Talk:Terms of use/Archives/2012-05

... reader, editor, author, or contributor of the Wikimedia Projects

The "Terms of use" uses categories "reader, editor, author, or contributor of the Wikimedia Projects", the term author is new to me, could someone explain? Yogesh Khandke (talk) 08:10, 27 April 2012 (UTC)

author. Seb az86556 (talk) 09:20, 27 April 2012 (UTC)

That is extremely unhelpful and condescending. A more useful reply is to point them to existing discussions such as Talk:Terms_of_use/Archives/2011-11-08#Terms_of_Use/Remixed and Talk:Terms_of_use/Archives/2011-10-06#Users_Authors_and_Editors. I am surprised to see that the ToU still attempts to distinguish between editor, author and contributor, which are all the same thing in our world. It would be good to hear from the WMF why this distinction is needed. Presumably it is so that they cover all bases needed by law. But perhaps it is merely wording that has slipped through the nets and needs to be removed in the next revision. John Vandenberg (talk) 09:29, 27 April 2012 (UTC)

I don't believe that they are trying to make a distinction. Instead, I think they're trying to make it easy for any user to find himself and his self-identified role in this list. WhatamIdoing (talk) 15:29, 27 April 2012 (UTC)

I'm not sure the TOU make a distinction between editors, authors and contributors; they merely list them all to make it clear the TOU apply to all of them, whatever they call themselves. Using "editors" only has the danger some lawyer could claim the rules didn't apply to his clients as they didn't 'edit' because the only wrote new stuff and didn't 'edit' existing stuff. Filceolaire (talk) 19:06, 27 April 2012 (UTC)

At one point I suggested folding it down to editors and readers, but other views prevailed - it seems I was being too Wikipedia-centric. Contributors works best for donors both of money and possibly on Commons where we contribute images that we upload. Author is a term used at Wikibooks. There are occasions in the TOU where it makes a difference. Hence "giving credit where credit is due – to authors like yourself" - user would have been overly broad and reader incorrect here, any reader we tempt into contributing is thence forth a wikimedian and not just a reader. I do a lot of vandal-fighting and typo fixing on Wikipedia, but I don't have the time to actually add much content. When it comes to attribution my understanding is that the licenses require attribution to the people who created it, i.e. the authors. Other editors such as myself don't expect attribution because however many times I remove vandalism to an article, I don't become one of its authors until I improve a good version as opposed to reverting back to a good version. WereSpielChequers (talk) 21:13, 28 April 2012 (UTC)

For whatever it's worth, in my Wikipedia activity I consider myself more than anything else to be an author of articles, and perhaps a wrangler of community :) I generally agree with WhatamIdoing above -- the more terms included the better, so that anybody who is intended to be covered can find something he or she can relate to. -Pete F (talk) 08:42, 2 May 2012 (UTC)

RIP Internet Freedom 2012

Like Egg Centric, above, I encourage the foundation to not go ahead with the proposed change (also like Egg Centric, I did not hear about the change until today despite being a fairly regular contributor and constant reader). Wikimedia is the only popular website operator left that does not have terms of use restricting free speech and free TCP/IP interaction, backed with legal threats, that effectively prevent the wikipedia:en:United States Bill of Rights (and similar laws) from having any meaning on the internet, so if the Foundation proceeds with the proposed change, I do not think that the title of this section is an exaggeration. Wikimedia has been run successfully based on open discussion and flexible rules for a long time, using only IP blocking as a deterrent, so there is no reason to make a change like this now unless giving in to the (ever popular) idea that Freedom Must Continually Decrease For Administrative Efficiency (an idea that actually makes some sense in real life, but never on the internet). The current (pre-May25th) terms of use are only acceptable to me because they are essentially just a free software- or open source-type license (wrapping CC-BY-SA and GFDL) with a misleading, though ominous, title. I quit wikipedia:en:OpenStreetMap a long time ago, partially over the early suggestion of the recently-enacted license change and terms of use, and I am already downloading enwiki-latest-pages-articles.xml.bz2 in anticipation of having to quit Wikipedia (yes, the fact that I am downloading the for-most-purposes read-only dump means that I will not even use Wikipedia, as hosted by the foundation, as a read-only visitor if this change is enacted; I would encourage anyone with the inclination to start a less objectionable mirror analogous to fosm). I will add my comments about how the planning for the change were not well announced to Egg Centric's section above. Esetzer (talk) 02:10, 26 April 2012 (UTC)

I should clarify that I know that the Foundation may sometimes have resorted to legal action or at least to legal threats against those trying to breach its servers' security, mount denial of service attacks, etc., and there are some cases where that continues to be necessary to keep the site running, but the wikipedia:en:default rules established by governments for users' access to web servers are usually more than enough (often far more than enough...) to base such legal action on. There is no reason for the foundation to try writing its own laws related to this. Similarly, if someone tries to sue Wikimedia on some ridiculous charge of "facilitating harassment", or something like that, the default rules should be fine to protect them from liability. The foundation is big enough that it contributed substantially to stopping SOPA, and it should use its influence in the same way to make sure that the default rules remain reasonable (thus allowing many more sites to exist without having to write their own terms of use before going public, etc.). (I wrote this second comment before seeing Seth Finkelstein's response) Esetzer (talk) 02:50, 26 April 2012 (UTC)

You write "there is no reason to make a change like this now ...". But, to be merely descriptive, with great funding comes great liability. The Wikimedia Foundation is transitioning from a simple hosting-support organization into a lobbying and fundraising bureaucratic empire (people might not like that phrasing, but it's just what is). That requires professional-grade legal defenses, because it's ridiculous to try to raise millions and be a policy player without such legal positioning for the organization. I wish you well in your fork, but I think this is a sad lesson for some editors about power relationships. -- Seth Finkelstein (talk) 02:34, 26 April 2012 (UTC)

If the Foundation is "lobbying" or becoming a "policy player" for any reason other than to defend its right to not have legal interference like the new Terms of Use, or the worse version they would likely have had to write if SOPA had passed (or, as always, the wikipedia:en:Berne Convention's unfortunate default rule), affect its users, then it would probably itself be grounds for forking. What examples can you give? Esetzer (talk) 03:50, 26 April 2012 (UTC)

Sigh. I don't want to re-argue the whole SOPA propagandization (more accurate term than "blackout") on this page, or do the associated politicization debate. My point is simply that, pro or con, there are obvious institutional reasons for what the Wikimedia Foundation is doing with these new Terms Of Use. When you write above "the default rules should be fine to protect them from liability", that's just not what the legal team for a multimillion dollar organizations would consider best practices for legal defense against the sort of risks that multimillion-dollar organizations have to consider (disclaimer - I'm not a lawyer). -- Seth Finkelstein (talk) 04:18, 26 April 2012 (UTC)

I think Seth is right. The time to address these things is before silly lawsuits appear, not after. WhatamIdoing (talk) 17:12, 26 April 2012 (UTC)

People donate to the Wikimedia Foundation in order to help facilitate the free exchange of "human knowledge", not so the foundation's lawyers can get big paychecks for preemptively backing down from the important fights. Esetzer (talk) 17:29, 26 April 2012 (UTC)

