 7 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 20:45, 8 October 2011 (UTC)

Different types of data

Resolved.

We have several different types of data on the projects, and I think that this focusses excessively on the iceberg that the readers see. As accounts get more complex we have an increasing amount of information that editors would reasonably consider private. Email addresses and passwords at one end of the scale, but also watchlists, IP addresses and possibly in the future if it goes ahead, options and settings re the image filter. Then there are areas such as OTRS info, checkuser info, "deleted" edits and "oversighted" edits. Some of those things are OK on an anonymised basis or for authorised breaching experiments. As an admin I have no problem with the idea that the Developers may authorise one of their number to conduct a breaching experiment and see which admin passwords they can crack. Equally I'm happy that a few trusted users can have access to a list of unwatched articles, and my watchlist along with many others has been used to compile that. But I would regard it as a breach of my privacy if someone was to write a tool that located me by geocoding my watchlist and looking for patterns. I'm not sure that the TOU covers these nuances, but I would like to see something that promised best endeavours to keep certain info confidential. Since we don't actually delete stuff but merely suppress it and then have thousands of volunteers who have access to various parts of our "deleted" material we probably need something in the TOU to reflect that as well. WereSpielChequers 12:07, 28 September 2011 (UTC)

I doubt that it would be necessary to use your watchlist to determine your location. The pages you've publicly edited would probably be sufficient. WhatamIdoing 16:19, 28 September 2011 (UTC)

What I've publicly edited is indeed public and you can draw various conclusions about that. What I've chosen to watchlist is not necessarily the same as the list of pages I've read or edited. I was assuming that my watchlist was as confidential to me as my password or email address, though clearly you see things differently so perhaps my view is unusual, I wonder what others think? But I can't see anything here that makes that personal to me, and whilst we do have a Privacy policy, it doesn't seem to cover this issue, and with an outstanding query there going back three months I'm not sure if that page is intended to be currently valid. So I'd appreciate a response from the Foundation on this. WereSpielChequers 14:54, 30 September 2011 (UTC)

I see this a primarily an issue to be addressed in the Privacy Policy. We will likely take a new look at the privacy policy in the future, and, at that time, we can address the watchlist issue. Geoffbrigham 21:31, 3 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Moonriddengirl 19:52, 8 October 2011 (UTC)

Does this supersede, eliminate, or violate the Creative Commons/GFDL license?

Resolved.

The proposed Terms of Use prohibits "Using any information obtained from a Project website to harass, abuse, or harm another person;"

Now all the information on the site is currently distributed under a w:Creative Commons license with a "w:share-alike" restriction. As I understand it that means that it can't legally be distributed by anyone - including Wikipedia - with restrictions beyond the CC-by-SA license.

While I understand that CC-by-SA material can be incorporated into a larger copyrighted work and only the specific sections are under CC-by-SA, the point is, information taken from Wikipedia and used to harass would be taken directly from CC-by-SA contributed edits.

Unless somehow you're abandoning CC-by-SA, I think it requires you to abandon this Term of Use, or else you're violating the copyright on everything in Wikipedia. Wnt 18:38, 28 September 2011 (UTC)

Wnt, the Terms of Use are for users only. If you use it in an inappropriate manner, you Wiki account will be blocked. That doesn't involve the license at all but are behavioral reasons. Furthermore, the ability to make something CC-SA does not mean you have the right to host it or have the right to upload it without any effects. Otherwise, we couldn't revert and block vandals. Ottava Rima (talk) 21:21, 28 September 2011 (UTC)

I was assuming that the Terms of Use applied to any use of the website, i.e. accessing, reading, etc. (true, this is or should be unenforceable...) I assume that's why not just blocking is threatened, but legal action, investigation, reporting, etc. But admittedly it isn't really clear when a person becomes a User. Wnt 00:15, 29 September 2011 (UTC)

"Maintaining and providing for a vibrant Community of Users". User is an account. Your account would be banned if you violated those. That is what normally happens with a Terms of Service/Use. Ottava Rima (talk) 03:12, 29 September 2011 (UTC)

Maybe the language needs to be clarified, but by "information" the passage doesn't really mean the CC-licensed content of the projects. My understanding is that the sentence is targeting the kind of situation where, for example, a CheckUser misuses their access to private, personally identifiable information. Steven Walling (WMF) • talk 20:03, 29 September 2011 (UTC)

It might: Imagine that someone posts the current home address for a celebrity. A stalker happens to see it before it's suppressed and uses that information to attack the celebrity. The WMF does not authorize people to use the WMF's websites to obtain information for the purpose of committing a felony.

It's worth remembering that even talk pages and pages for reporting sockpuppets are released under CC-BY-SA. We have had problems with editors being harassed at home and at work based on information available outside the mainspace, and it is an activity that results in accounts being blocked.

This involves a distinction between "the information" and "the website". These are not the same. According to CC, you may use "the information" to do harm a person. According to the WMF, you may not use "their website" to harm a person. You would therefore (technically) have to find another, non-WMF source for "the information" if you wanted to use the CC-SA text to harm a person.

This distinction is usually difficult for editors to keep in mind, but it is a very real difference. "The website" is not the text and pictures in the non-deleted mainspace articles. It is the whole thing: the talk pages, the user accounts, the community forums, the software, the servers, the support systems, the processes, etc. The WMF owns the website, and the WMF says that you may not use their website to harm another person. WhatamIdoing 17:02, 30 September 2011 (UTC)

The text I quoted above, which as yet has not been changed, says "the information", not "the website". In any case, bear in mind that if this stood up to court scrutiny, the "share-alike" provision of CC would be a dead letter: we would be inundated with books, computer programs, and websites all of which distribute information under a CC license, subject to Terms of Use that limit that license to make them essentially proprietary. Wnt 03:53, 2 October 2011 (UTC)

I agree with Ottava. For example, you cannot use text to commit defamation, even if that text is under CC BY SA. That said, let me think about rewording this section a bit to be clearer. Geoffbrigham 21:39, 3 October 2011 (UTC)

I frankly don't think this violates the CC-SA license at all, but I'm hearing feedback to be judicious in what we restrict in the user agreement. This provision ("Using any information obtained from a Project website ...") is arguably outside the scope of the agreement and difficult to enforce. Projects can formulate their own broader prohibitions if there is a need. If people strongly disagree, I'm of course willing to reconsider and reinsert. Geoffbrigham 18:31, 8 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Moonriddengirl 19:52, 8 October 2011 (UTC)

I wish to speak to management

Resolved.

Can WhatamIdoing and Ottava please stop answering questions? Most users on this talk page are interesting in hearing what the WMF has to say, and every time a volunteer answers instead, that volunteer is providing an excuse for WMF employees not to answer. Due to WhatamIdoing's interference, there hasn't been any replies from the Foundation to my previous thread. In fact, glancing over the threads towards the bottom, it's been a long time since a WMF employee replied to anything. I want to hear from the people writing the new Terms of use. Their word will comfort me better than words from volunteers.

Words from volunteers aren't guarantees. Volunteers can't make promises on the Foundation's behalf. If the WMF makes a statement, we can hold them to their word and call them out if they break it. The community's power lies in its ability to hold the WMF to its word, and when people such as WhatamIdoing makes statements instead, then the community becomes powerless. I'm sure others feel the same way. --Michaeldsuarez 18:14, 29 September 2011 (UTC)

Me too, what I really find disgusting is that only (very confusing) liabilities of users are listed - what about the rights of users, this is a very onesided point of view in the TOU (there are authors giving their free time to make that whole thing work!). Full ack that members of the Foundation should take care of this site and not such desturbing voices, that are meant to destroy a discussion.--Angel54 5 18:26, 29 September 2011 (UTC) And btw.: The "right to leave" isnt even a right, its a "pressure".

Angel, the WMF is not actually giving users any rights. You do have some rights—but those rights are not given to you by the WMF. Those rights are given to you by the government, and those rights exist even if the WMF does not mention them.

You should look at the section immediately above this one, however, because the proposed Terms of Use would prohibit "Using any information obtained from a Project website to harass, abuse, or harm another person". It is possible (but not 100% certain) that this new requirement could force the de.wiki admin to take down the list of IP addresses that he says is associated with you. WhatamIdoing 16:48, 30 September 2011 (UTC)

http://meta.wikimedia.org/w/index.php?title=Talk:Terms_of_use&diff=2944970&oldid=2944889 – I'm glad to finally see WMF staff again. --Michaeldsuarez 23:29, 29 September 2011 (UTC)

The WMF staff has been posting off and on for weeks. Notice that not all of them have "WMF" in their usernames. I seriously doubt that replies from other people stop them from posting their own views at all, but I am absolutely certain that if any of us posted the wrong answer to such simple questions, they would promptly disagree. WhatamIdoing 16:48, 30 September 2011 (UTC)

I didn't notice Geoffbrigham's recent activity earlier, and he didn't reply to any of what was at the time prior to this thread's creation the bottom eight threads (the ones I glanced over). Also, why can't you let the professionals do their jobs? --Michaeldsuarez 17:10, 30 September 2011 (UTC)

My question is: there is the statement above the TOU: This page is currently a draft. Is that correct? Will u alter the text (using the details of this discussion eventually) or is all of this discussion "lost time". Then I would prefer to quit.--Angel54 5 18:48, 30 September 2011 (UTC)

Hi Angel54. Reading GeoffBrigham's comments on this talkpage this is clearly a draft. Some of us would much prefer it to be a wiki style rolling draft with changes made as they are agreed if not earlier. But despite appearances to the contrary it is a draft as he has already committed that the next version will incorporate various changes. I'm hoping that the things we can agree on will be resolved. I suspect that may leave us with some issues where some parts of the community are uncomfortable with the Foundation, but I'm hoping to at least limit that to areas where there is genuine conflict and to resolve any arguments that are simply down to mutual misunderstanding. And if issues emerge where I'm in the part of the community that doesn't want something in the TOU then I'm hoping to try and persuade the Foundation to change their mind. WereSpielChequers 12:03, 1 October 2011 (UTC)

Hi folks. I have been scheduling about 2-3 hours a day to respond to comments for the past couple of weeks. It is important to me to hear all the views, and I hope you are finding my comments helpful. I know your feedback has been invaluable. I'm definitely hearing the need for the wiki style rolling draft. I'm discussing with some at WMF on how to make that work and hope to get back to you shortly on that. Please be assured this is only a draft, and, as I have said above, I will be making a number of changes based on the feedback.Geoffbrigham 21:46, 3 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Moonriddengirl 19:50, 8 October 2011 (UTC)

Paragraph 2.1

Resolved.

Is the language correct there ? there are a couple things you should be aware of when considering our relationship to you or should it be there are a couple of things you should be aware of when considering our relationship to you ?

You're right with this correction. Geoffbrigham 21:48, 3 October 2011 (UTC)

I otherwise agree with WereSpielChequers. I noted a bunch of things in the text, then found them already covered in the discussion page. Many modifications have already been agreed upon but not implemented. Could we get a brand new updated text to review ? :)

(accordingly, I was bold and made a small modification to the text :))

Anthere

Thanks for adding the link to Announce-l. :) Steven Walling (WMF) • talk 17:19, 30 September 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Moonriddengirl 19:48, 8 October 2011 (UTC)

Time to move on

Resolved.

I think from the discussion above you can see there is some disquiet. Can I suggest that you start again with a completely new draft. Start with the headings/arrangement. My suggestion for the headings arrangement is above.

Once you have a general structure or outline put it up here. Edit as we watch and comment. Respond to comments even if the response is "Done" or "That goes in the next bit".

