Talk:Terms of use/Archives/2011-09

Reasons for the New Terms of Use

A copy of the announcement from the mailing lists by the Wikimedia Foundation General Counsel
Hi, In the legal department at the Wikimedia Foundation, we have been examining for some time whether, as the 5th largest website in the world, we need a new terms of use agreement. Given our size and the need to ensure good communication with our users, I think we do, so we’ve put ourselves to drafting a new version with the hopes that we could get your review, comments, and ideas. You can find the current version of our terms of use here: http://wikimediafoundation.org/wiki/Terms_of_use . You can view the new draft here: http://meta.wikimedia.org/wiki/Terms_of_use As I see it, right now our present terms of use is not much more than a licensing agreement. It does not address a number of other subjects that are normally found in terms of use of other community-driven websites and that are often relevant for both legal and community reasons. See, as examples, the Mozilla Terms of Use (http://support.mozilla.com/en-US/kb/Terms%20of%20Service) and Creative Commons Terms of Use (https://creativecommons.org/terms) . What we would like to do is to invite you to read the draft, reflect on it, and leave your comments and feedback on the discussion page. We plan to leave this version up for at least 30 days; indeed, a 30-day comment period for changes is built into the new draft. Our plan is to review the comments and feedback, make appropriate changes and edits, return with a revised version, and, if appropriate, propose that draft to the Board of Trustees for adoption and translation. Generally, we sought to craft a document that is more even-handed, shorter, and easier-to-read than most user agreements. Although we encourage you to read the entire draft, here are some key provisions to give you some flavor: Security: The proposed agreement prohibits a number of actions - like malware - that could compromise our systems. We thought we should be clear as to what is unacceptable in this area, though most of these restrictions will not be surprising. Roles and responsibilities: We feel we need to be honest with the community on a number of issues, including user liability. We have heard a number of community members asking for guidance on this topic. The proposed agreement also seeks to provide guidelines to help users avoid trouble. Community feedback: With this version, and with each major revision afterwards, we want the community to be involved … obviously. So the proposed agreement gives users a 30-day comment period before a major revision goes into effect (with Board approval). There is a 3-day exception for urgent legal and administrative changes. Free Licensing: We felt our present agreement is somewhat confusing on the free licensing requirements. The proposed agreement attempts to explain more clearly those requirements for editors. Harassment, threats, stalking, vandalism, and other long-term issues: The proposed agreement would make clear that such acts are prohibited. Novel for us, the agreement also raises the possibility of a global ban for extreme cross-wiki violations, a need that we have heard expressed from a number of community members. We will share that policy with the community in draft form shortly. Dealing with such matters is a process that we hope volunteers will continue to lead on a day-to-day basis. Other Legal Provisions: We do have other legal provisions...we are lawyers after all. Most notably, the proposed agreement incorporates legal sections that are commonly used to help safeguard a site like ours, such as disclaimers and limitations on liability. Thank you in advance for your review and comments. Your input will be invaluable. Geoff

Some folks have asked me to explain in more detail, beyond my email, why we need a user agreement, which, of course, I’m happy to do. To start, I want to underscore a couple of points. First, a user agreement should serve as a guide to new editors and readers (as well as the rest of the Community). It should help newbies understand the basic rules of the game and their responsibilities. It is only fair notice, and it reflects our commitment to transparency. When people understand the rules, when they understand their responsibilities, the experience is likely to be a better one for the reader and user as well as the Community. To be sure, not everyone reads the user agreement, but many do. And, when there are questions, it is always there as a reference to guide and advise.

Second, a lot of this falls into the category of “an ounce of prevention equals a pound of cure.” There is a reason that every other website of our size has a (much more extensive and shockingly one-sided) terms of use: a little bit of legal language can go a long way in keeping an organization out of court. Indeed, we see more extensive terms of use than our present one on websites that share values of openness and community. See, as examples, the Mozilla Terms of Use (http://support.mozilla.com/en-US/kb/Terms%20of%20Service) and Creative Commons Terms of Use (https://creativecommons.org/terms) .

These terms of use are useful in preventing the frivolous lawsuits that could otherwise hit hard an organization’s budget; an issue that is especially relevant for a non-profit. Just because a lawsuit lacks basis doesn’t mean we don’t still have to hire a lawyer to go to court to defend us, and, if there’s one thing lawyers are known for, it’s that their costs add up fast.

Wikipedia and our other sites are really big now. This is something to rejoice and be proud of – you, as well as everyone who has contributed over the years, have done a great job building this amazing site while promoting an incredible mission! But being large means you have to protect yourself, your infrastructure, and your Community.