I thik many donors would much rather the foundation indeed spent their money on facilitating the free exchange of human knowledge rather then wasting money on some stupid lawsuit wihich will most likely achieve nothing useful, not even a meaningful legal precedent Nil Einne (talk) 17:50, 26 April 2012 (UTC)

"Legal precedent[s]" do not just make themselves; someone has to try. Most donors probably do not want to think about the messy details of what is needed to facilitate the free exchange of "human knowledge", but they want the Foundation to try as best it can in their name. Esetzer (talk) 18:11, 26 April 2012 (UTC)

Right and those messy details include the need for the TOU. And there's no reason the foundation would want to try to make legal precedent if it doesn't go towards their mission which the TOU helps avoid. And you seem to be ignoring he fact legal precedent isnt even Important in many civil law countries (and if you didn't know such 'messy' details perhaps it suggest you too shouldn't involve yourself, at least not without trying to understand first).... Nil Einne (talk) 18:33, 26 April 2012 (UTC)

The Wikimedia Foundation has traditionally tried to minimize its legal exposure by operating servers in only a few countries (and in most cases the non-US servers are just caches or other less restrictively regulated servers); at one time I think there was only the US, the Netherlands, and South Korea, for example. Is part of the motivation for the new terms of use to allow servers to operate in more countries? Are the new terms of use designed to be consistent with Chinese internet law, for example? The Foundation's goals of global reach and free exchange of information are always at odds in that sense, but global reach ought to be a far lower priority for the Foundation than maintaining free exchange of information since even locally run wiki encyclopedia organizations administratively separate from Wikimedia but running compatibly-licensed wikis can do just about as good a job as Wikimedia's appropriate language edition when a country's internet regulations are unusually problematic. Esetzer (talk) 19:35, 26 April 2012 (UTC)

Of course the messy details of laws impinging on internet freedom are arguable in many dimensions (not just geographic), but that is why editors and readers like me need to have been notified about this discussion before any kind of decision was made: so that all the arguments could be considered. Doesn't it seem interesting that very few editors in this page's history had red-link meta userpage links until recently, and now that such users are contributing more to the discussion, there is more opposition (you seem to be the exception among red-linked usernames)? Esetzer (talk) 19:53, 26 April 2012 (UTC)

Esetzer, as the comment above from Filceolaire indicates, you were notified of this discussions, via a site banner, months ago. People who were interested in these kinds of issues enough to follow the Village Pumps or Administrators' Noticeboards (a group that apparently doesn't include you) received multiple notifications, but everyone was given notice via site banner. I recognize that your failure to participate is one of the standard proofs that a discussion was insufficiently advertised, by definition, but back here in reality, the fact that you voluntarily ignored it back then is hardly a good reason to re-open the discussions now. WhatamIdoing (talk) 15:26, 27 April 2012 (UTC)

I was never notified by any banner on en.wikipedia.org or any other Wikimedia site until the April 25th banner. Why would I look at "Administrators' Noticeboards" when I am not an administrator? Esetzer (talk) 18:29, 27 April 2012 (UTC)

Since this is a response to Filceolaire's second 06:38 bullet point, it relates to international law, and you are also referencing Filceolaire's same comment, I will put this here. Users who want to know how to act to not get blocked should read something like WP:Blocking_policy instead of a terms of use document (since blocking is not a legal threat, it does not need to be made in a legal document). Users in the United States who want a summary of how to not get sued by the Foundation or fellow users should read something like wikipedia:en:Website interaction law in the United States. Users in other countries should read analogous articles for their counties; they should not have to read the US version just because Wikimedia has servers in the US unless there is a link from a relevant section of their own countries' articles about reciprocal treaties, etc. (see wikipedia:en:Megaupload...). These do not need to be legal documents either since ignorance (such as that that may at times result from reliance on a poorly edited wiki encyclopedia article) is no excuse for the law; in practice relying on these articles should be better than reading a single-author legal document for the same reason that other Wikipedia articles are more popular than those in expert-written encyclopedias these days. What I am saying is that Wikimedia should try to establish reasonable legal default rules for interactive websites so that they, and innumerable other start-up websites, will not have to worry about writing terms of use documents that present an unnecessary layer of complexity and divisiveness on top of the underlying legal regimes (of course, interactive websites selling regulated products like prescription drugs may needs terms of use about ordering requirements, cancellation policies, etc., but sites dealing only in information should usually have no such special needs). Esetzer (talk) 18:26, 27 April 2012 (UTC)

Judges should dismiss cases without merit regardless of whether the site has a terms of use document if there are reasonable wikipedia:en:default rules, and since large parts of terms of use documents may be legally unenforceable or may in practice have been ignored by any party involved, there is if anything more for lawyers to spend their time arguing about with the terms of use before a conclusion is reached. If lawyers (who have a very tight job market) wanted to minimize litigation, they would not propose complex terms of use documents. Esetzer (talk) 18:40, 27 April 2012 (UTC)

Judges should do a lot of things but do really want to depend on that?

The point of 'Default rules' is that they are based on the typical operation of businesses. Which business do you want the judge to take the default rules from? Facebook? Default rules for user contributions to other websites are that the website own the the contributions. Do you want the WMF board to have the right to do that?

Wikipedia and the WM projects are not typical businesses so it would be very unwise to depend on default rules based on the operation of typical businesses. If we depend on default rules then, the smallest, silliest dispute will lead to a long, expensive court case because the case doesn't end till the judge decides which default rules apply and our opponent in court gets just as much say as we do in which rules get chosen. The point of the TOU is to make it easy for the judge to decide the case, in our favour, early on, at the least cost.

This is not a complex TOU document. It is long because it addresses a large number of different things but I believe we were very successful in the consultation between September and the end of last year in getting nearly all the complex wording simplified. As a wikimedia volunteer I worked hard on that consultation and I'm upset that you dismiss my work so glibly. I think this is a good document. If a court decided to use these as the default rules for other (non WMF) wikis without TOUs I think this would be a good thing - default rules come from somewhere and these are the best we have been able to make them.

If you really believe we should rely on 'default rules' chosen by some judge from some other site, instead of written Terms of Use, then you should stand for election to the WMF board rather than wasting time here. Filceolaire (talk) 20:10, 27 April 2012 (UTC)

Wikimedia's current "terms of use" address copyright issues such as the wikipedia:en:Berne Convention default rules and submission ownership, and I am not arguing with that. The second best situation for operators of websites wishing to minimize legal trouble and maximize user freedom (better, say, than having one set of Wikimedia-derived default rules applying to "wikis" and another set of default rules applying to "businesses" when it is very hard to determine the dividing line between those categories in general, but worse than having simple, very general default rules to rely on everywhere) is to have good standardized agreements that can be referred to by name or URL so that website operators can apply them with a single link to a well-known copy and users can read them only once in order to use many different sites. This is of course meant to describe the terms-of-use analogue to the Creative Commons licenses. At this point, the new Wikimedia terms of use are not that. Most notably, they are specific to Wikimedia's mix of projects in many places. It might be possible for other websites to abuse them unedited or lightly edited for their own use (importantly, they are CC-BY-SA licensed, instead of the GPL and GFDL "changing it is not allowed" requirement, for example), similar to how Wikipedia originally abused the GFDL for collaborative editing when it was written for licensing of whole books, but it is more likely that arguments like those on this page would eventually lead to the creation of a more general but incompatible standard that the Wikimedia foundation would then have to work to (hopefully) adopt in place of the 2012 terms of use. Even though I would encourage standardization, I cannot endorse any as-yet non-standard terms of use documents that appear heavy-handed to me. If real standardization starts to look likely, however, I may reconsider some of my objections, even to rules that seem uncalled-for to me, in the name of general solidarity. For example, the "effective technological measures" parts of CC-BY-SA 3.0 are uncalled-for as written, but I got totally over that objection once Wikipedia suggested standardizing on it. Esetzer (talk) 21:45, 27 April 2012 (UTC)

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The second best situation for operators of websites wishing to minimize legal trouble and maximize user freedom...