Carry on till it's finished.

I know lawyers don't usually work that way but can we give it a try? Please? --Filceolaire 20:40, 30 September 2011 (UTC)

Yep. Hearing that feedback loud and clear. Consulting with some on how best to do it. There is some feedback like "make it shorter" where this is not so easy. I was thinking of doing a new draft incorporating the feedback and shortening this version (which can't been done overnight) and then doing the above. I hope to get back to you on that shortly. Geoffbrigham 21:52, 3 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Moonriddengirl 19:43, 8 October 2011 (UTC)

Immunity issues, plans for enforcement, sensitity to potential abuses

Resolved.

Crossed from Foundation-l:

The previous terms contained essentially no behavioral prohibitions. I'm not sure if this was out of concern for Section 230 status, the independence of projects wrt policy making, or some other reason, but this new set of terms is a huge departure. It prohibits a broad range of unwanted activity, which raises the question: how does the WMF intend to enforce it? Would enforcing these terms threaten its immunity as a service provider? If the terms are not consistently enforced, doesn't that present its own set of liability concerns?

All good questions. Actually our present user agreement is atypical since it is limited to content licensing issues. The proposed user agreement addresses issues that other web-based hosting companies more typically set out in their agreements. There is nothing that negatively impacts on Section 230 status; we are fine with that status under either agreement. Enforcement will stay with the Community (see Section 10 ("Typically, isolated violations of Project policy and other similar issues will be dealt with by the Wikimedia Community, and will not require our intervention.")); "although it is only rarely the case" (Section 10), WMF may enforce as needed (as it does today for certain issues, e.g., DMCA takedown, illegal content takedown, etc.). Hosting "immunity" is not affected: We are not required to police our site (and indeed we do not). We accordingly are not required to penalize every violation. That does not prevent us from prohibiting unwanted or illegal behavior. Importantly, the user agreement specifically recognizes the authority of community-written policies. See Section 10, last paragraph & Section 11. Hope this answers your questions. Thanks. Geoffbrigham 00:04, 21 September 2011 (UTC)

I'd also like to see some exceptions to the indemnity terms. The way I read it, an editor could violate a law that itself contradicts international human rights norms, and if the WMF incurred any joint liability as a result, the indemnification attempts to transfer that liability to the editor. I can see unintended consequences coming from this; even if as a practical matter the WMF can make a case-by-case decision, departing from the terms - where the terms allow no flexibility - presents its own problems. If for no other reason, stating a human rights exception to the terms would make clear Wikimedia's intention to be a good corporate citizen (a fact that is otherwise just implied by the folksy writing style.) Nathan ^T 23:36, 8 September 2011 (UTC)

Interesting idea. I can see us doing that. Thanks for the idea. Geoffbrigham 00:04, 21 September 2011 (UTC)

A TOS that prohibits certain actions and permits projects to take a range of actions against those who violate the TOS is actually more supportive of the ability of our communities to establish behavioural policies and enforce them adequately than is one that doesn't mention behaviour at all. There is no positive requirement that those behavioural standards must be upheld by maximum sanction at every turn within the proposed TOS; the appropriate analogy would be that police officers are not obliged to make an arrest every time they observe a violation of a law, but are permitted some degree of discretion. In many of our communities, these discretionary actions could range from someone having a personal discussion with the user through formal warnings, a short-term block, a long-term block or ban, or some other user-specific restriction, dependent on the exact nature of the violation and the response of the individual. Most projects don't ban people at the first copyright violation; they work to educate the user, or to otherwise change the behaviour first. Risker 03:34, 9 September 2011 (UTC)

Regarding "how does the WMF intend to enforce it?" - very selectively, I fear. I don't think this is a liability issue, but more a fairness one. There's already many problems with "discretion", and this strikes me as likely to make those problems worse. -- Seth Finkelstein 07:28, 9 September 2011 (UTC)

As set out in the draft (Section 10), the Community will be primarily concerned with enforcement, not WMF. As I see it, WMF would get involved only rarely, as it does today: WMF would only ban "an especially problematic User because of significant Project disturbance or dangerous behavior." Section 10. I believe that high standard would help militate against selective enforcement. Geoffbrigham 00:04, 21 September 2011 (UTC)

The old "TOS" had no mention of indemnifying anyone. I am curious: how many users do you think "got away with" not paying Wikimedia an indemnity in the past? More to the point, I can very easily picture a 20/20 news report: They call it an encyclopedia that anyone can edit... "Be bold", they said, "don't worry if you make a mistake, your edit can be undone". Tonight we'll be talking to parents who found out the hard way just how expensive a free encyclopedia can be. And we'll talk to experts who advise what your school can do to protect your children and itself from Wikipedia... Wnt 21:14, 10 September 2011 (UTC)

Well put. I see the perception issue (though that is not our intent). I will be interested in the feedback on this provision and I'm very much in listening mode on this one. If it is not the right thing to do now, we shouldn't do it. Geoffbrigham 00:04, 21 September 2011 (UTC)

After hearing the community on this, I am deleting the indemnity clause. Supporting our community is critical, so let's leave it out for now. Appreciate the above discussion, which I found quite helpful. Geoffbrigham 17:54, 9 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. --Mdennis (WMF) 20:30, 9 October 2011 (UTC)

What is missing from the TOUs?

I simply would like a "wish list" (perhaps formulating a new section within) from community members concerning the TOU - not a critique of whats given in this draft. Then the Board could decide, which of those wishes are acceptable (to get approval within the TOU) and which are not. Lets think about, what we are missing first. To try to reformulate those terms should be the second step out of my point of view. Means to make the TOU more bearable for users - if then will be decided that everyone logging in has to accept those TOU through pushing a button or sth. else, that could be the third step. Would be my proposal, werespielchequers...--Angel54 5 13:39, 1 October 2011 (UTC)

Any page has to start with a first draft of some sort, if there are things that you want to change or add then I'd suggest checking to see if there is already a thread on that bit and join in or start a new one as I did here. One very difficult thing in a complex discussion like this is how do you keep each thread on topic, and how do you avoid having multiple threads about the same topic. Either can be a problem. So if you don't mind I'll split this off as a thread about what else is missing from the TOUs, that way we can leave the thread on dispute resolution to focus on what happens if the Foundation wants something in the TOUs that doesn't get consensus here. This thread can focus on your excellent question of what is missing. WereSpielChequers 18:28, 1 October 2011 (UTC)

See the section I started above - Rearrange in a more logical manner. The TOU needs to be broken into separate sections as I described there. The main missing thing is the readers TOU (= all rights under copyright plus the extra right to link and to print) and the Projects TOU (since the projects are the Foundations main direct customers).--Filceolaire 21:45, 1 October 2011 (UTC)

Ok, so I begged a member of German WP to create a wishlist concerning the TOU. Im trying to publish here within a week or so, what is missing.--Angel54 5 00:23, 2 October 2011 (UTC)

I like this idea. Thanks. Geoffbrigham 21:59, 3 October 2011 (UTC)

Vision statement

If the terms of use are intended as a legal agreement between the Wikimedia Foundation inc. and a single user, I don't see that a "visions" or other strategys or beliefs of one or the other of these two partners would belong to the page. The vision statement on top seems to disturb the neutrality of the terms of use and should be removed, --Rosenkohl 09:24, 6 October 2011 (UTC)

You do realize the current terms of use include the vision statement, right? Steven Walling (WMF) • talk 23:21, 6 October 2011 (UTC)

No, I don't realize the vision statement. The Wikimedia Foundation may imagine a world in which every single human being can freely share in the sum of all knowledge if they wish to, but I don't imagine this. It is the commitment of the Wikimedia Foundation, not mine. Terms of use are a legal agreement between two equal partners, of limited range and duration. It is not a marriage or something which would need a prayer or an oath. User who agree with the terms of use do without putting the terms of use under a certain prayer of the faith they may believe in, or under a slogan of their political party, their family motto etc, --Rosenkohl 10:42, 7 October 2011 (UTC)

I'm sorry, but I doubt we're going to remove it. Steven Walling (WMF) • talk 21:12, 7 October 2011 (UTC)

It does introduce a new user to our community, and indeed it does appear in the current terms of use. Geoffbrigham 18:49, 8 October 2011 (UTC)

Terms of use#16. Indemnity: You don't mean to nullify the Creative Commons terms, do you ?

Please add language making sure that as a licensee of a licensing agreement provided by text and other media under the terms of the Creative Commons, the Wikimedia Foundation SHALL NEVER use the "Indemnity" clause against any text and other media contributor, where Creative Commons 3.0 article 5, and similar terms in other licenses, apply (unless otherwise mutually agreed to by the parties in writing, licensor offers the work as-is and makes no representations or warranties of any kind concerning the work, express, implied, statutory or otherwise, including, without limitation, warranties of title, merchantibility, fitness for a particular purpose, noninfringement, or the absence of latent or other defects, accuracy, or the presence of absence of errors, whether or not discoverable.).

Teofilo 12:48, 6 October 2011 (UTC)

You are misunderstanding the interplay between these sections. The section of the CC license you quote disclaims warranties; such disclaimers have limited applicability and scope, and can't be used to avoid liability arising in other ways. Additionally, and obviously, nothing in the disclaimer allows the contributor to violate the terms of service agreement, and the indemnity clause applies to such violations. Nathan ^T 13:33, 6 October 2011 (UTC)

The interplay between the Creative Commons (or other licences) terms and those terms is all but unclear. If the purpose of this upgrade is to make things clear, let's add the language that shall make things more clear. Let's take an example. If a text contributor writes that medicine A can cure illness B, and this turns out to be wrong, and as a consequence, the Wikimedia Foundation loses money, shall the Wikimedia Foundation seek compensation from that text contributor ? Teofilo 13:45, 6 October 2011 (UTC)

The TOS bars anyone from "Knowingly posting content that constitutes libel or content that is otherwise false, inaccurate, misleading, or defamatory;". So if you knowingly made the above false statement, then that is a ToS violation for which you would be held responsible. Otherwise, the answer is no. Nathan ^T 13:50, 6 October 2011 (UTC)

You are quoting the draft TOS which is, at present, unapproved. The present TOS do not include the sentence you are quoting. The example I took with the medicine was not including the "knowingly" adverb. Let's imagine someone copies information form an old medicine book in good faith, and this information turns out to be outdated. Teofilo 14:03, 6 October 2011 (UTC)

That's because this is the talk page of the draft ToS, and a discussion about the proposed indemnity clause (which is part of the draft ToS).Nathan ^T 14:06, 6 October 2011 (UTC)

Do you understand that there is a tremendous change between the old user-friendly TOS, and the make-user-liable draft TOS ? I think the Terms of use#16. Indemnity clause should include wording such as "The above shall not be construed as constituting an agreement limiting the full application of the terms of Creative Commons 3.0 article 5 ("Representations, Warranties and Disclaimer") and similar clauses in other license agreements". Teofilo 14:17, 6 October 2011 (UTC)

There's no conflict and no reason to state the obvious. "This agreement shall not be construed to deny that the sky is blue, or that the Sun rises in the East." Nathan ^T 14:23, 6 October 2011 (UTC)

The Creative Commons 3.0 article 5 says that you are not liable for "errors" and the TOS says that you are liable for "inaccurate". It is an outright contradiction between the two. Teofilo 14:35, 6 October 2011 (UTC)