That said, let me take a stab at explaining some of the more specific reasons for the proposed terms of use:

1. A good description of our services (Sec. 1) reinforces to third parties, potential litigants, and courts what is a known and important fact about our operation: Wikimedia is a hosting site, entitled to legal immunity under U.S. and some foreign law. We constantly receive threats of lawsuits, but, after we explain our hosting site immunity, most of those threats go away. If we do go to litigation, and we sometimes do, courts are receptive to our hosting status position. The proposed language in the user agreement is not essential, but it can help persuade a foreign court that we are hosting content where the local law is unclear. In short, it reduces costs: We operate on a small budget, and every time we can persuade a lawyer not to sue us or a court to support us, that means more money to support the Community mission.
2. The user agreement helps new users see comprehensively the most important policies governing our site, like the Privacy Policy (Sec. 2), Board resolutions (Sec. 11), and Community policies (Sec. 11). It becomes more difficult for a user to claim ignorance about these essential guidelines when they are referenced in a user agreement.
3. A user agreement provides helpful notice to new users on issues that govern their very first edit. For example, a new user should know upfront that he or she is responsible for his or her edits (Sec. 1b). That is only fair. A new user should understand what basic behavior is not acceptable on the site (something that we are working to define right now through this discussion process)(Sec. 4). That helps both the user and the Community.
4. The prohibitions also are intended to assist the Community when it enforces its rules against unacceptable conduct (Sec. 4, 10). Indeed, for some of these prohibitions, such as long term abuse, senior members of the Community requested that we address this behavior as aggressively as possible; this user agreement is in partial response to that. Unacceptable conduct that is expressly called out in the user agreement provides backup for all the projects to enforce against violating users. And, if we were challenged in court, clearer rules in the user agreement would render these community actions even easier to defend.
5. The user agreement seeks to put in one place the essential parts of other legal or important documents on our site, many of which would be particularly hard to locate for newer or less familiar editors and readers. For example, the user agreement addresses potentially offensive material (Sec. 3a), non-professional advice (Sec. 3b), use of our trademarks (Sec. 6), and third party websites and resources (Sec. 9). See, e.g., http://en.wikipedia.org/wiki/Wikipedia:General_disclaimer ; http://en.wikipedia.org/wiki/Wikipedia:External_links#Restrictions_on_linking ; http://wikimediafoundation.org/wiki/Trademark_policy .
6. With respect to technical situations like malware attacks on the site, we need to be ready to litigate if necessary. We facilitate that legal option by underscoring our boundaries in the user agreement for purposes of common law trespass and the Computer Fraud and Abuse Act (Sec. 4). We want to be in the best position to protect our infrastructure and pursue all legal avenues, and the user agreement advances those goals.
7. A user agreement should provide helpful information to ensure the experience is a positive one. We do that in the new proposed agreement. See Sec. 5 (telling users to keep their password secure); Sec. 8 (providing advice on how to handle DMCA takedown notices).
8. Like the present user agreement, we need to provide clear guidance on the licensing requirements (Sec. 7). With a new reiteration, we hope we employ even easier-to-understand language (though we could probably do better, and as with everything else, welcome your suggestions to improve it).
9. A user agreement allows us to gather in one place required legal notices and processes which help limit our legal liability, such as the Digital Millennium Copyright Act (DMCA)(Sec. 8).
10. The crown jewels for the Community and the Foundation are the Wikimedia trademarks. We need to be vigilant in this area, and the agreement puts all users on further notice that the trademarks may be used for only limited purposes that advance our mission (Sec. 6). Part of our ongoing legal responsibility as an organization is to safeguard our marks, and it is surprisingly easy for these trademarks to be lost due to obscure legal pitfalls. Our trademarks are there to protect users, the community, and the general populace by providing a clear method of identifying our services and goods so people are not misled by fraudulent impostors. The proposed user agreement furthers that aim.
11. There are good reasons to limit WMF liability in other ways (Sec. 13-16). WMF works off a limited budget consisting of valued donor money. $30 million sounds like a lot, but it really isn't for a website our size. As noted above, any wording that can persuade a lawyer not to file a lawsuit, saves donors' money - money that can be reinvested to assist the Community in forwarding the Wikimedia movement. I don't want to waste it on outside lawyers.

The above is only a partial list on the reasons for the proposed terms of use, but I hope you find it useful. As I have said below, in the end, this is intended to be a Community document, reflecting its values while reasonably protecting the Foundation. I encourage your feedback and suggestions and thank everyone who has participated so far.