Here, I think, we get to the nub of the matter: Esetzer wants the WMF to exist for the purpose of maximizing Esetzer's freedom. The WMF, however, does not exist for that purpose. Its purpose (one it must fulfill, by law, or lose its tax exemption) is providing education, not providing a platform for Esetzer to exercise his freedom. If Esetzer wants to maximize his freedom, then he needs to get his own website instead of trying to abuse this one for his desired purpose. WhatamIdoing (talk) 16:32, 28 April 2012 (UTC)

Looking at the "Vision Statement" at the top of the terms of use document and the "Mission Statement" that that page links to, there appears to be a discrepancy: the vision emphasizes "freely shar[ing]" (which presumably means both giving and taking of information) by "every single human being", whereas the mission statement never mentions free-as-in-freedom except in the copyright-related sense and makes no attempt to be universally inclusive ("people around the world" may include only a small fraction of all "human being[s]"). The discrepancy seems related to, but is more general than, the contradiction between the Foundation's goals of free exchange and global reach that I identified above. The vision statement is the more overarching statement of the Foundation's purpose, so I would suggest that the mission statement needs to be changed to reconcile this... If the mission statement's "description of the status quo" wins out instead, then it is obvious that this section's title could just as well have been "RIP Wikimedia's Ideals 2012". Esetzer (talk) 19:22, 28 April 2012 (UTC)

No. You still don't get it. It's not about the your rights or freedoms. Period. You need to go elsewhere. Seb az86556 (talk) 19:26, 28 April 2012 (UTC)

That was quite rude. Osiris (talk) 19:46, 28 April 2012 (UTC)

Rightly so. S/He's been shown utmost patience. Now s/he needs to leave. Seb az86556 (talk) 21:22, 28 April 2012 (UTC)

This is all a rather harsh and sneering treatment of a fundamental divide shown by the legal conflict - to wit, does the Wikimedia Foundation exist to serve the contributors, or do the contributors exist to serve the Wikimedia Foundation? (formally, how is the mission of the Wikimedia Foundation to be implemented?). My view is that many editors are fed a popularism that deludes them that the Wikimedia Foundation is serving them (i.e. like politician being called a "public servant"), whereas in reality they are considered powerless disposable labor to serve the Wikimedia Foundation. The shut-up-and-sit-down response demonstrates that quite starkly. However, my advice to Esetzer is that belaboring the point on this discussion page is bad tactics, as there is not much of an audience (a significant amount of which is hostile), and if s/he want to continue to advocate the point, organizing opposition in other Wikimedia forums is likely more productive. -- Seth Finkelstein (talk) 22:10, 28 April 2012 (UTC)

What other forums do you think would be appropriate and receptive? This seems to be the only place specifically for discussion of the terms of use, though of course one of the main points of contention is the question of why it is and has been so hard for people to find. Esetzer (talk) 23:40, 28 April 2012 (UTC)

Oh, I'm not sure. Village Pump? Critic sites? I think it's an extremely difficult task in any case. The Wikimedia Foundation can easily ignore any current objections, they're far too minimal to affect anything. Sorry, it may be that there's no solution (i.e. "X is ineffective" doesn't help much for finding what is effective - and it may be nothing is effective). -- Seth Finkelstein (talk) 01:19, 29 April 2012 (UTC)

Esetzer: As neither you nor anyone else have actually come up with any comments on the content of the new TOU (apart from a few minor comments from me for consideration in a future revision) there doesn't seem to be much call for a forum to discuss the TOU.

The bit you talked about most is your complaint that the consultation notification was not anywhere you noticed it. There really isn't anything we can do today to change what happened last september. If you have suggestions for how the notification should be handled next time the TOU are modified then please tell us what those suggestions are. Put them in a new section so they won't be swallowed by all this chat.

If you are calling for the consultation to be reopened then you really need to come up with a major problem with the TOU that was missed in the previous consultation. So far you haven't even come up with a single minor problem.

The other issue you raised is whether or not we should have any TOU at all and that is a WMF board policy issue. If you are really serious about changing that policy then I suggest you start with a well researched essay on the subject, addressing the points I made about how judges get 'default rules' from other sites, and then start campaigning in the village pumps to persuade other editors to support you. Getting this policy changed will be a lot of work and commenting here will not get it done. Personally I think we would be foolish to rely on 'default rules' chosen by a judge to be fair to both sides. I think we should have rules written by us, designed to favour free culture over those who would enclose it. Filceolaire (talk) 10:36, 29 April 2012 (UTC) ammended Filceolaire (talk) 13:36, 29 April 2012 (UTC)

A lot of the subtext of the proposed terms of use seems to be saying that Wikimedia is special, specifically that it needs special terms of use for its special way of letting users interact in an unstructured way. I think that that is a totally mixed-up view because the most unstructured, general case of user-website interaction is (emphatically) not a special case; it is exactly the case that default rules in law should be designed to handle. If Wikimedia avoids taking the truly relevant cases to court, it risks having the only precedents set be those related to more restrictive services such as Facebook, leading to the development of simplistic default rules that unstructured services such as Wikipedia cannot be reconciled with and thus to the inability of Wikimedia's sites to interoperate with future services (of whatever kind there may be...) using new standards dependent on the legal standardization (say, what might be defined as Web 4.0 in the future; Web 2.0 could analogously be seen as a response to the legal standardization imposed by the wikipedia:en:DMCA since it provided well defined, if controversial, limits to liability for those involved in user-website interaction). Of course all other wikis would then suffer the same fate. I would say the copyright policy of websites should be wiktionary:en:orthogonal to their terms of use, so just because Wikimedia's "free culture" copyright policy is different than most sites' does not mean that it cannot act as the most general case for website-interaction policy purposes. Esetzer (talk) 01:21, 2 May 2012 (UTC)

This is an example of why I think a non-fluff FAQ would be helpful. Esetzer, one of the themes running through this Terms Of Use is to take away legal rights that users have under the default rules of law, and replace them with rules which are as legally favorable to the Wikimedia Foundation as reasonably possible. One justification has been that "more restrictive services" do that too, and some commenters tried to push back on this, very much under the idea that Wikimedia shouldn't be like e.g. Facebook. I'm not sure how successful that push back has been (I wish there was a way I could get a good legal "second opinion" on some of the topics). Now, I'm not against further push back, quite the opposite. But you're coming very late to the party, and very underpowered. -- Seth Finkelstein (talk) 05:31, 2 May 2012 (UTC)