You're misreading both sets of language. In the TOS, it says "knowingly posting content ... that is ... false, inaccurate..." In the license, it does not "[say] that you are not liable for "errors"" -- it disclaims implied or express warranties of accuracy, etc., which is legal language that does not (and cannot) disclaim general liability. Nathan ^T 14:39, 6 October 2011 (UTC)

The draft TOS sentence can be parsed as [Knowingly posting content that constitutes libel] or [content that is otherwise (otherwise means knowingly or not knowingly) false, inaccurate, misleading, or defamatory]. Teofilo 14:47, 6 October 2011 (UTC)

Only if you prefer to ignore the plain, clear language of the sentence and construe it in such a way that is obviously at odds with both its intended meaning and its normal meaning in the English language. Nathan ^T 14:50, 6 October 2011 (UTC)

The article 5 of Creative Commons 3.0 contains "unless otherwise mutually agreed", so it is only natural to clarify whether the draft TOS constitutes the sort of mutual agreement that nullifies that article. The "you are responsible for your own actions" language in Terms of use#16. Indemnity does not make any difference whether those actions are made knowing the consequences in advance or not knowing the consequences in advance. The purpose of Creative Commons article 5 is to ensure that users "are not responsible for" a number of things. There is a total contradiction between the Creative Commons terms and the draft TOS terms, unless you construe those as meaning that the nullification of the Creative Commons terms has been agreed. Teofilo 15:04, 6 October 2011 (UTC)

You're just simply wrong, because you don't understand what it means to disclaim warranties or how liability works. I'm going to decline to explain it to you in any further detail, perhaps someone else will adopt that task. Nathan ^T 15:06, 6 October 2011 (UTC)

If terms of use are written in such a way that the user doesn't understand how his liability works, then it is unconscionable. Teofilo 15:17, 6 October 2011 (UTC)

How exactly do you think these two interact, because as far as I see they don't. Please give a specific example of a situation that you think might change if your proposed amendment were included. Because with Teofilo I do think you see a connection where none exists. - Andre Engels 06:47, 7 October 2011 (UTC)

More specifically: The Creative Commons sentence clause does not defend you against claims of libel, because libelous text is not a broken guarantee to the reader, but a broken law. Regarding false information: Even if you would consider this an agreement as specified in the CC sentence, then still the agreement only is between you and the WMF, not with other users of the content. So it would only cause problems if the WMF itself would be to use the false information in a way that causes it damages. Even then, I don't think the ToU are explicit enough to be such an agreement - they are about the WMF in the role of provider of the means on which the content is published, not about the WMF as reader/user of the content. - Andre Engels 07:34, 7 October 2011 (UTC)

Right. Lets try and explain the difference here.

If you post lies and inaccurate information on your own website and license this under the CC-BY-SA license then you have not breached the terms of the CC-BY-SA license.

If someone else takes those lies and inaccurate information and prints out ten thousand copies and distributes them everywhere then they have not breached the CC-BY-SA license.

If a WP User takes that information and copies it onto wikipedia then they have not breached the CC-BY-SA license.

If WP User knew the information was false when they posted it to Wikipedia then they are in breach of the WP Terms of Use. It is possible to be in compliance with the CC-BY-SA and still be in breach of these TOU.

If someone is offended by the inaccurate information and launches court cases against you, against the someone else who published the ten thousand copies, against the WP User and against the WMF then each party will have slightly different defences to offer in court and the 'No warranties" clause in the CC-BY-SA license will come in here.

You will claim that the No Warranty clause means anyone reading your web site should have checked for themselves. If the court decides you knew the information was false then they may decide you still have some liability and that is likely to be related to the number of people who saw the information on your site.

The someone else who printed a thousand copies will claim he got the information from you and it's not his fault. You will point to the No Warranty clause and say the someone was reckless to reprint without checking and that the someone should be liable for any harm caused by those ten thousand copies that they printed and distributed.

The WMF will claim that under the DMCA they are not liable for content posted on their sites by WP User. The TOU clearly states WP User is not allowed to post lies and they removed the lies as soon as they knew about them.

WP User is in a similar position to the someone who printed out ten thousand copies and distributed them, except that lots more than ten thousand people saw his contribution.

Or maybe not. I Am Not A Lawyer. I might be wrong.--Filceolaire 09:39, 7 October 2011 (UTC)

I don't see a conflict with the CC BY SA for reasons stated above and elsewhere. I do note that, with respect to the indemnity provision, I have deleted it in response to earlier feedback above, here, and below. Geoffbrigham 19:36, 8 October 2011 (UTC)

Modifications to this Agreement: internationalization

Please add language explaining how the non-English communities may comment during the 30 day period. In my opinion, the 30 day period should start running only after translations of the draft have been completed in the languages of the major Wikimedia projects or the core languages as defined by Communications subcommittees/Trans/core langs. Teofilo 12:38, 6 October 2011 (UTC)

I think that's fair. It's not really a 30 day comment period if you can't read the proposed amendments. Steven Walling (WMF) • talk 23:21, 6 October 2011 (UTC)

I agree we can include some language. I will work on that. Geoffbrigham 13:06, 8 October 2011 (UTC)

I added the following: "If future revisions are substantial, we will provide an additional 30 days to allow for translations." Hopefully this addresses your concerns. Geoffbrigham 19:24, 8 October 2011 (UTC)

Who is 'we'

What the WMF does is not the same as what the WMF Projects do but I think that this distinction will not be obvious to all of the people reading this document. You say "We don't delete" but the reader knows someone is deleting. Read my draft Overview above and see how I tried to highlight this distinction. Should 'we' be changed to 'the WMF' in most places in this document? This is important because a lot of people will come here for answers won't find them because the answer they are looking for is in the projects, not here. --Filceolaire 21:48, 7 October 2011 (UTC)

I see the point. I made this clearer in the Overview, pursuant to your suggestion. But I can include it in other parts of the agreement to be clear. Will do that now. Geoffbrigham 19:56, 8 October 2011 (UTC)

Wrong timing, and probably a bad idea as a whole

Please refrain from projects like this one for at least a few months after the filter resolution referendum quagmire has been settled. One controversial issue at a time coming from the foundation is enough. Shelf it until early 2012. We did fine without any detailed TOS for ten years, we can wait for half a year more.

And as I have lost quite some faith into the Foundation over the filter mess, I reply to this new disaster even though I would like to see it postponed: The new parts of this are is standard boilerplate legalese TOS. They do not accommodate for specifics of Wiki[p/m]edia in any way. That's not how we work. All the detailed nonsense in #4 could be removed if the TOS would state that the purpose of each project can be enforced, content that is not compatible can be removed and behavior consistently not constructive to this purpose can result in a ban. That's it. As none of the WMF's projects are about solicitation for gambling or trafficking in obscene content, this boilerplate stuff would automagically be superfluous. WMF does not run a social network, does not have general purpose discussion boards, but all projects follow certain, well defined goals. We don't need the TOS of a social network or a general purpose discussion board. --h-stt !? 14:38, 12 September 2011 (UTC)

Same goes for me. Close one topic then open the other. The first run was quite a disaster and you really should take your time to learn from it. Now is a good opportunity to inform the community what is about to change and most importantly for what reasons, in as most languages as possible. (Who can agree with rules he can't read? I'm not talking about myself, but maybe you if it was written in German) --Niabot 16:48, 12 September 2011 (UTC)

I'm actually quite sympathetic to what I hope the Foundation is really trying to achieve on the image filter issue, as long as it enables Moslems to choose not to see cartoons of Mohamed and anyone else to choose not to see whatever types of images they'd like to avoid. But I'd agree that the way the Foundation has treated the community over the image filter issue has annoyed a lot of people, and when you also consider the recent chapter funding arguments, now is probably not a good time for the Foundation to be conducting further top down change. Instead I would suggest that the Foundation should be trying to re-engage with the community and maybe put more focus on fulfilling some of the requests coming from the community. WereSpielChequers 08:18, 14 September 2011 (UTC)

I appreciate the comments and hear your frustration. I'm not sure I have a response that you will find satisfying, but here are some thoughts. For the terms of use, I feel we should take our time reviewing and discussing (in both English and non-English communities). I want to post for at least 30 days (and probably more) to ensure we get the full feedback from the Community, and then I want to repost a draft that takes into account that feedback. I think it is important to be flexible on modifying, deleting, and amending the content based on the Community needs as expressed by the Community (e.g., reference to gambling). I have no doubt that we did not get everything right in the first draft, and frankly I'm now relying on the Community to guide us to a second draft. I just hope it feels less like a top down change after this process. Geoffbrigham 21:17, 22 September 2011 (UTC)

The whole list in #4 should be replaced by a general description, along my words above. There is no need to duplicate US laws and their detailed wordings, when and if WMF refers to the purposes of their projects and declares that those purposes can be enforced. The laws quoted with their individual stipulations are broad in their application and need to cover all kind of media including general purpose media. That's not us. WMF does not run any general purpose websites, all projects have a defined purpose. And from a enforcement point of view: TOS need to be vague, because that makes enforcement much easier and successful legal challenges impossible. So the more details you write into the TOS, the more loopholes for determined trolls you create.

Finally: "Linking to material that violates any provision of this Agreement or any applicable law or regulation;" is unacceptable. Any encyclopedic project need to cite and refer to content that is or has been deemed illegal in one or the other jurisdictions. rgds --h-stt !? 11:13, 23 September 2011 (UTC)

I have addressed the above feedback in more detail in other sections. In short, I appreciate the suggestion on process which we are now implementing. I hear the point on Section 4, but, as I explain in detail elsewhere, I do believe we need to include some direction to new users. I have rewritten the "linking" restriction, which I believe addresses your concern in part. Geoffbrigham 15:20, 7 October 2011 (UTC)

Thank you for the much better arraignment of the bullet points under header 4 and the vast improvement regarding "linking to illegal content". I'm still not convinced, that those detailed aspects should be included, as they open too much leeway to a determined troll who will challenge everything. I consider a broad authorization to ban everyone who consistently violates the purpose of the given project to be preferable over your approach. I know your's is the standard method but Wikimedia is very non-standard ... --h-stt !? 17:59, 7 October 2011 (UTC)

Moving forward

Hi. :) Those of you watching this page may have noticed that Geoff is beginning to implement some of the suggestions that have come out of these conversations in the document itself. In order to clarify which sections have been finished, I am planning to note what has been resolved. If you do not agree that the question has been resolved, please let me know. There are some challenges to coordinating this, given that my desk is several hundred miles removed from Geoff's and Geoff notes that it may take some time for him to review and implement all suggestions received so far, but we'll try to make it as orderly and obvious as we can. --Mdennis (WMF) 19:41, 4 October 2011 (UTC)

global ban policy

The draft refer to a Global Ban Policy, which I have now created as a redirect to Global blocks and bans, which is still in draft status. I dont think it is a good idea for the terms of use to refer to a policy which doesnt currently exist as a policy. John Vandenberg 03:34, 10 September 2011 (UTC)

I agree with John, and I'd go so far as to say that including this by reference is a bad idea because the policy could be changed more easily and frequently than the main section of the terms of use, so the terms of use shouldn't refer to the global ban policy as if it's included by reference in the terms of use. Pine 11:33, 11 September 2011 (UTC)

The terms also refer to the countless local policies and guidelines which could change at any moment, so that's not really an issue. A link to a policy detailing how one may be globally banned is required because the terms specifically call out the right to revoke someone's access for specific kinds of terms violations (stalking etc.), but it does not say how that works. Since we didn't want to create a full banning policy within the terms that could not easily be changed by the community, we chose to refer to a separate global bans policy. The Foundation really wants the practice of banning anyone under the terms to continue to be in the hands of community members, so we'd prefer that the document spelling out any process for being banned is in a community-owned policy, not a legal document. Steven Walling (WMF) • talk 16:16, 11 September 2011 (UTC)

Then I suggest saying in the Terms of Use that the Global Ban Policy and other community policies which may be enforced under the Terms of Use are subject to a different change process. Pine 03:20, 12 September 2011 (UTC)

We can do that. Geoffbrigham 03:05, 22 September 2011 (UTC)

|}

So I have included the following language near the end of Section 10: All community policies, which may cover a single Project or all Projects (like the Global Ban Policy), may be modified by the relevant community according to its own procedures.