Geoffbrigham 01:49, 30 September 2011 (UTC)

Reasons for the New Terms of Use

A copy of the announcement from the mailing lists by the Wikimedia Foundation General Counsel
Hi, In the legal department at the Wikimedia Foundation, we have been examining for some time whether, as the 5th largest website in the world, we need a new terms of use agreement. Given our size and the need to ensure good communication with our users, I think we do, so we’ve put ourselves to drafting a new version with the hopes that we could get your review, comments, and ideas. You can find the current version of our terms of use here: http://wikimediafoundation.org/wiki/Terms_of_use . You can view the new draft here: http://meta.wikimedia.org/wiki/Terms_of_use As I see it, right now our present terms of use is not much more than a licensing agreement. It does not address a number of other subjects that are normally found in terms of use of other community-driven websites and that are often relevant for both legal and community reasons. See, as examples, the Mozilla Terms of Use (http://support.mozilla.com/en-US/kb/Terms%20of%20Service) and Creative Commons Terms of Use (https://creativecommons.org/terms) . What we would like to do is to invite you to read the draft, reflect on it, and leave your comments and feedback on the discussion page. We plan to leave this version up for at least 30 days; indeed, a 30-day comment period for changes is built into the new draft. Our plan is to review the comments and feedback, make appropriate changes and edits, return with a revised version, and, if appropriate, propose that draft to the Board of Trustees for adoption and translation. Generally, we sought to craft a document that is more even-handed, shorter, and easier-to-read than most user agreements. Although we encourage you to read the entire draft, here are some key provisions to give you some flavor: Security: The proposed agreement prohibits a number of actions - like malware - that could compromise our systems. We thought we should be clear as to what is unacceptable in this area, though most of these restrictions will not be surprising. Roles and responsibilities: We feel we need to be honest with the community on a number of issues, including user liability. We have heard a number of community members asking for guidance on this topic. The proposed agreement also seeks to provide guidelines to help users avoid trouble. Community feedback: With this version, and with each major revision afterwards, we want the community to be involved … obviously. So the proposed agreement gives users a 30-day comment period before a major revision goes into effect (with Board approval). There is a 3-day exception for urgent legal and administrative changes. Free Licensing: We felt our present agreement is somewhat confusing on the free licensing requirements. The proposed agreement attempts to explain more clearly those requirements for editors. Harassment, threats, stalking, vandalism, and other long-term issues: The proposed agreement would make clear that such acts are prohibited. Novel for us, the agreement also raises the possibility of a global ban for extreme cross-wiki violations, a need that we have heard expressed from a number of community members. We will share that policy with the community in draft form shortly. Dealing with such matters is a process that we hope volunteers will continue to lead on a day-to-day basis. Other Legal Provisions: We do have other legal provisions...we are lawyers after all. Most notably, the proposed agreement incorporates legal sections that are commonly used to help safeguard a site like ours, such as disclaimers and limitations on liability. Thank you in advance for your review and comments. Your input will be invaluable. Geoff

Some folks have asked me to explain in more detail, beyond my email, why we need a user agreement, which, of course, I’m happy to do. To start, I want to underscore a couple of points. First, a user agreement should serve as a guide to new editors and readers (as well as the rest of the Community). It should help newbies understand the basic rules of the game and their responsibilities. It is only fair notice, and it reflects our commitment to transparency. When people understand the rules, when they understand their responsibilities, the experience is likely to be a better one for the reader and user as well as the Community. To be sure, not everyone reads the user agreement, but many do. And, when there are questions, it is always there as a reference to guide and advise.

Second, a lot of this falls into the category of “an ounce of prevention equals a pound of cure.” There is a reason that every other website of our size has a (much more extensive and shockingly one-sided) terms of use: a little bit of legal language can go a long way in keeping an organization out of court. Indeed, we see more extensive terms of use than our present one on websites that share values of openness and community. See, as examples, the Mozilla Terms of Use (http://support.mozilla.com/en-US/kb/Terms%20of%20Service) and Creative Commons Terms of Use (https://creativecommons.org/terms) .

These terms of use are useful in preventing the frivolous lawsuits that could otherwise hit hard an organization’s budget; an issue that is especially relevant for a non-profit. Just because a lawsuit lacks basis doesn’t mean we don’t still have to hire a lawyer to go to court to defend us, and, if there’s one thing lawyers are known for, it’s that their costs add up fast.

Wikipedia and our other sites are really big now. This is something to rejoice and be proud of – you, as well as everyone who has contributed over the years, have done a great job building this amazing site while promoting an incredible mission! But being large means you have to protect yourself, your infrastructure, and your Community.