I do not have any rights to do anything with Wikimedia's servers, but they are, for the time being, allowing me to freely express my view of what their goals are as a long time reader and occasional editor. They have the right to restrict my free use of their servers, but only to the extent that their donors' rights to have their donations used as they intended are not violated in the process. We are arguing about what that extent is, in the light of documents intended to articulate what donors should expect to come from their donations. I was actually thinking of making a large one-time donation to the Foundation earlier this year (when the new terms of use were apparently under development without my, or most other potential donors', knowing it), and if I had made that donation, I would be even more upset about the betrayal of (what I thought were) Wikimedia's ideals. The question is how many actual donors would have a reaction similar to what I would have had if they were paying attention to this terms of use process. It is quite a hypothetical question, however, since few of them would pay attention even if they had been well-notified of it. Charities can never be careful enough in trying to figure out what they ought to do... I am trying to do some of their thinking for them, but obviously on one side of the issue. Esetzer (talk) 23:21, 28 April 2012 (UTC)

Great. If you don't agree with what's going on, then don't donate. You cannot speak for anyone but yourself, so don't speculate on what donors are thinking, and you shouldn't even be trying to "do thinking" for anyone else but yourself. Seb az86556 (talk) 01:07, 29 April 2012 (UTC)

A couple of points about how charities really operate (in the US):

• Vision statements are supposed to be broader than mission statements. Think of it as "what a perfect world would look like" (vision) and "our five-year action plan" (mission).
• Vision and mission statements can be changed at any point in time, at the whim of the Board. They are not legally binding.
• The legally binding purposes for a tax-exempt organization are these: traditional charitable works (e.g., feeding hungry people), religious, education, scientific work, literary, testing for public safety, fostering national or international amateur sports competition, and preventing cruelty to children or animals. The WMF's tax exemption is approved under "education". To keep its tax exemption, the WMF must do something that can be plausibly described as educational. Anything else is changeable.
• Unless the donor made a restricted gift—a gift that came with a note saying "either use this for ____, or send this check back without cashing it"—then the WMF has not only legally permission, but an actual duty to use the donation for whatever the WMF (not the donors) believes will best achieve its educational purpose. The donor of an unrestricted gift has only one recourse if the charity does something that he dislikes: to stop making donations in the future. (Before you get too excited about restricted gifts, note that most organizations simply refuse to receive them unless the money can be used for something that they have already decided to do, i.e., unless your restriction have no practical effect.)
• Because of the nature of the WMF's funding base, individual donations are relatively unimportant. The median donation is something like US $25 (less than one-millionth of the budget), so missing one donor, or even missing 100, is not noticeable. It varies, of course, but, in most well-run charities, a donor is truly significant only when s/he provides about 2% (or more) of the budget. That would be half a million dollars in this instance. I believe that the WMF would listen seriously to anyone offering a tenth of that amount, but because of their enormous base of small donors, they could actually see a tenth of that amount walk out the door without too much pain.
• You don't actually have the right, even now, "to freely express my view of what their goals are". If your exercise of free expression (using their resources) interferes with the WMF's educational purpose, they have a duty to interfere with your free expression (again, only to the extent that it is misusing their resources). The difference between now and next month is only that they're going to tell you this, instead of letting it be a surprise that gets sprung on a few abusive users. Your current comments, BTW, although IMO a waste of your time, would be permissible under both the old and the new TOU, because they're not apparently interfering with the WMF's educational purpose. (To be perfectly clear: if your free expression both uses WMF resources and hurts the educational purpose, then they must stop your use of WMF resources [or whatever specific uses hurt their purpose]; if your free expression merely uses WMF resources but has no significant effect on its educational purpose, then they may stop your use of WMF resources, but they have no duty to do so.) WhatamIdoing (talk) 13:44, 29 April 2012 (UTC)

This is interesting information. Of course "mission" and "vision" can be changed if necessary, the question is what, if anything, to change; I suggested changing the Foundation's mission statement above. I see that the list of charity "purposes" comes from wikipedia:en:501(c)(3), which has references. Is that list of categories really supposed to be exhaustive? Why would there be a category for "preventing cruelty to children and animals", with nothing similar for Alzheimer's patients or other mentally disabled adults, for example? Did whoever wrote the tax regulations just get bored after coming up with nine categories? Does this list actually matter in court, or only to the IRS? Do you know what category more purely policy-related non-profit organizations such as the Electronic Frontier Foundation or asacp would be registered under (I see that EFF says it is 501(c)(3))? Could the Foundation not co-register in that category? Would opposition from people who do not like things like the SOPA protest prevent it? Of course, none of that should really be necessary since if the SOPA opposition was permissible for the Foundation while registered only for education purposes, what I am suggesting about the terms of use would be too; a freely usable internet can easily be argued to be of benefit to education unless someone influential in the process starts insisting that it may not be the most cost effective way of spending educational money or whatever. (On an unrelated note, your last bullet uses the word "right" again in exactly the way that I was saying I did not see myself as having rights... I would say I have a default kind of permission to express my views about the Foundation's goals; since the current terms of use have nothing to say about my editing, there is no legal agreement that could have given me real rights) Esetzer (talk) 22:18, 29 April 2012 (UTC)

The list comes out of the statute itself. Caring for the sick is a traditional charitable activity, so providing direct services to mentally disabled adults would be a "charitable" categorization. If memory serves, the statute only had six categories not that long ago. I'm pretty sure that sports were added later (to support one of the rounds of Olympic games), but I'm not sure which other one was. ("Scientific" might have been added to help the March of Dimes support the creation of the polio vaccine.)

I don't know how the EFF is categorized. (ASACP is probably registered under "preventing cruelty to children".) But it doesn't matter: the EFF does not have a primary purpose of providing a platform for you to exercise free speech. There simply is no category that supports a primary purpose of providing opportunities for free speech. Political speech is necessary to society, but it is not a tax-exempt charitable activity. WhatamIdoing (talk) 15:15, 30 April 2012 (UTC)

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Esetzer, you might want to read and think about the actual text of the statute:

(3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes, or to foster national or international amateur sports competition (but only if no part of its activities involve the provision of athletic facilities or equipment), or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation (except as otherwise provided in subsection (h)), and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of (or in opposition to) any candidate for public office.

Notice the underlined word. Notice, too, that having even a "substantial part of the activities" (not just the primary purpose) be providing a platform for free political speech is pretty much prohibited in the last half of the section. Charities can engage in limited amounts of influencing legislation (particularly for legislation related to being a tax-exempt organization or their own exempt purpose: you wouldn't want to prohibit charities from providing information about how laws about charities would affect themselves, would you?), but they cannot provide a venue for free speech, especially political speech, except as it happens incidentally or is directly related to their exempt purpose.