Steven tells me that he expects to post a draft of the Global Ban Policy in about 10 or so days. We will keep discussion open on the TOS to allow for evaluation of the Global Ban Policy and its interrelationship with the TOS. Geoffbrigham 22:37, 18 October 2011 (UTC)

Re arrange in a more logical manner please

This is should not be a welcome page. This is the terms of use page that people will only look at if they have an issue. Make it less chatty and much easier to navigate.

In theory at least, the terms of use is the first document that users should read, so I would tend to disagree about your comments re welcome page and its chatty nature. I do agree on making it easier to navigate. And I really like your discussion on the principles. I need to play with that idea a bit, but I definitely like it. Geoffbrigham 16:44, 23 September 2011 (UTC)

Start with the vision.

Next the principals behind the TOU - to help us to achieve the vision; especially via massive on line cooperation. Note that we may change the TOU at any time if this is necessary to help us achieve the vision.

TOU for Readers

• the right to read and all the normal rights under copyright law
• the right save or print out to read off line (plug our collections of articles formatted to read as books)

TOU for Authors and Editors

• The right to contribute to our projects subject to the various conditions that the projects may apply from time to time
• The obligation to licence your contributions in accordance to the licensing arrangements for that project (CC-BY-SA + GFDL for the Wikipedias, CC-BY for Wikinews, PD for a lot of WikiSource, various licenses for Commons)
• The duty to work together with other authors and editors to achieve the ends of the particular project in accordance with the standards and procedures of that project.
• The duty to ensure your contributions are legal (no copyright, trademark, libel, slander or other....) I would soften this with a suggestion that if in doubt they should ask but I guess a lawyer wouldn't want such language.

TOU for Projects

• Wikimedia hosts various projects each of which has it's own goals, agreed with Wikimedia and it's own internal procedures and standards for achieving those goals.
• All projects should share under free culture licenses.
• Decision making processes in Projects should be transparent
• Projects should be open to contributions from outside.
• The foundation has the right to close down a project (after consultation) if it feels it is not contributing to the vision (not achieving it's goals or even if it just feels that resources could more usefully be applied elsewhere).

TOU for Software projects

• Software development is a rather specialised project in that there is a larger element contributed by foundation permanent staff and paid contractors however the the TOU for Users and authors should be the similar at this level with more detailed requirements at the project level.
• Add a note that the foundation may from time to time contribute (in time, money or other resources) to other software projects if that might help the vision and such contributions may be under other license arrangements.

TOU for redistributors

• Redistribution rights are covered by the licenses which vary from project to project.
• You have the right to copy, print, alter, edit, use as detailed in the licenses (except for a few non-free materials (on certain projects only) which are clearly labelled as such on their details pages).
• Respect trademarks
• No warranties
• How to attribute
• How to license your version (for copyleft licensed materials)

I would suggest the TOU does not go into detailed lists of things people shouldn't do - that just invites Wikilawyering. Instead the site wide TOU should give us the right to ban people for "any action which doesn't further the vision". Leave the detail for elsewhere. Filceolaire 22:03, 12 September 2011 (UTC)

I believe the community would be horrified if you proposed banning people for "any action which doesn't further the vision". Typos don't "further the vision". Saying that you disagree with a policy doesn't "further the vision". Complaining about the WMF's image filter plans doesn't "further the vision". I'd far rather have a specific list of warnings than something so vague and subjective as ""any action which doesn't further the vision". WhatamIdoing 23:47, 12 September 2011 (UTC)

You are right. I should have said the TOU should give the foundation the right to 'Take any action they deem necessary to further the vision". Banning people for typos doesn't further the vision so they would not have the right to do that. Each project could then have it's own lists of specific prohibited actions if it wanted. Smaller projects could share a model list. Protection against arbitrary action could be by requiring such actions be approved by a qualified majority of the Board.

The ultimate protection against misconduct by the Foundation would be the right to fork and I think it would be a good idea to make the right to fork explicit in the TOU, including a duty to prepare database dumps etc and publish these at 'regular' intervals.--Filceolaire 21:32, 15 September 2011 (UTC)

I like this structure; I believe organizing the document in a way that addresses different use cases in different sections is well worth considering. -Pete F 17:47, 16 September 2011 (UTC)

I'm not convinced that the above regrouping under different TOS' will make the document more readable, especially given that the feedback has been to avoid overly complicating the document. I also think it may be difficult to obtain consensus on what constitutes a right, a duty, and a privilege, which I believe is more the role of the Project policies. If we really felt strongly about it, I guess we could include something like the below, but again I would prefer to leave it to Project policies.

Pursuant to the requirement of this agreement and Project policies:

As a reader:

• You may read all the content publicly available on all the Project websites. You may not have access to content deleted for legal or other concerns.
• Except as prohibited by copyright, you may save, print out, and read offline all content made publicly available on all Project websites. Further, you may share this with others as long as you abide by free licensing requirements.
• You may become a contributor, author or editor.

As a contributor, author, or editor:

• You may contribute to the Projects.
• You have a duty to work collaboratively with others to achieve the ends of the particular Project in accordance with the standards and procedures of that Project.
• You have a duty to license your original contributions under a free license as set out in this agreement.
• You have a duty to ensure your contributions comply with applicable law.'

Geoffbrigham 18:16, 7 October 2011 (UTC)

Geoff.

It is already complicated - a long screed of stuff with no way for readers to find the bit relevant to themselves. Adding some structure will help fix this. I am convinced of this and I feel strongly about it but this isn't a vote; it's about reasoned argument. Just read down the pages and for mark each paragraph as to whether it applies to readers, authors or republishers. It's a bit of a mess, jumping back and forth between these. The entire page needs to be rewritten from the users point of view instead of from a legal POV.

The TOU are meant to explain to our users what their rights, duties, and privileges are. If it is so complicated that we can't agree on this then what hope have the poor users. If we decide that this needs to be explained on another page then we must link to that page from here.

The free culture licenses used on all the WMF projects give readers rights in addition to the rights they have under copyright. They have every right allowed under copyright (including 'fair use' rights) and they have additional rights. Most of these additional rights relate to reusers but readers get the right to 'deep link' to pages, to save articles or print them out. The "Except where prohibited by copyright" words don't belong here or anywhere else on the WMF sites.

Why is the readers section all about what they can't do anyway. Start with what they can do. the prohibitions can be kept till the third paragraph of the readers TOU.

You haven't mentioned the TOU for Republishers and for Projects. As I understand it DMCA protection for the WMF depends on regulation of the projects being done by the projects, not by the WMF. I figure this means the TOU must have some words to confirm this arms length relationship exists and that our users need to refer to the project TOUs for further info. Is that right? This page must make it clear to people what is covered here and where to find the rest of the information they are looking for.--Filceolaire 21:22, 7 October 2011 (UTC)

DMCA applies to content that we host, which includes the content of contributors. It is not contingent on "regulation of the projects." That said, the community involvement in enforcing copyright violations reduces greatly the number of DMCA notices that we receive. Sorry, but it is not clear to me what additional information should be included. We are incorporating much more information about the DMCA now in the TOU than we do presently on the site. Geoffbrigham 05:06, 8 October 2011 (UTC)

Articles are not the extent of content on Projects. I am not sure we are in position to grant the rights to our readers to print personal copies of non-free images hosted on various Projects. As far as Project TOUs, I see that English Wikipedia is your home Project. Have you by any chance followed the "Terms of Use" link on that Project? It lands you here. The Wikimedia Foundation's "Terms of Use" are the English Wikipedia's "Terms of Use." For most Projects, I believe, there is no other TOU for them to refer to. --Mdennis (WMF) 23:13, 7 October 2011 (UTC)

If wikipedia has the right to create a page containing non free fair-use images then surely a user in the USA has the same right to print the page incorporating that image.

There are things in this TOU page which do not reflect how English Wikipedia actually works. It says "Generally we do not contribute, monitor, or delete content" and yet the members of en:WP spend most of their time contributing, monitoring and deleting content. Using this as the TOU for en:WP is misleading. Anyone coming here for information will be misled. Maybe drafting these TOUs is a job for the Roles Working party. At the very least we need a link to Wikipedia:Simplified ruleset from this page here so they know where to get the rest of the rules.

Geoff: Is there a legal requirement to distinguish what the WMF does from what en:WP (for instance) does? Is yes then will having separate TOU help to make that distinction clearer?--Filceolaire 00:47, 8 October 2011 (UTC)

There is a benefit - not legal requirement - to describe what is fact: WMF hosts content through the Wikimedia sites. I believe that the TOS makes that clear. Geoffbrigham 05:06, 8 October 2011 (UTC)

Fair use (or fair dealing) laws vary widely, country by country, and there is no guarantee that what a contributor may upload in accordance with policy in one country will be legal for downloading in another. Too, a picture may be fair use in an article, but not fair use if it is downloaded separated from that content and for other purposes. Remember that image pages are "content" just as much as articles are.

It's worth noting that this document identifies concretely who "we" are in the lead: "The Wikimedia Foundation, Inc. (“we” or “us”)". This distinguishes it from the community of volunteers. --Mdennis (WMF) 01:04, 8 October 2011 (UTC)

I am concerned that any attempt to "guarantee" that our readers can download, print, or read offline our content may be interpreted as a warranty that the project is free of copyright violations (it isn't). Additionally, as mentioned above, even if our NFC policy were perfect at ensuring that only works permitted under fair use are used on Wikipedia (which is impossible to determine), the language "all content" is far too strong (as it suggests non-free content can be downloaded and viewed/printed in isolation - it can't), and it suggests that it can be viewed/printed in countries other than the US. For argument's sake, you can imagine us using non-free content first published in China. A user downloads and prints it and China's monitoring regime detects it and holds them liable. Dcoetzee 01:34, 8 October 2011 (UTC)

Yes. I can see that however I would like to adjust these TOU to talk some more about what people can do. The reason I referred to the Print/Export menu is that this only does whole pages and includes copyright notices. Lots of wikipedias don't have any Fair Use stuff at all. Even on en: most pages don't have Fair Use stuff. We should be able to do something. --Filceolaire 12:33, 8 October 2011 (UTC)

Filceolaire, thanks for your thoughts and reflection on this. This is a tough one. I have thought long and hard about it, and, in the end, I find separating everything out quite challenging. This is difficult for me because I believe your concept is well thought out. The actual experience as a Wikimedian is that you are reading one moment, editing another. If we broke it out, we would have to repeat a number of concepts that are applicable to both readers and editors. We may have to distinguish between different Projects. Maybe I'm too close to this, but I think it is clear as to what applies to a reader and what applies to an editor. I'm reading feedback above and below showing disagreement about the "rights" or "privileges" of users and editors. If we can come to a consensus on what actually does constitute such privileges, we can include them. But, unless we get that consensus, I see leaving it to the Projects to figure it out. Of course, if a critical mass tells me that I'm wrong, I'm obligated to reconsider. Geoffbrigham 05:06, 8 October 2011 (UTC)

Is there really that much that would have to be repeated? Even where there is the version for readers is going to be much simpler than that for editors. We are not Facebook. The TOU are not here to protect our profits. The TOU are here to help our readers editors and republishers; tell them of all the things they can do that they can't do on other sites and tell them of the things the shouldn't do.