That said, let me take a stab at explaining some of the more specific reasons for the proposed terms of use:

1. A good description of our services (Sec. 1) reinforces to third parties, potential litigants, and courts what is a known and important fact about our operation: Wikimedia is a hosting site, entitled to legal immunity under U.S. and some foreign law. We constantly receive threats of lawsuits, but, after we explain our hosting site immunity, most of those threats go away. If we do go to litigation, and we sometimes do, courts are receptive to our hosting status position. The proposed language in the user agreement is not essential, but it can help persuade a foreign court that we are hosting content where the local law is unclear. In short, it reduces costs: We operate on a small budget, and every time we can persuade a lawyer not to sue us or a court to support us, that means more money to support the Community mission.
2. The user agreement helps new users see comprehensively the most important policies governing our site, like the Privacy Policy (Sec. 2), Board resolutions (Sec. 11), and Community policies (Sec. 11). It becomes more difficult for a user to claim ignorance about these essential guidelines when they are referenced in a user agreement.
3. A user agreement provides helpful notice to new users on issues that govern their very first edit. For example, a new user should know upfront that he or she is responsible for his or her edits (Sec. 1b). That is only fair. A new user should understand what basic behavior is not acceptable on the site (something that we are working to define right now through this discussion process)(Sec. 4). That helps both the user and the Community.
4. The prohibitions also are intended to assist the Community when it enforces its rules against unacceptable conduct (Sec. 4, 10). Indeed, for some of these prohibitions, such as long term abuse, senior members of the Community requested that we address this behavior as aggressively as possible; this user agreement is in partial response to that. Unacceptable conduct that is expressly called out in the user agreement provides backup for all the projects to enforce against violating users. And, if we were challenged in court, clearer rules in the user agreement would render these community actions even easier to defend.
5. The user agreement seeks to put in one place the essential parts of other legal or important documents on our site, many of which would be particularly hard to locate for newer or less familiar editors and readers. For example, the user agreement addresses potentially offensive material (Sec. 3a), non-professional advice (Sec. 3b), use of our trademarks (Sec. 6), and third party websites and resources (Sec. 9). See, e.g., http://en.wikipedia.org/wiki/Wikipedia:General_disclaimer ; http://en.wikipedia.org/wiki/Wikipedia:External_links#Restrictions_on_linking ; http://wikimediafoundation.org/wiki/Trademark_policy .
6. With respect to technical situations like malware attacks on the site, we need to be ready to litigate if necessary. We facilitate that legal option by underscoring our boundaries in the user agreement for purposes of common law trespass and the Computer Fraud and Abuse Act (Sec. 4). We want to be in the best position to protect our infrastructure and pursue all legal avenues, and the user agreement advances those goals.
7. A user agreement should provide helpful information to ensure the experience is a positive one. We do that in the new proposed agreement. See Sec. 5 (telling users to keep their password secure); Sec. 8 (providing advice on how to handle DMCA takedown notices).
8. Like the present user agreement, we need to provide clear guidance on the licensing requirements (Sec. 7). With a new reiteration, we hope we employ even easier-to-understand language (though we could probably do better, and as with everything else, welcome your suggestions to improve it).
9. A user agreement allows us to gather in one place required legal notices and processes which help limit our legal liability, such as the Digital Millennium Copyright Act (DMCA)(Sec. 8).
10. The crown jewels for the Community and the Foundation are the Wikimedia trademarks. We need to be vigilant in this area, and the agreement puts all users on further notice that the trademarks may be used for only limited purposes that advance our mission (Sec. 6). Part of our ongoing legal responsibility as an organization is to safeguard our marks, and it is surprisingly easy for these trademarks to be lost due to obscure legal pitfalls. Our trademarks are there to protect users, the community, and the general populace by providing a clear method of identifying our services and goods so people are not misled by fraudulent impostors. The proposed user agreement furthers that aim.
11. There are good reasons to limit WMF liability in other ways (Sec. 13-16). WMF works off a limited budget consisting of valued donor money. $30 million sounds like a lot, but it really isn't for a website our size. As noted above, any wording that can persuade a lawyer not to file a lawsuit, saves donors' money - money that can be reinvested to assist the Community in forwarding the Wikimedia movement. I don't want to waste it on outside lawyers.

The above is only a partial list on the reasons for the proposed terms of use, but I hope you find it useful. As I have said below, in the end, this is intended to be a Community document, reflecting its values while reasonably protecting the Foundation. I encourage your feedback and suggestions and thank everyone who has participated so far.

Geoffbrigham 01:49, 30 September 2011 (UTC)

Preserved from automated archival. --Maggie Dennis (WMF) (talk)