This doesn't mean that such venues can't exist; it only means that they can't be 501(c)(3) tax-exempt charities. You can set up a completely separate organization to do that. You cannot (mis)use a 501(c)(3) to do that. WhatamIdoing (talk) 15:28, 30 April 2012 (UTC)

First, I will emphasize again that what I mean by Internet Freedom in the context of Wikimedia is not comparable to actual free speech (a concept that I did not bring up) because there are all kinds of rules enforced by non-legal means that restrict what can stand on Wikimedia pages (even talk pages, user pages, and history pages); I of course have no problem with those community-enforced rules. Nevertheless, I would hope that educational charities are not banned from maintaining platforms for free speech (political or otherwise) since university campuses are perennial (and often unrivaled) venues for traditional "free speech activities". Of course university administrators try to regulate such things in various ways, but they have to deal with all kinds of potential physically real byproducts of free speech events on their property (actual (expensive) vandalism, outbreaks of violence, temporary loss of use of their facilities, etc.); websites have far less property at risk and cannot be venues for violence, so keeping free speech on the internet rather than in the real world when possible would always seem to be the safer choice and should not be discouraged by a paranoid reading of laws such as this. But again, I am not even asking for Wikimedia to provide a place for real free speech. Technically, looking at the law, attempting to affect judicial default rules by fighting (as the defendant) lawsuits is neither "to influence legislation" nor to promote candidates. As such, what I am proposing would be strictly more consistent with this law than the Foundation's opposition to SOPA. The fact that such an effort would simply be intended to allow the Foundation to continue operating as it has been (that is, without a significant written terms of use document) also means that it would be hard to attack as being in any way radical. The reason for the Foundation's vision statement being written the way it is is presumably that the Foundation has previously found that, and anticipates a future wherein, permitting free exchange of ideas on talk pages and even within articles (for short periods before reverting accompanied by talk page notices about NPOV, notability, the existence of article talk pages, etc. for new users) is beneficial to ensure creation of the most accessible, comprehensive, and "neutral" educational materials. One of the reasons I do not anticipate really wanting to use Wikimedia materials (even if mirrored on other sites without the terms of use document, etc.) in the future is because of the inherent pro-legal-apathy bias that the terms of use will introduce as editors like me who care about legal systems' correctness and universal scrutability will be discouraged from contributing. Esetzer (talk) 16:51, 1 May 2012 (UTC)

It sounds to me like you want the WMF to be a 501(c)(4) civic league rather than a 501(c)(3) educational charity. It's not. If you want such an entity to exist, you will either have to start it yourself or join one of the many existing ones (e.g., the ACLU) and convince them that this legal issue needs to be taken through the courts. WhatamIdoing (talk) 15:36, 2 May 2012 (UTC)

I really do not think that the official categorization of an organization has much to do with the organization's ability to fight lawsuits as a defendant, and failing to institute a new terms of use document cannot be called activism. If the Foundation is going to enact the terms of use, it needs to accept responsibility for the act rather than claiming that its incorporation category makes it inevitable. Esetzer (talk) 18:00, 2 May 2012 (UTC)

Still not clear what the practical implications of this are. We need some citations. Can you please read through the TOU and pick out the worst clauses and outline how we could do without them. It's time for you to get specific. Filceolaire (talk) 20:02, 2 May 2012 (UTC)

Banner message problem

The banner message doesn't direct users to a central area for discussion and questions. --Michaeldsuarez (talk) 18:03, 25 April 2012 (UTC)

The talk page of the landing page is already being used for that. Steven Walling (WMF) • talk 18:59, 25 April 2012 (UTC)

You'll find that the majority of Wikimedia users don't have wikimediafoundation.org accounts. I can't participate in the discussions there. --Michaeldsuarez (talk) 19:25, 25 April 2012 (UTC)

Gah, I forgot it was there and not on Meta. You're right. Steven Walling (WMF) • talk 19:32, 25 April 2012 (UTC)

It's mostly because - frankly - the discussion period on it has closed. Comments are welcome at the Foundation wiki feedback page, or by email to answerswikimedia.org, but the Board has approved the document. Philippe (WMF) (talk) 20:03, 25 April 2012 (UTC)

http://en.wikipedia.org/w/index.php?title=Wikipedia:Administrators%27_noticeboard&diff=489199519&oldid=489190859 – The average user doesn't know where to raise concerns or ask questions. --Michaeldsuarez (talk) 21:08, 25 April 2012 (UTC)

I accidentally added my first comment on this subject in the "Re-open this!" section below because I did not see this section. I would also suggest that there needs to be discussion pages about this on all projects in order to be as inclusive as possible (users who have not figured out the unified login mechanism and who do not think it is worthwhile to create a meta account just to discuss this should not be excluded; keeping non-English discussions together would also be useful). Esetzer (talk) 04:12, 26 April 2012 (UTC)

Can someone please add a link to this talk page on wmf:Talk:Terms_of_Use_(2012) and wmf:Talk:New_Terms_of_use/en? The average user doesn't know how to reach this page. wmf:New_Terms_of_use/en doesn't include any contact information. --Michaeldsuarez (talk) 15:09, 26 April 2012 (UTC)

I was bold (or as bold as ordinary registered user is permitted to be by the software) in adding a link to this discussion page in a hatnote on wikipedia:en:Terms of service . Esetzer (talk) 17:58, 26 April 2012 (UTC)

Esetzer: Reopening the comments would be an extraordinary action and it won't happen unless you come up with an extraordinary justification, something that nobody noticed during the previous discussion, and so far you have not come up with anything. If you are serious then I suggest you read the TOU and think hard about them. If you find a problem then think hard: is this big enough to justify reopening the comments? If it is big enough then bring it to this page and start a new section to discuss it. Filceolaire 21:14, 26 April 2012 (UTC)

The "extraordinary action" here is the board's acceptance of the change without making any attempt to inform ordinary users who find (for example) en.wikipedia.org to be fine for their purposes and ignore obscure domains such as meta.mediawiki.org and blog.mediawiki.org; I have not heard anyone mention a posting about the terms of use discussion that would have led such people to know that anything was happening (my link from wikipedia:en:Terms of service is minor a counterexample, but far too late). My almost total anti-"TOU"-of-any-kind position is probably not the norm among any such user population, but my discussion-should-have-been-advertised position, should, almost by definition, be shared by all such until-now uninformed people, of which there are myriads (most of who still cannot find this discussion page because there are not links where there should be).Esetzer (talk) 21:58, 26 April 2012 (UTC)

I was one of those who participated in the discussion. I found my way here by following a site banner on en.wikipedia last September.

If you are against TOU of any kind then reopening the discussion is not really going to address that. Is it? The TOU are designed (as I understand it) to achieve two ends:

• When some unscrupulous lawyer tries to sue the WMF to get some of it's millions or force it to change something the judge should throw the case out because the TOU have already answered him.
• For users who want to know what is not allowed and what is expected the TOU should give them an overview.