Wiki pages are good for coming to a consensus. Maybe it's time to unprotect the page so you can get some help here. If it is difficult then lets do it once here - a model TOU for a project - start with en:WP, it's the biggest. It's not appropriate to leave it to the every little project to have to start from scratch.--Filceolaire 12:33, 8 October 2011 (UTC)

legal catch-alls, US laws

I'm supposed to abide to whatever "laws of the United States"? Why should I agree to that, as long ad I do not live under US jurisdiction? Furthermore, I am supposed to abide to any and all "other proprietary right"? To "any and all applicable laws and regulations"?! What is the purpose of legal catch-alls like that? -- Seelefant 20:48, 5 October 2011 (UTC)

U.S. law applies in part because WMF servers are in the U.S. Our policy is that we cannot host anything that is in violation of U.S. law. I want to put users on fair notice that courts in other countries - for example where you view and edit text or where you live - may try to apply their laws. WMF may not agree with the courts, but they may try. (The legalities are a bit too complicated to explain in a user agreement since laws vary everywhere.) That said, I try to put people on general notice of this possibility. See for example the second paragraph of the "Overview" section: "Please be aware that you are legally responsible for all of your contributions ... under the laws of the United States and other applicable laws (which may include the laws where you live or where you view or edit content). Hope this answers your questions. Geoffbrigham 18:47, 8 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 11:09, 19 October 2011 (UTC)

Meaning of 'community' and 'service'

The lead says:

>>We welcome you (“you” or the “User”) to use our services and join the Wikimedia Community as a reader, editor, author, or contributor, but before you do, we ask that you please read and agree to the following Terms of Use (the “Agreement”).<<

• The terms of use are an agreement between Wikimedia Foundation Inc. and the single user. This means that when a single user is reading, editing, authoring, or contributing, the user is not necessarily "joining a Wikimedia community". A user who is only interested in parts of the provided content may not be interested at all in communicating with other users, or in participating in a community.
• Any user who is working on a project as an editor, author, or contributor is not at all 'using the services' of the Wikimedia Foundation! In fact, the exact opposite is true, the Wikimedia Foundation is using the services of the single 'user'. Of course the technical infrastructure is provided by the Wikimedia Foundation for the purpose of receiving this grant by the 'user'. However this is kind of stretch of what 'services' means; e.g. you don't say either that the fish is using the 'services' of the net provided by the fisherman. Any agreement on terms of use must clearly mention and emphasize the services provided by the user for the benefit of the Wikimedia Foundation.

--Rosenkohl 11:09, 6 October 2011 (UTC)

I see your points. I have redrafted to address your feedback. Geoffbrigham 18:57, 8 October 2011 (UTC)

I don't believe this complaint required any changes, although the current version is okay.

1. The WMF welcomes the user to join the community, even if the user declines the invitation to join. Saying that the user is welcome to join does not imply that the user must join.
2. The user is very much 'using the services', and the vast majority are doing nothing except using the services. This agreement applies to the 99% who only read the websites, not only the the tiny number who contribute—and so far as I can tell, zero editors contribute without 'using the services', whether you define 'services' as this agreement does (infrastructure) or in other terms (e.g., reading what other editors have written). WhatamIdoing 20:41, 9 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 11:08, 19 October 2011 (UTC)

Limitation of liability and "we"

I think it is not good that the definition of "we" that applies to the limitation of liability is The Wikimedia Foundation, Inc. (“we” or “us”). The limitation of liability should include the text contributors to Wikimedia projects, so that the text contributors are also protected by the limitation of liability.

If the message of the Wikimedia Foundations to complaint makers is "you can't sue US but you CAN sue THEM", I think the Wikimedia Foundation is highly aggressive and exploitative towards the text (and other media) contributors.

This is definitely not our intent. I'm in listening mode on the limitation of liability provision. I will do a little research on this re contributors. Geoffbrigham 19:20, 8 October 2011 (UTC)

Huh? Regarding "If the message of the Wikimedia Foundations to complaint makers is "you can't sue US but you CAN sue THEM" ...", my understanding is that's always been the position of the Wikimedia Foundation. But in this situation, that position has been a matter of their interpretation of law ("Section 230" is the jargon), not a terms-of-service contract. This is sometimes expressed nicely, and sometimes not so nicely, but it's been constant. And yes, it's something that raises exploitative issues in my view. -- Seth Finkelstein 22:29, 8 October 2011 (UTC)

As long as Wikipedia's terms of use were written in ambiguous wordings, those wordings could be interpreted as meaning that the text (and other media) contributors were also protected by the limitation of liability.

Removing ambiguous terms to replace them by more clear and restrictive terms can have dire consequences to text (and other media) contributors.

I strongly advocate to replace the "The Wikimedia Foundation, Inc. (“we” or “us”)" by something similar to commons:Commons:General_disclaimer#Responsibility, which protects "authors, contributors, sponsors, administrators, sysops".

The fact that the Wikimedia Foundation imposes its own terms of use on page footers is obscuring, and weakening the community-based disclaimers such as the Wikimedia Commons disclaimer mentioned above or en:Wikipedia:General disclaimer.

At present, Wikipedia's footer says "Text is available under the Creative Commons Attribution/Share-Alike License; additional terms may apply. See Terms of Use for details."

The Creative Commons license is a legal text which says "unless otherwise mutually agreed to by the parties in writing, licensor offers the work as-is and makes no representations or warranties of any kind concerning the work, express, implied, statutory or otherwise, including, without limitation, warranties of title, merchantibility, fitness for a particular purpose, noninfringement, or the absence of latent or other defects, accuracy, or the presence of absence of errors, whether or not discoverable.". My understanding is that the licensor is the text (or other media) contributor, but NOT THE WIKIMEDIA FOUNDATION. For that reason, I don't see how terms where "we" is "The Wikimedia Foundation, Inc." could "add" to terms provided by the licensor. The Wikimedia Foundation is a distributor of contents. At best, it is the first distributor in a number of cases. In no way is it a licensor.

As a distributor of texts contributed under the creative commons license, The Wikimedia Foundation must be loyal to the terms of the creative commons license which says "You may Distribute or Publicly Perform the Work only under the terms of this License" legal code. The Wikimedia Foundation is therefore NOT FREE to add its own terms in pursuit of its whims.

Teofilo 12:22, 6 October 2011 (UTC)

Thanks for these comments Teofilo. Above we had a previous discussion on the CC BY SA license. I don't see how we are imposing additional conditions on the distribution of content. Surely we can prohibit child pornography on our site even if the photo is licensed under CC BY SA 3.0. We are not placing limits on the use of content; we are simply prohibiting certain activities on the WMF site. Geoffbrigham 19:20, 8 October 2011 (UTC)

In terms of contributor liability, the options are either "You are responsible for your own actions: You are legally responsible for your edits and contributions on Wikimedia Projects, so for your own protection you should exercise caution and avoid contributing any content that may result in criminal or civil liability" or that contributors "will not be liable to you or to any other party for any" thing at all. It is nonsensical to simultaneously say "You are responsible for your own actions" and "You have no liability whatsoever for your own actions".

In practice, the WMF does not have the ability to exempt contributors from the liability imposed on the contributors by law. If the contributor violates someone else's copyright, the contributor can be sued (and lose). if the contributor uploads child porn, the contributor can be put in prison. If the contributor libels someone, the contributor can be sued (and lose). Nothing in the TOS changes these facts. What the TOS does here is tell people (as Seth explains) that if User:Example screws up, you should hold User:Example accountable for User:Example's own actions, not the WMF, which had nothing to do with it. WhatamIdoing 20:50, 9 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 11:08, 19 October 2011 (UTC)

Modifications to this Agreement: lawyer advice

I suggest that each time the Wikimedia Foundation changes the terms of use, it should pay the fees of an independent lawyer, whose role should be to write a report explaining to the users what the new terms of use will change for them. This independent lawyer should be someone different from the lawyers who currently provide legal advice to the Wikimedia Foundation, so that the point of view of the users is fully taken into account. Teofilo 13:36, 6 October 2011 (UTC)

Basically, it can't be done. The attorney's client is the person who pays him. If the community (or an individual) wants the view of a lawyer who is not beholden to the WMF, then the community (or an individual) must do the hiring. WhatamIdoing 20:52, 9 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 11:07, 19 October 2011 (UTC)

Could someone explain liability and indemnity?

The way I understand it, the two sections on liability and indemnity work like so:

(a) Suppose some rogue official at WMF decides, contrary to law, that an anime cartoon you uploaded is really "child pornography", and puts a big banner on your page under your name that you're banned as a child pornographer, calls up your local police department, and gets you in a situation where you spend $20,000 on legal bills. WMF's liability, no matter what, for such actions is capped at $100.

Hardly a realistic scenerio, but under TOS liability cap will depend on the local law. Geoffbrigham 15:37, 8 October 2011 (UTC)

(b) Suppose you post a blurb about somebody that is banned under a super-injunction in some other country. Their lawyers come after the WMF demanding the content be taken down, information shared, and claiming damages. Under these terms WMF is free to comply with "any governmental process" and serve you up on a silver platter, no questions asked, to any government in the world, but in the meanwhile they've consulted with a lawyer or two of their own about the motions and racked up $20,000 in legal fees getting opinions about the case. The indemnity means you can be billed for every penny.

In light of discussions in other sections (Confirmation/reconfirmation & Immunity issues), as well as your concerns, I'm deleting the indemnity provision in the original draft. See above discussion. BTW, the "government process" issue relates to our privacy policy (not TOS), which has been around for a while. The hypothetical also does not capture how we actually work. Geoffbrigham 15:37, 8 October 2011 (UTC)

Am I in any way mistaken about this? Wnt 12:41, 7 October 2011 (UTC)

I think that the difference between "can be billed" and "will be billed" is important here. If the WMF incurs costs because of a user's obviously and intentionally bad behavior (e.g., deliberate libel), then I think it entirely reasonable for that user to get billed for those costs. WhatamIdoing 21:09, 9 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 11:07, 19 October 2011 (UTC)

Defamatory but not libel

I don't know the legal definition, but wikt:Defamatory is defined as "damaging to one's reputation, especially if untrue". Which means something doesn't have to be untrue to be defamatory. Does this mean WMF is enforcing the rose-colored glasses school of BLP from the top down? For that matter, I suppose you can defame the dead, so we need something like "Adolf Hitler was a renowned German politician, known for his resolute position toward the Jews..." (Don't even start about Godwin's Law - if Mike Godwin were here we wouldn't have this idiotic ream of pap, I'm sure of it!) Wnt 13:16, 7 October 2011 (UTC)

I'm disappointed in the parenthetical on your comment. It seems terribly incivil when Geoff has been incredibly responsive to comments here and has spent a great deal of time working on this. His considered legal opinion is that these need reform, and any contributor deserves better than to be told that their work is an "idiotic ream of pap". Moderate your tone, please. Philippe (WMF) 23:22, 7 October 2011 (UTC)