If you want to convince anyone that the TOU are not needed then you need to come up with some actual arguments to counter each of these two reasons. So far you have not offered one single argument. If you come up with one then I suggest you put it in a new section away from all this discussion about communication. Filceolaire (talk) 06:38, 27 April 2012 (UTC)

There was almost certainly no banner in September; I have a record of my edits for September 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 24, 28, and 29, and I would have noticed a banner on any of those days (probably other days too). I am substantially less sure about late August and October, however. I will respond to your bullet points in the more appropriate "RIP Internet Freedom 2012" section below. Esetzer (talk) 17:30, 27 April 2012 (UTC)

I don't recall seeing a Wikimedia-wide banner message either. I learned about these discussions from the Wikipedia Review, and the Wikipedia Review learned about it from the mailing list. I recall seeing banner messages for the image filter proposal, but I don't remember ever seeing one for the Terms of Use. --Michaeldsuarez (talk) 17:51, 27 April 2012 (UTC)

A related problem that I kept forgetting to mention in this discussion is that there was never any indication that a revision might be upcoming (much less a link to the revision discussion) added to the current (pre-May25th) terms of use page until the day the banner announcing that the change was one month away appeared (at which time the note instantly became redundant with the banner). Looking at the history page, there was only one change during the discussion period, and it was not exactly helpful to people interested in the future of the terms of use (it was a capitalization issue)... Not mentioning the revision there is a huge oversight since it is exactly where people interested in the terms of use look first. Esetzer (talk) 22:41, 29 April 2012 (UTC)

Indeed, "Can someone please add a link to this talk page on wmf:Talk:Terms_of_Use_(2012) and wmf:Talk:New_Terms_of_use/en? The average user doesn't know how to reach this page." as Michaeldsuarez said, and users can't edit those so-called talk pages. --67.180.150.164 05:38, 4 May 2012 (UTC)

Request for extratextual clarification

As with several contributors above, I never once encountered a solicitation for open commentary on this proposal and only stumbled my way through to the correct discussion page. I think it's reasonable to assume that very few contributors would have had a shot at making it this far, and that's exceedingly unfortunate because the community commands a great deal of intellectual prowess. Anywho, and without further adieu, here are some points I'd like to at least see supplementarily clarified:

• "Posting or trafficking in obscene material that is unlawful under applicable law"

Does this clause compromise the Foundation's legal capacity (e.g., via estoppel) or the community's procedural ability (i.e., via staff intervention) to take a stand against unconscionable censorship? CMBJ (talk) 22:35, 6 May 2012 (UTC)

IANAL but it's probably worth warning users in Saudi Arabia (for instance) against doing things which could get them arrested in Saudi Arabia since there is little the WMF can do to help them. They do reserve the right to exercise discretion - i.e. the right to not take staff action. The thing about staff action is that it is not a 'community procedure' so I'm not sure what you meant there. I'm pretty sure estoppel can only stop WMF taking legal action or using certain arguments in defence of a legal action. I can't see how this would affect a legal action against a wikipedian by a foreign government. Filceolaire (talk) 10:38, 7 May 2012 (UTC)

This question pertains specifically to intrajurisdictional legal attacks. For example, the Foundation and community may refuse to comply with a clearly unconstitutional invocation of obscenity law, and everyone may very well be confident that the Supreme Court will uphold first amendment rights if a court battle is pursued. However, in theory, this clause might create an estoppel vulnerability because it could be argued that the Foundation failed to enforce its own contractual obligations effectively. CMBJ (talk) 04:14, 8 May 2012 (UTC)

What obscenity law? Seb az86556 (talk) 04:33, 8 May 2012 (UTC)

I believe he refers to a hypothetical scenario. I'm not a legal professional, and this sounds like a question that might keep a whole roomful of them busy for a while, but I believe that the WMF has very few actual obligations under these terms. It is all subject to "enforcement discretion", and §17 says "If in any circumstance, we do not apply or enforce any provision of these Terms of Use, it is not a waiver of that provision." So I don't think this will be a problem. WhatamIdoing (talk) 14:15, 8 May 2012 (UTC)

• "Infringing copyrights, trademarks, patents, or other proprietary rights under applicable law"

Software patents are currently a minefield, even for large multinational corporations with teams of seasoned intellectual property attorneys. Do we really intend to take corrective action against a contributor if their works (tools, bots, processes, uploads, etc) come under fire for patent infringement? CMBJ (talk) 22:35, 6 May 2012 (UTC)

Yes they are a minefield patrolled by vampires looking out for juicy big money targets to suck dry. When these vampires try to sue WMF (because it has millions) WMF says "nothing to do with us. Read our TOU. We told him not to post it. If you want money go sue him in his mom's basement. If you want us to take it down then send us a polite DMCA letter quoting the exact copyright/patent/right and we will have our lawyer look into it. No you can't have any of our money." That's what the TOU mean. They make it difficult to successfully sue the WMF (which has money) by putting all the blame on users (who, generally, don't). There is, of course nothing to stop the community (who the WMF don't control, honest) from putting together a defence fund so any court case against an editor is likely to be long and painful and costly in reputation as well as money and even if you win you get nothing. Legally this makes wikipedia and other WMF wikis into a porcupine crossed with a skunk. Who wants to attack that? At least that's my understanding but IANAL Filceolaire (talk) 10:38, 7 May 2012 (UTC)

I am so pleased with myself for coming up with that line "Legally the Terms Of Use makes the wikimedia projects into a porcupine crossed with a skunk. Who want to attack that?" and I can't even pimp in on DYK. sigh. Filceolaire (talk) 10:56, 7 May 2012 (UTC)

• "Investigate your use of the service ... to comply with any applicable law, legal process, or appropriate governmental request"

What does this mean for our contributors in parts of the world with less scrupulous governments? Will malicious (but valid and appropriate) requests be invariably spurned, or are we prepared to facilitate sending someone to their grave over allegations of subversion or blasphemy? CMBJ (talk) 22:35, 6 May 2012 (UTC)

The only laws applicable with respect to the foundation are US-laws. Laws of other countries only apply to the user, not the foundation. Seb az86556 (talk) 02:05, 7 May 2012 (UTC)

According to the clause as it is currently written, applicable law needn't necessarily apply for it to be invoked. This becomes readily apparent when you truncate the text down a bit more: "Investigate your use of the service ... to comply with any ... appropriate governmental request". Moreover, even if the text were slightly modified to stipulate that applicable law must demonstrably apply, §1(b) indicates that applicable law is not limited to that of the United States. CMBJ (talk) 06:29, 7 May 2012 (UTC)

Please don't put something into "" when it's not a quote; there is no such phrase in §1(b) of the TOU. Secondly appropriate governmental requests are those of a government which has jurisdiction over the WMF, not any government on the planet. Seb az86556 (talk) 07:00, 7 May 2012 (UTC)

That phrase was a direct quote from §1(b). As for appropriate governmental requests, the concept is not clearly defined in the way you suggest. CMBJ (talk) 07:28, 7 May 2012 (UTC)

"applicable law is not limited to that of the United States" is not found anywhere in the TOU. What page are you looking at? Seb az86556 (talk) 07:47, 7 May 2012 (UTC)

Strange — I suppose it's possible that I accidentally copied a reiteration from my notes. Regardless, the meaning remains exactly the same: "applicable law includes at least the laws of the United States of America". CMBJ (talk) 10:16, 7 May 2012 (UTC)

Note that all this clause gives them the right to do is "investigate your use of the service". If WMF gets a tip off from a reliable source, say a senior police officer, that someone is misusing a little visited talk page as a chatroom for bomb makers then damn right I think they should check it out, see if it's true and, if it is true, apply our rules and delete the out of scope content, without waiting for the subpoena. Filceolaire (talk) 10:38, 7 May 2012 (UTC)

Actually, that scenario is covered under §10: "Manage otherwise the Project websites in a manner designed to ... protect the rights, property, and safety of ourselves and our users, licensors, partners, and the public." The text of §1, however, empowers the Foundation to investigate explicitly for the purpose of complying with governmental requests. Again, "investigate" and "comply" imply that personally identifiable information may be released, and that's concerning when "appropriate governmental request" is not defined to exclude those made by extrajurisdictional entities. CMBJ (talk) 22:01, 7 May 2012 (UTC)

Let's look at it this way: do you have an example of precedents? Or isn't it rather that wikipedia contains material objected to by China, Iran, Saudi Arabia, Belorussia, and whatnot — and the WMF has always refused to co-operate or compromise? Seb az86556 (talk) 00:50, 8 May 2012 (UTC)

Exactly.

SAUDI ARABIA: Complains about content on Arabic Wikipedia.

WMF: Investigates and finds no breach of the project policies.

WMF: Politely tells Saudi Arabia of this conclusion.

SAUDI ARABIA: But what about "obscene material that is unlawful under applicable law". Pretty much everything is unlawful under our laws.

WMF: That may be so but that law isn't applicable to the WMF (thinks: though it might apply to the poor bastard who posted this. Hope he covered his tracks).

The crucial question is when Saudi Arabia asks for the IP for a logged in user. What are the circumstances under which WMF will hand over that info? Anyone know about WMFs responses to lawyers letters? Filceolaire (talk) 15:41, 8 May 2012 (UTC)

• "We reserve the right to suspend or end the services at any time, with or without cause, and with or without notice."

Does the community have any formal recourse if it strongly objects to the Foundation's termination of a user? CMBJ (talk) 22:35, 6 May 2012 (UTC)

Ultimately, no. Seb az86556 (talk) 02:05, 7 May 2012 (UTC)

You have the right to fork the project. WMF publishes a lot of info on their systems and provides data dumps from their projects so this will not be as difficult as for some other web sites, but still not easy I guess. I wonder if we could get Wikimedia Germany to formally take on a duty to archive all this stuff and publish torrents of it - they are big enough to do it and awkward enough to resist pressure and they are not controlled by the WMF or US law. Filceolaire (talk) 10:38, 7 May 2012 (UTC)

WM UK has an AGM next week. Maybe they would be interested in doing this too. Filceolaire (talk) 10:50, 7 May 2012 (UTC)

Just noticed that the line you quoted is about terminating the service (that's what I responded to) but your question is about termination of a user. When there have been widespread objections to an office action in the past the WMF does seem to have been open to reconsider. The WMF board is mostly elected and they direct the WMF staff so there is the option of getting candidates who are against that sort of thing elected at the next election. Filceolaire (talk) 7 May 2012

The answer to your question is no: Every course of action available to the community is informal.

But your question is actually irrelevant to the line quoted. That line says "We reserve the right to unplug the servers, delete the files, auction off the domain names, turn off the lights, and go home". This is about terminating everyone, not about blocking individual users. WhatamIdoing (talk) 16:00, 7 May 2012 (UTC)

English Original

Please make it clearer on wikimediafoundation.org that the English version takes precedence over the translated versions of the ToU. Right now, you have to read through entire document to find that very crucial piece of information; I find it already somewhat problematic with the current terms of use, but they are so short that it's not hard to get to that part. Can't we indicate the nature of the translations in a banner at the top of the localized ToU pages? —Pill (talk) 11:51, 12 May 2012 (UTC)

http://www.facebook.com/legal/terms – Agreed. The Facebook Terms of use has the message about the English version taking precedence at the very top. --Michaeldsuarez (talk) 13:01, 12 May 2012 (UTC)

Anonymity and threats

To state simply why I do not like the proposed terms of use, I will say that I do not like being unnecessarily threatened and I do not like to support organizations that make unnecessary threats, especially not organizations that make unnecessary legal threats on the internet since the internet is still young enough to be in desperate need of legal precedents and unnecessary legal threats may be forced on future users if the threats are inadvertently incorporated into or assumed by the legal precedents being made. This section is intended to uncover the underlying issues that the proposed terms of use document's threats are motivated by and to suggest some possible partial and complete solutions (of varying difficulty) for them. To start with, I present a mercifully short summary of the proposed terms of use, focused on the ways in which the Foundation is legally threatening users, through a central analogy (en:wikipedia:aperture?) with "wikipedia:en:killing the messenger"; not "killing the messenger" is clearly a good idea from the point of view of sites that move user-generated messages of any kind around, and should presumably be the basis for major legal wikipedia:en:default rules applicable to such sites:

Overview: 1 threat, second-last paragraph: should have the basic meaning of "you are responsible for your messages, not us, the messenger", but is more threatening than that.

1.1: "We really are only a messenger" 1.2: "You really are responsible for your messages"

3.1: "Messengers do not always bring messages that people like" 3.2: "More reliable messages may be available elsewhere"

4: Backed by the fifth bullet point of section 10, the last sentence here seems to make everything in this section into a threat. Other than the parts that simply encourage users to follow laws of the United States (such as those relating to child pornography, copyright, and denial of service attacks), the entire section can be summarized as "We may attack you for supplying us with a message that causes the recipient (or in some cases, the message's subject) to attack us". There is much more that can be said about specific parts of this section, however.

5: "Our authentication system gives you little motivation to protect your identity, so we will try to add motivation by implying potential legal trouble"

10: This section makes threats, but only against violators of the terms of use; with my preferred changes, it would be impossible to violate the terms of use without violating an actual law such as copyright at the same time; As such, these threats should be irrelevant to most users but it would still be nice to eliminate them (the part about not circumventing blocks is probably a restatement of some anti-intrusion law, though it may not be; the issue may warrant more consideration).

11: "We can make any other legal threats we want at any time" (?)

13: 1 threat: "If we do not like a message of yours we delivered, we can force your delivery to 'Fog City' to clarify the situation"

16: "We can make any other legal threats we want at any time, after 3 days notice", and "If you want to be sure to hear about upcoming legal threats, you must accept unrelated email messages"

17: "The terms of use can be overriden by a more legitimate contract between us"

Summarized this way, the threats of sections 4 and 10 and of the Overview can be dismissed as unnecessary if a strong form of protection for messengers can be assumed. Courts with any kind of common sense would hopefully try to provide such protection as long as the distinction between unmonitored, user-editable parts of pages and Foundation-controlled parts of pages (such as the Wikipedia logo and the footer referencing the terms of use) is made sufficiently clear, except when poor authentication systems cause them to feel sorry for "victims" of the cite's flexibility-without-accountability while having no one else to blame. Courts arguably should not attack the messenger even when the identity of the originator of the message cannot be uncovered, but in practice they are quite likely to attack the messenger as a scapegoat to try to appease the "victims" or alternatively to try to shut down some aspect of the messenger's operations that leads to a lot of "victims" coming to them to complain (in other words, courts are likely to ignore statements like 1.1 and 1.2, even though they are in the terms of use). This is the same problem that probably contributes to a majority of the (what I see as) unnecessary legal threats being made across the internet on terms of use pages; it is certainly an issue that should be discussed more openly rather than just being obfuscated within terms of use document after terms of use document written by lawyers and rarely read by others. Unless the courts can be reformed to stick more closely to the idea that messengers should not be attacked, the only way to be sure that courts will not mount serious attacks on the Foundation for things that users place on their servers would be to make sure the users are very well authenticated, so that sections 1.1 and 1.2 never fail to be applicable for diverting attacks against the Foundation.