Biting my tongue so my sense of humor does not get me into trouble, I'll just ask if it can it be clarified how this new TOS came to be proposed in the first place. That is, was it an initiative of the new legal counsel, or a Board directive, or from some other process, etc? (this is not a criticism, but more for interest in the evolution of the bureaucracy) -- Seth Finkelstein 23:51, 7 October 2011 (UTC)

A combination of factors. For example, there has been a call from some senior community members to help with issues such as harassment and roles. There are legal considerations and a concerns for transparency that have come from me and others. Geoffbrigham 05:51, 8 October 2011 (UTC)

The generally accepted solution to harassment is the requirement that users be nice to each other. That is what needs to be right at the top of the TOU for editors, right next to work towards the success of the project. All the other rules for editors are just elaborating on these two. Not vandalising the project isn't enough; We really do need to require of every editor that they be civil and polite. The other side of this coin is that they can expect to the same from others. Now where should this go in the TOU?--Filceolaire 12:46, 8 October 2011 (UTC)

The issue here is one of perspective: a legal document that is well-written from the point of view of a client may not be so enchanting from the point of view of an adversary. Before these Terms of Use, this was not an issue: I think I was like most Wikipedians in feeling like the WMF legal expertise was our legal representation, working tirelessly to defend us and our project from all the lunatics, crooks, and hired goons on the Internet. (who, to be fair, are also represented by expert lawyers in good standing with the bar) But with these Terms of Use, we're put on notice that we're at risk to be sued by the WMF, charged for their legal fees, our information can be freely given away to any government that has a vague yearning for it, and to top it off, the WMF will now start promulgating two dozen expansive policies that they never saw a need to make before, with more doubtless on the way. So the perspective has very abruptly changed where Wikipedia editors need to think of WMF as a legal adversary. And with that change in perspective, we're no longer really collaborating at all. I think you'll feel compelled to banner the new Terms of Use all over to make them count legally, and when you do, I don't think this reaction will be at all unusual. Wnt 13:06, 8 October 2011 (UTC)

Respectfully, I must disagree Wnt. I have set out the reasons for the TOS in detail at the beginning of this discussion. These reasons, I submit, are supportive of both the community and WMF. First, my world is admittedly a little perverse; I tend to see the .1% of bad conduct on the sites that most don't see. I see and manage the litigation filed against us which results in significant costs, which is then paid with donor money. I see the frequent threats by lawyers against the work of the community, such as almost daily demands to take down content, which my team and I spend numerous hours addressing (quite successfully). The privacy policy has always allowed disclosure to parties compelling us to disclose through court process (to which you refer), but internally we are preparing ways to oppose such requests when appropriate on free expression grounds. I hear a strong and increasingly loud voice in the community that we need a process to deal with real issues like vandalism and harassment (and my team and I have invested a significant amount of time on that issue). And, to be honest, there are many other things that we are doing in support of the community which I don't want to talk about publicly. Second, as our research shows, new users sometimes have a difficult time negotiating our sites because of the multiple policies. I believe we should clearly set out the roles and responsibilities of new editors, which the proposed TOS does (and our present TOS does not). It is only fair to our new members in the community. Third, we take seriously our obligation to the community to keep the site running, and the TOS has provisions that support us legally on that (as discussed above). Finally, this is only a draft, which we are sharing with the community, reading the feedback closely, incorporating substantive changes, and not rushing anyone. I have made changes already which I may not fully support as a lawyer but understand from a community standpoint. Indeed, I am in listening mode on some of the provisions that you have cited. As I have said earlier, if the indemnification clause (to which you refer) is not right for the community now, we should not do it. So, yes, as a lawyer, I represent the WMF, but, as I see it, my role includes supporting our sites and the community. I hardly believe we have abandonned the community, and I definitely see this as a collaborative project. Hope this is helpful in understanding my perspective. Geoffbrigham 14:06, 8 October 2011 (UTC)

I'm glad to hear some of this, especially the end of the indemnification clause, which was indeed one of the most worrisome parts of this. But I don't understand why you or the WMF consider the legal situation with the current Terms to be so bad. I'm looking at http://upload.wikimedia.org/wikipedia/foundation/d/dd/2010-11_Wikimedia_Foundation_Annual_Plan_FINAL_FOR_WEBSITE.pdf page 21, which lists "legal" as $130,000 out of a $9,244,000 budget. Unless the cost of settling lawsuits is somehow hidden in an innocuous-sounding category like "capital expenditures" or "facilities and operations", it doesn't sound like serious trouble at all. Nor have I seen any obvious sign that vandals have knocked the website off the Internet, unless it was only for a few minutes. Unless there's something big I have no idea about, I don't see any reason to fix what isn't broken. Wnt 02:48, 10 October 2011 (UTC)

Wnt, actually my legal budget for this fiscal year is more than three-fold the numbers you have cited from last year (and those numbers don't include personnel). We have hired a new Deputy General Counsel and Legal Counsel to help handle the legal issues, most of which are in advocacy of the community. Our workload is significant, but, if I may say so, I believe we are quite successful. For a number of reasons, I don't like to discuss publicly our litigation defense strategy, but it fair to say that we have a healthy focus on it. (I will only say that we play to win when it comes to unjust lawsuits against WMF and the community.) Thanks for your input on the indemnity clause, which was helpful in assessing whether to exclude it. Geoffbrigham 07:06, 10 October 2011 (UTC)

Wnt, regarding "Unless there's something big I have no idea about ...", did you follow the "wikipedialeaks" of the Arbcom list which came out a few months ago? Since it's public, I'm not breaking any confidences by using it as a reference. Among all the boring exchanges, there was also quite a mass of disturbing material there. The guy who talked about committing suicide over his Wikipedia experiences, the various threats, quasi-legal bluster over administrative actions, etc. As well as tacit approval for high-status Wikipedians who made vicious personal attacks on the right targets. I'm an odd person to be defending the WMF's position, but it's pretty easy to see the prospect of an expensive lawsuit someday, even if one hasn't happened yet. I think that's why there's a significant focus on liability, indemnity and so on. I must say I'm impressed with the responsiveness of removing the indemnity clause. -- Seth Finkelstein 03:20, 10 October 2011 (UTC)

I'm afraid I never did track down those e-mails ... so far every time I've tracked down leaked e-mails it's made for terribly dull reading, and anything of any relevance ends up in the news anyway. I do have to grant that Geoffbrigham's comment that the legal budget is three times what it was last year - and almost three times what I saw planned for this year in that budget - then yeah, there may be a problem. Though I don't see anything about "not killing yourself" in these Terms of Use! Wnt 16:59, 12 October 2011 (UTC)

I think that part of the challenge here is that it never occurred to most people before that the WMF (a corporation) and the community (assorted individuals who clicked the 'edit' button) were not identical. They've always been separate entities, with all that implies, but we've done a bad job of educating our contributors about the fact of the separation, the fact that this is not a relationship between equals, and the fact that the needs of any two different entities, no matter how friendly under normal circumstances, might not always coincide perfectly. This discussion is producing a mental shift among those contributors who both previously had not fully understood the true nature of the relationship (i.e., most contributors) and who also do understand the proposed TOS (which makes that separation much clearer). WhatamIdoing 21:18, 9 October 2011 (UTC)

These Terms don't tend to sound like a relationship between equals, no. But I thought the WMF was supposed to be a non-profit organization elected by and serving the editors and readers. The way I see it, the editors can fairly readily start a new project without the WMF, but the WMF is nowhere without the editors. Wnt 02:48, 10 October 2011 (UTC)

Well, Wikipedia's hype does not exactly educate contributors about the nature of the relationship, quite the opposite. But I concur with the analysis of the mental shift taking place here. I'm not sure of the right word for it - poignant, maybe -- Seth Finkelstein 03:34, 10 October 2011 (UTC)

I like to think of the Foundation as a structure created by the editors to host the projects and promote the Vision. It wasn't created to serve the editors or manage the project on their behalf - the editors were doing fine without a foundation and could do so again if necessary. Never forget the encyclopaedia came first. --Filceolaire 06:18, 10 October 2011 (UTC)

Actually, Wikipedia has never existed without a parent corporation. It was originally launched under a Jimmy Wales' private, for-profit corporation en:Bomis. The WMF was created by Bomis (which was looking for a way to get rid of the ever-increasing expenses), not the editors, and the editors have never done anything without a parent corporation. WhatamIdoing 15:51, 10 October 2011 (UTC)

Some thoughts. First, I hope that, after we hear and incorporate the feedback from the community, the TOS will seem to you less of a step in the direction you outline above. I expected multiple drafts and solid discussions. I did not anticipate getting it right with the first draft. That is why the feedback has been valuable, and, in the end, I hope the TOS will appear more balanced to you. I am quite open to suggestions on how to improve the document from a community perspective.

Second, many of the key provisions in the user agreement (albeit not all) came into existence based on conversations with community members or legal events that were adverse to the community. For example, I don't want a community editor sued because somebody claimed they relied on an article as "medical advice." I want to maximize my ability to sue successfully anybody who undertakes cyber attacks against our site because WMF needs to protect what the community has built. I want new users to know that harassment and vandalism are not the culture of our site because the community has asked for that. I want to be transparent about responsibilities of editors because members of the community have requested clarity (truly ... not just the lawyer talking).

Third, a TOS will never capture many of the day-to-day efforts undertaken by both WMF and the community to form a strong bond. As I pointed out above, for example, the Legal Department spends a significant part of its time and resources defending the community and the movement, as it should. When users get in trouble for free speech, we find ways to support them. We are constantly defending content. And we help grow our communities internationally, on mobile, etc. Other divisions at WMF are doing the same (as they should).

Fourth, WMF is an independent non-profit corporation, but, to its credit, a good part of its Board is elected by the community or chapters. We hire Wikimedians at the Foundation, which helps ensure that WMF is closer to the movement in its thinking. This is complemented by programs, such as our Fellows program, which help further to ensure that Wikimedian blood flows through our veins. I believe that connection is represented in our monthly reports, program grants, etc. The TOS should confirm that close relationship while being genuine in defining the roles and establishing expectations.

Finally, I fully agree with the above point: WMF must support the community, and our editors are critical and invaluable. That is something we should never forget and take into account in drafting the TOS. Geoffbrigham 07:06, 10 October 2011 (UTC)

Sigh. I've been a been a bit hesitant to get into a philosophical "perspective" discussion, as I'm ill-suited to be the point-man for objections, and analyzing specific cases can be very contentious. But, if it may help, here's a try. Yes, yes, you are conveying your perspective. I do understand it. However, it is not the whole of the situation. When you said earlier "I tend to see the .1% of bad conduct ...", call that a prosecution/police viewpoint. It's valid, certainly. But there's a corresponding defense/civil-libertarian viewpoint. Which sees the petty power-trips of administrators, the personal vendettas masquerading as concern, the sometimes quite abusive actions of WMF people. Which considers the threats against critics of Wikipedia, the use of "harassment" accusations as a political maneuver, the cliquishness and selectivity of enforcement. Abstractly, those in authority will say "We are fighting monsters. Give us broad powers, and we'll only use them to protect the good against the evil". But that tends to end badly, as supposed enemies proliferate while much misconduct is excused for The Cause. I'm aware of the objection that this is theoretical, but I'd say there's enough practical evidence to rebut that. I guess my basic point is that there's validity in the defense/civil-libertarian viewpoint even if one grasps the rationale for the prosecution/police viewpoint. -- Seth Finkelstein 14:51, 10 October 2011 (UTC)

Point well made. Thanks. Geoffbrigham 20:40, 10 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 11:06, 19 October 2011 (UTC)

Does Wikipedia accept Terms of Use from other websites?

I hate to bring this up, but what's the use in pretense? If you're claiming the right to restrict the use of Creative Commons licensed content if it was downloaded from Wikipedia, I suppose you also will recognize the "right" (w:National Portrait Gallery and Wikimedia Foundation copyright dispute) of other websites to prohibit people from reusing public domain material. A damn shame, but I suppose the sooner Wikipedia falls the sooner someone sincere will take up the torch. Wnt 13:52, 7 October 2011 (UTC)

As discussed above, we are not restricting the use of Creative Commons licenses. Indeed our TOS recognizes the obligation to use free licenses. Sec. 7. This is different from other websites which place restrictions on public domain material (which this TOS does not). So I don't see the correlation of the issues, to be honest. Strictly my personal point of view, I don't support the use of TOS' to restrict works in the public domain, but we can discuss that elsewhere. Cheers. Geoffbrigham 14:49, 8 October 2011 (UTC)

I'm glad to see [6], so I shouldn't belabor this, except to note that the scenario I had in mind didn't sound much like what was discussed above. I was concerned that it appeared to limit the reuse of the information people had read on Wikipedia - say, when reposting a map of Wall Street businesses to the Occupy Wall Street site, because the intent might be to help the protesters harass them. Wnt 03:06, 10 October 2011 (UTC)

Agreed. Geoffbrigham 07:10, 10 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 11:05, 19 October 2011 (UTC)

Trademarks

I understand why a section on Trademarks is needed however I think we could make things easier for reusers. Every content page has a print/export menu with options to create a printable version, a pdf or a book (= collection of content pages). Can we include some language here that "Using the print/export options on the side menu should, in general, create a file or printout that should comply with our trademark policy and can be copied and distributed in it's entirety. If you wish to ammend or edit this then see our Reusers TOU below."--Filceolaire 21:49, 7 October 2011 (UTC)

I like this idea, but I wonder if we should simply put it on a page explaining the print/export menu, like here. Geoffbrigham 19:54, 8 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 11:05, 19 October 2011 (UTC)

Questions about moving enforcement from community to Foundation

1. How many "especially problematic" users exhibiting "significant Project disturbance or dangerous behavior" requiring more than community enforcement have there been so far?
2. Some examples would be helpful for understanding why this is supposedly necessary. Please list some.
3. In particular, is this targeted at Greg Kohs?
4. What will happen if the community and the Foundation disagree about enforcement; in particular when the Foundation wants enforcement but the community doesn't?
5. How much money and manpower will the Foundation devote to enforcement?
6. What checks and balances will be used to temper Foundation enforcement?
7. Are there any examples of enforcement actions that the community could not or would not take, but the Foundation wanted to take?
8. What steps will be taken to ensure that enforcement will not be used to counter legitimate criticism?

Dualus 12:27, 11 October 2011 (UTC)

I've taken the liberty of numbering your questions, so that you can get responses without people wondering who asked the questions in the first place. Here are my comments:

1. I could name half a dozen off hand
2. But I can't imagine that such a list would be anything other than needlessly embarrassing to the guilty. In particular, long-term abuse by disruptive editors with a "fan club" (a noisy minority of editors screaming about, say, the disruptive person's "constitutional right" to be a jerk online) that result in community paralysis rather than community decision is a problem that might be more cleanly handled by the WMF. Personally, I hope that this will mean more effort at abuse response, e.g., reporting persistent socks to their ISPs. I seriously doubt that they'll want to bother with it, though.
3. Greg isn't on my list
4. The Foundation wins. Always. This is hard to believe, but the fact is that if the Foundation really wants someone banned, then the Foundation is 100% able to make it happen. They own all the buttons. If the devs decide that people whose IP addresses contain too many ones in them aren't allowed to edit, then that's how it will be. We hope that there will never be a serious disagreement, but the fact is that they have both the legal right and the practical power to both make and enforce even the most arbitrary of decisions. The reality is that this is a private website, not a public street.
5. I expect the answer will be "very little", i.e., approximately as much as they do now.
6. In theory, there are no checks and balances (See "The Foundation wins. Always." above). In practice, the Foundation has way the heck more important things to do, bothering with enforcement is expensive (as is processing complaints about enforcement), and they want the community to be happy and productive, so I doubt that we will spend much time wishing for ways to restrain them. We're more likely to be wishing for them to be more active.
7. The Foundation has always engaged in en:WP:OFFICE actions. Although there have occasionally been some initial complaints, so far as I know, the community has always agreed with the Foundation in the end (occasionally involving a few compromises), so the track record shows something more like the community not taking action because it didn't know about the problem in the first place (e.g., the WMF received a direct complaint about libel on an obscure page) or the WMF simply being quicker to deal with the problem, rather than because the community did not actually want the action taken.
8. None. The TOS technically permits the WMF to be as arbitrary, ham-fisted, and stupid as they happen to feel like being. At some level, you're going to have to trust the Foundation. The Foundation has no legal obligation to encourage legitimate and/or allegedly legitimate criticism, and their incentive to permit it is only their hope of being able to improve by it—which does seem to be a cultural value in the organization, and you might notice that they've always had the power to suppress criticism, but they have not chosen to use it. Why should they change that now?
   Also, if they screw up too badly, the community will quit and they'll be stuck with an unmanageable mess. WhatamIdoing 15:06, 11 October 2011 (UTC)

Thanks. I've taken similar liberties with the numbering. So, let me add:

9. Is the Foundation willing to take steps to ensure that their enforcement actions will not be contrary to community desires (perhaps by community review, excepting "oversight" actions where deletions must be hidden to preserve privacy) or arbitrary (perhaps by explicit definition and examples of what constitutes "especially problematic users" and "significant Project disturbance or dangerous behavior"), or counter to legitimate criticism (perhaps by explicit exemption of any critiques of Foundation actions, staff, publications, and practices)? Dualus 18:56, 11 October 2011 (UTC)

Even if the language states that legally the Foundation can do what it likes I would like the TOU to also state it has always been WMF policy that the Foundation will consult with affected communities, after the action if neccessary, before if possible and the policy will be reviewed by the board if required. The board is probably the place for the final say (short of a fork).--Filceolaire 19:19, 11 October 2011 (UTC)

No matter what the TOS does or doesn't say, all policies and all actions by any staff member are subject to review (and possible repudiation) by the Board. That's part of what it means for the Board to be in charge.

Dualus, I have no idea what the answer to your new #9 is. I assume that you are less interested in the practical existence of such steps and the long-standing and rather obvious fact that they do this, and more interested in a written claim that such steps do and will exist.

One thing you might like to consider is how you define "community". Most experienced editors define it as "other active editors like me". The WMF often defines it as "everyone who uses our website, which is 99% non-editor readers." WhatamIdoing 15:20, 12 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 18:31, 24 October 2011 (UTC)

linking is still not a crime

I raised this earlier at Talk:Terms_of_use/Archives/2011-10-06#linking_is_not_a_crime, which was marked as resolved for some strange reason.

Originally it was:

"Linking to material that violates any provision of this Agreement or any applicable law or regulation"

It is now:

"Linking to third party sites when such linking violates applicable law"

That change resolves some of the problem, however it is ignoring the elephant in the room. Wikimedia pages still contain the 'illegal' information. That the TOS says were allowed to link to these wiki pages doesnt make them any less illegal. I personally dont think we need the AACS key on the Wikipedia page, but consensus is that we do. This is partly because it is extremely difficult to not include, unless we disregard the notability policy and also lock every possible redirect and ban anyone who invents new ways to encode it. There are laws across the globe which the internet pretends doesn't exist, and the law doesnt care to enforce (until politics comes into it). Wikimedia content occasionally conflicts with court gag orders, but the community is able to deal with these situations without this item in the terms of use. (e.g. w:Baby P) We need good editors; not censorship. I can provide a long list of legally problematic pages if you want ... ;-)

However the change above does not resolve the problem for the external links, for which I provided examples in the earlier discussion. There are US laws which Wikipedia violates already (DMCA, contributory infringement).

The current wording goes further than compliance with DMCA, and any other law which may have some similar linking/contributory element. The current wording supports WMF-banning people when a DMCA request is received, complied with and not contested. That's chilling.

If this TOS item is retained, the editors that posted 'illegal' links, and support the inclusion of them, will need to be banned. The editors that create pages about notable 'illegal' websites will need to be banned if they include a link to the website. etc.

Please remove this item from the TOS, or provide a very good reason to justify it. If we understand why the WMF believes it needs to be in here, maybe we can help craft a wording that doesnt support censorship. If it is to stop links to malware and child porn sites (as user:WhatamIdoing's suggested last time), there are more effective ways to codify them as unacceptable behaviours without creating a tool to censor the project. John Vandenberg 11:09, 13 October 2011 (UTC)

Not addressing the issue beyond your confusion about its being marked resolved, threads have been marked resolved as Geoff has read and considered them and either did or did not see the need for action. That particular thread sat on this page for several days with a note inviting people to open a new conversation if they had outstanding concerns and, when no further input was provided, it was archived. This is likely to be our ongoing practice when Geoff has put dedicated time into review, and particularly when a section sits without activity for weeks. :) The purpose is to make it clear to him what remains for him to review as he attempts to incorporate community feedback and to reduce the likelihood that, as might have happened here, somebody will return much later and not realize that Geoff (believing it has been abandoned) is no longer following the thread. --Mdennis (WMF) 12:59, 13 October 2011 (UTC)

Thanks for your input John. Based on your feedback and some concern of others, I have deleted the provision as causing too much confusion over its applicability. If there is an egregious illegal linking - such as links to child pornography sites - we may remove the link as a general violation of the law. (BTW I don't necessarily agree that Wikipedia violates the DMCA and contributory infringement laws, but we can discuss that another time.) I think this addresses your concern. Thanks again. Geoffbrigham 13:48, 13 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 11:03, 19 October 2011 (UTC)

Thanks. The Canadian courts have upheld the principle that linking is not a crime. [7][8] John Vandenberg 23:17, 19 October 2011 (UTC)

Note, that's libel/defamation, and US law is similar on that point if not stronger. But it doesn't say anything about copyright or DMCA issues, which are treated differently (disclaimer - I'm not a lawyer, but I've studied these topics) -- Seth Finkelstein 00:54, 20 October 2011 (UTC)

The above confirms the decision to delete the specific language about linking. Thanks for the feedback on that. Geoffbrigham 15:59, 24 October 2011 (UTC)

Concerns with the present text

Hi Geoff, I read over the present text and have a few small points of feedback:

1. I'm concerned that some points (such as "Modifications or additions to material that you re-use") attempt to both duplicate and augment other legal documents (CC-BY-SA license terms), and accidentally do so in a subtly incompatible way. The requirement that "you agree to clearly indicate that the original work has been modified" is not part of CC-BY-SA, as far as I know, and would result in a new augmented license that prevents us from importing CC-BY-SA content from third parties who have not agreed to the Terms of Use (indeed we already have much content of this sort, so such an augmentation is probably illegal). I would instead specify merely that reusers of textual content must comply with the CC-BY-SA license (or, if you really want, that derivative works of textual content should be licensed as described in the CC-BY-SA license). — Dcoetzee (00:52, 8 October 2011), — (continues after insertion below.)

   This is taken from our present terms of use ("If you make modifications or additions, you must indicate in a reasonable fashion that the original work has been modified. If you are re-using the page in a wiki, for example, indicating this in the page history is sufficient."). So we have been living with this for some time. And I believe it is consistent with the license: take a look at Section 4(c)("in the case of an Adaptation, a credit identifying the use of the Work in the Adaptation (e.g., "French translation of the Work by Original Author," or "Screenplay based on original Work by Original Author")).Geoffbrigham 05:23, 8 October 2011 (UTC)

2. The term "vandalism" is Wikipedia jargon and should not be used in this document. — Dcoetzee (00:52, 8 October 2011), — (continues after insertion below.)

   I would leave it to local Projects to define the term for enforcement purposes if there was a need. It is a serious problem for our admins, so I think we need to mention it in the TOS. Geoffbrigham 05:23, 8 October 2011 (UTC)

3. I'm concerned that some terms extend needlessly beyond what is legally required - for example forbidding "exploiting anyone under the age of 18 in a sexual, violent, or other manner," even when both users are located in a jurisdiction where the age of consent is lower than 18, or when both users are under 18. Better to restrict this to things that are actually illegal. — Dcoetzee (00:52, 8 October 2011), — (continues after insertion below.)

   I see your point, and others have issues with this provision. I have redrafted with tighter language. Geoffbrigham 05:29, 8 October 2011 (UTC)

   I disagree with you both. The Law forbids you from acting this way towards under 18's. We hold all our editors to a much higher standard. We require them to be civil and to work cooperatively with all other editors. We require them to act in good faith and to assume good faith in other editors. This is what the TOU should say.--Filceolaire 12:58, 8 October 2011 (UTC)

   I am happy to put language like that into the TOU, though I have read some feedback debating some nuances of the idea. Filceolaire, is it possible for you to draft a sentence that you believe will have community acceptance? If so, I will include it in this draft. Thanks again for the feedback. Geoffbrigham 21:36, 8 October 2011 (UTC)

   OK. Here is my draft for the opening paragraph of the Refraining from certain activities section:

   The projects hosted by the Wikimedia Foundation only exist because of the vibrant community of users like you who work together to write, edit and curate the content. We happily welcome your participation in this community but we require you to be civil and polite in your interactions with others in the community and to act in good faith and cooperate with others for the success of their project.

   Below are listed certain activities, whether legal or illegal, which may be harmful to other users or which may also subject you to liability. For your own protection and for that of other users, you may not engage in such activities on our sites. This list is however not comprehensive. Any incivility or bad faith editing, working against the ends of the project, may get you banned from editing some or all of our sites. --Filceolaire 01:15, 9 October 2011 (UTC)

   Great. I like it. I wordsmithed a bit and but part of the above paragraph at the bottom of Section 4, but I think I captured your points. Let me know if you disagree. Geoffbrigham 17:47, 9 October 2011 (UTC)

   That looks OK except putting the paragraph at the end and starting with "In addition" makes it look like the list above it is the important bit and the ban on Incivility and Bad Faith is an afterthought. If we change "In addition, any" to "The list above is not comprehensive. Any" then I think that makes it clear which is the basic rule and which are illustrative examples.

   I would rather all sections start with a general statement of policy and what is permitted, before you start the list of what is banned.

   and I still think sections for different types of user, including Republishers and Projects, would be better than the current layout. --Filceolaire 19:53, 9 October 2011 (UTC)

I have modified the sentence in Section 4 to read: We happily welcome your participation in this community, but we expect you to be civil and polite in your interactions with others in the community and to act in good faith and cooperate with others for the success of the shared Project. I have deleted this sentence: Any incivility, bad faith editing, or working against the ends of the project, as defined by local Projects, may result in a community ban from editing some or all of our sites. I have done so given the discussion in "Politeness and civility." Indeed, the authority of the community to ban such conduct is understood in Section 10, where we stated: As noted, authorized members of the Wikimedia community may also take action according to the community policies of individual Projects, including but not limited to investigating, blocking, and/or banning users who violate those policies. I believe that Filceolaire is addressing the reorganization issue with the community under the discussion topic of "Terms of Use/Remixed". Geoffbrigham 23:19, 18 October 2011 (UTC)

1. Some terms are extremely broad - for example prohibiting knowingly posting content that is merely "misleading" - what editor has not done this? Many productive contributors have also inadvertently engaged in copyright infringement (for example by paraphrasing too closely, or erroneously assessing the public domain status of a document). Similarly "engaging in automated uses of the site that are [...] disruptive of the services" or "inundating [...] with communications [...] that suggests no serious intent to use the Project website for its stated purpose" could describe a multitude of legitimate uses (e.g. someone may yet invent a novel use for the website that is not among its "stated purposes" but well within the ambit of its mission). In all these cases, I would generally want to see the community deal with the issue, rather than the Foundation. — Dcoetzee (00:52, 8 October 2011), — (continues after insertion below.)

   I took out the term "misleading"; your point is well taken there. Not so sure about the infringment argument: It is highly unlikely that we would take enforcement action against a user for a single inadvertent infringement, but we should be allowed to delete the infringing contribution. The primary purpose of the list in Section 4 is to inform people about conduct that they should avoid. I would leave the "inundation" clause as is because it applies only when there is imminent harm to the systems (which WMF is charged with managing); if there is some new purpose, WMF should be consulted so it could prepare its systems for that new purpose. Geoffbrigham 05:59, 8 October 2011 (UTC)

2. The language "mandatory policies and guidelines" is quite peculiar - at least on En, no guideline is mandatory. Again, I would want to see violations of such policy dealt with by the community, particularly in cases where it is the policy that requires correction. Most perplexingly, it is possible for someone to temporarily make something a policy by merely adding the policy tag to it or to directly edit most policy pages (until they are reverted) - would anyone who violates such a modified policy in the meantime be liable for a contract violation? The open-ended nature of this clause, which effectively extends the terms of use to embrace a huge array of dynamically shifting and openly editable documents, is deeply disturbing to me. — Dcoetzee (00:52, 8 October 2011), — (continues after insertion below.)

   I included the word "mandatory" to limit the scope of the sentence; I believe Projects may enforce mandatory policies if they chose. (But feel free to correct me if I'm wrong.) If a policy is not "mandatory," it is not included within the scope of the sentence. Given your feedback, I will take out the word "guidelines." Geoffbrigham 05:59, 8 October 2011 (UTC) — Dcoetzee (00:52, 8 October 2011), — (continues after insertion below.)

   With regard to this edit, I don't see how it's useful: the point is the "mandatory" part, not how the mandatory rule is called. The distinction policy vs. guideline is not clear in all projects (especially non-English language ones), and a "guideline" can be mandatory. Nemo 08:46, 8 October 2011 (UTC)

   Thanks,Nemo. If we have mandatory guidelines, I'm inclined to put it back in. Geoffbrigham 12:52, 8 October 2011 (UTC)

   My main concern here was actually not limiting it to mandatory community rules, but the idea that a legal contract is effectively encompassing an enormous, dynamic, and poorly-defined set of external documents. A request to follow policies seems acceptable, but the idea of being legally liable for violating a policy that you happen to not know of, even if it lacked consensus and was promptly reverted, seems to fly in the face of the Ignore All Rules pillar and common sense. Dcoetzee 03:12, 11 October 2011 (UTC)

   I think this comment is important, and goes far beyond this particular point because it's not only a matter of internal community documents but also laws: ignorantia legibus non excusat, but at least one would like to know what jurisdiction is supposed to be followed (see also your point 3 above). With regard to mandatory policies/guidelines, "mandatory" is a tricky adjective in itself. We can have a policy which says "this part of an article must look like this", but it doesn't mean "every user must do it this way", it just means that someone will have to fix it some day if it's not as it should be (and that the fix shouldn't be reverted or cause an edit war and such); in other words, acting in good faith for the good of the project as defined by the project itself is the point. Nemo 09:02, 16 October 2011 (UTC)

There's probably other stuff but that's what I have so far. Comments welcome. Dcoetzee 00:52, 8 October 2011 (UTC)

Great comments. Thanks.Geoffbrigham 05:59, 8 October 2011 (UTC)

Dcoetzee, at en.wiki, it is official community policy that even policies are not mandatory. But there are many practices described in all sorts of advice pages that are mandatory in practice. en:WP:External links is "just" a guideline, but what it says at ELNEVER #2 about never adding links to blacklisted websites is absolutely mandatory, without exception, and instantly enforced by the software. WhatamIdoing 21:32, 9 October 2011 (UTC)

Actually, the blacklist is very easy to get around, though I only recall IARing it once, for a discussion on Jimbo Wales' talk page where Encyclopedia Dramatica had a better article than ours. ;) (they really did, too - something about Internet culture, can't remember what it was now...) Wnt 03:16, 10 October 2011 (UTC)

If you can get a functional link (not just plain text like "http www badsite com") saved onto a page, then I'm sure that the devs will want to hear from you. WhatamIdoing 15:09, 11 October 2011 (UTC)

I believe that links to Encyclopedia Dramatica should be backed by consensus; not many users will find Ignore All Rules as a satisfactory justification. en:Talk:Encyclopedia_Dramatica#Providing_closure_for_the_straw_poll is an example of consensus-building in progress. Discussions such as that will result in fewer revert wars. If the discussion results in consensus for a link, I'll tell someone at en:MediaWiki_talk:Spam-whitelist about that consensus and have add encyclopediadramatica.ch/Main_Page to the whitelist. Since "Probing, scanning, or testing the vulnerability of any of our technical systems or networks without authorization" will be prohibited under these new Terms of use, anyone wishing to test an exploit should do it on a non-Wikimedia wiki instead. ShoutWiki.com, BluWiki.com, and Wikkii.com use the SpamBlacklist extension, but ShoutWiki is currently locked. Wnt described an exploit on ED, and it works to a degree. I say "to a degree" since the page becomes virtually locked from editing until the link is broken. One could get around that by reversing Wnt's "Step 3" in order to break the link, revising the page while the link is broken, and then repeating Wnt's "Step 3" in order to restore the link, but they would be a pain in the ass for most people. --Michaeldsuarez 20:59, 12 October 2011 (UTC)

Now here's a problem: "probing, scanning, or testing the vulnerability of a network" to me sounded clearly like a prohibition on hacking into accounts, not evading a blacklist. This is the problem with all these new WMF policies - they have the force of policy (or more so) but they don't have a long thought out Wiki page describing what each one of them mean. P.S. The next editor in line had no trouble editing afterward, at least last year. (At least on Wikipedia, no idea about elsewhere) [9] Maybe they upgraded something? Wnt 21:24, 12 October 2011 (UTC)

Thanks to all for your feedback. In response to the discussion about "mandatory policies and guidelines," I have deleted the sentence in question entirely. I believe that a number of the above arguments are convincing that the sentence may confuse or misrepresent. I do want to make sure we recognize the authority of community policies, but I think we make that clear in Section 10, where we say: Authorized members of the Wikimedia community may also take action according to the community policies of individual Projects, including but not limited to investigating, blocking, and/or banning users who violate those policies. I believe this solution works, given the above discussion, but please let me know if I have it wrong. Geoffbrigham 23:30, 18 October 2011 (UTC)

Stated in writing by who?

Geoff, you just added:

"You understand that, unless otherwise stated in writing,
you have no expectation of compensation" 

Should this be "Stated in writing by us"? or maybe "agreed in writing"? Otherwise some smart Alec will send you a letter quoting his rates and then claim that you must have agreed since you didn't bar him from editting.--Filceolaire 15:43, 18 October 2011 (UTC)

Filceolaire - you are a better lawyer than I. Good point. Change made Geoffbrigham 23:45, 18 October 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 13:07, 20 October 2011 (UTC)