Based on this idea, the first paragraph of section 17 (paraphrased above) looks very suggestive to me: it suggests that I might be able to avoid the threats made in the proposed terms of use document by signing a separate agreement with the Foundation (and, presumably as part of that, verifying my identity carefully to them, following what paragraph 1 of the Foundation's "access to nonpublic data policy" suggests is already an established procedure). As someone without much interest in anonymity (and someone who conveniently does not live impractically far from San Francisco, as should be obvious from my English Wikipedia edit history), this looks like a real chance to get out of a lot of the silly threats made in the proposed terms of use, if a simpler and more legitimate agreement for well-authenticated users can be reached. To others, this suggestion certainly may seem to be an attack on Wikipedia's traditional inclusiveness for anonymous users, specifically on its non-discriminatory inclusiveness for anonymous users, since well-authenticated users would get to follow a different and simpler set of rules. Of course the idea that everyone should have to go to San Francisco and sign a paper in the presence of Wikimedia employees, as this suggestion might in the worst case require, is not based on efficient and modern authentication methods, but it shows how limited good authentication still is on the internet (credit cards are about the best authentication available) and adds to the arguments in favor of wider adoption of high-quality decentralized authentication systems such as web-of-trust wikipedia:en:OpenPGP and wikipedia:en:FOAF+SSL. Esetzer (talk) 20:33, 6 May 2012 (UTC)

no-one forces you to be here. leave. Seb az86556 (talk) 21:53, 6 May 2012 (UTC)

I should clarify that I only see (and intend to point out) meaningful threats within exactly those sections of the proposed terms of use document for which my above paraphrased version explicitly mentions the word "threat". To enumerate, that means I only see literal threats in sections 4, 10, and 13 and in the Overview; sections 11 and 16 make only threats of future threats, which are somewhat different. All other sections are for the most part threat-free (other than the inevitable copyleft and trademark threats, etc.), but I include paraphrased versions of some of them (1.1, 1.2, 3.1, 3.2, 5, 17) to provide context for my argument about authentication. Esetzer (talk) 05:50, 7 May 2012 (UTC)

Esetzer: thanks for posting something more related to the the TOU. Unfortunately the way you posted this wall of text makes it difficult to respond to individual points. Can you break this out into separate sections below on the particular clauses you would like to see changed and how you are suggesting they should be changed. I have read through your post above three times and I am not seeing the 'threats' you mention in the TOU. The TOU seems to me to be merely recording what actually happens on well run wikis (your edits can be reverted, you can be banned) and making it difficult for people to use the courts to make an end-run around our procedures. Thanks again. Filceolaire (talk) 09:47, 7 May 2012 (UTC)

I think I can summarize it for you. The key phrase is under #10, "with my preferred changes, it would be impossible to violate the terms of use without violating an actual law such as copyright at the same time".

Esetzer wishes the WMF to exercise no control, or the least possible control, over what happens to the WMF's own websites. Esetzer wishes the WMF to agree that he can do anything he wants on their websites, so long as what he wants is not actually illegal (in the real world).

The WMF would be stupid to agree to such terms, and the rest of the community would be outraged. Most of us are here for a purpose that is far narrower than "anything that doesn't violate an actual law". WhatamIdoing (talk) 15:53, 7 May 2012 (UTC)

Wikimedia is supposed to be user-driven, and the difference between a wiki full of "anything that doesn't violate an actual law" and Wikipedia (a high quality encyclopedia) has been successfully maintained almost totally by technical and user-run means so far, with no need for legal threats beyond those implicit in running a website in the United States. Legal threats do not help the user-driven process, they instead drive users away; they may seem to help achieve certain goals for a while, but they will eventually be abused or exposed in such a way that a substantial number of users will silently leave, or just reduce their participation. Esetzer (talk) 18:15, 7 May 2012 (UTC)

Esetzer: if this is indeed the heart of your objection to having any TOU then I can see some problems with it. If the only constraint is the law then anybody who disagrees with a decision by the english wikipedia community or any other wiki community can appeal that decision to a court and claim he has been unfairly treated or misled or whatever. He can claim the WP:NLT is unfair and arbitrary and contempt of court and he would get his day in court and he might win or he might lose but he would surely waste a lot of the WMFs money. Remember that with no TOU he would get to choose where the case was heard. If he won we might find ourselves in the position of having a judge dictating to us what community policies should be. Even if he didn't win he might get an injunction stopping us doing something until the case is over.

A WMF donor could then complain to whoever regulates charitable organisations and claim the WMF was negligent because they don't have any TOU and should lose their charitable status. She might win or she might lose but she would waste lots more of the WMFs time and money too.

The objective of the TOU is to make it very easy for any judge to throw a case against the WMF out of court with a minimum of time and money and fuss; to turn the WMF into the legal equivalent of a porcupine crossed with a skunk (I'm from Ireland and those animals aren't native to me. I hope I got the metaphor right) - something no one wants to take on in court - thus providing legal back-up to the WP:NLT policy. --Filceolaire (talk) 20:43, 7 May 2012 (UTC)

Your metaphor is something I let go unchallenged for a week because I think it shows the extent to which people on this page are actively encouraging paranoid legal defenses at the cost of far more important things. Would you like to take a porcupine-skunk home with you and interact with it every day as an active Wikipedian? Similarly, to use a more canonical metaphor about sturdy animals, do you want to take responsibility for the Foundation-as-bull in the china shop of free culture? Among other things, I think that this type of attempt at armoring organizations that work with freely-licensed work is likely to backfire in courts because it undermines courts' inherent sympathy toward less organized, volunteer-oriented defendants. Regarding your other arguments, it is not hard (via a disclaimer, or a far simpler terms of use document, etc.) to clarify that the Foundation cannot be held responsible for community policies (many of which actually gained much of their current form back when Wikipedia was operated by Bomis rather than the Foundation). "WP:NLT" would not likely be an issue in any case since it is not currently a legal document (though with the proposed terms of use, there is an increased risk that it may be seen as being incorporated into the terms of use by reference...); I was only referencing it to emphasize the Foundation's stated principles. Besides, once a threat is contemplated it mostly just suggests that people involved in the litigation recuse themselves from editing, which should not be a controversial suggestion. The conflict-of-law parts of the proposed terms of use I am not especially worried about, one way or the other, because if the other legal threats were removed, they would mostly only apply to people who were violating some law anyway; of course they do not seem too necessary to me even for those cases since they are not likely to stop the Foundation from being attacked in foreign courts anyway (and the Foundation would be free to ignore those foreign courts whether or not they have conflict-of-law statements in the terms of use document). At least they allow the Foundation to avoid sending its lawyers to North Dakota occasionally, but that is a small detail within my overall interpretation of the terms' legal context. Esetzer (talk) 18:58, 13 May 2012 (UTC)

My understanding is that the entire point of the Terms of Use is that they should be a place to put all the paranoid legal defense stuff so the rest of the site doesn't need it - in other words paranoid legal stuff is the most important thing on this page. There is a lot of stuff on our sites which isn't illegal but which we do not want users doing. The Terms of Use is where we summarise them so that our users can't complain that they weren't warned. Filceolaire (talk) 20:08, 13 May 2012 (UTC)

Right now there is no (non-license- or disclaimer-related) legal text on the Foundation's sites at all (or if there is, it is not advertised well enough to be enforceable at all since website policies do not legally apply to users if they are anything but very easy for them to find), and that is how it should be. The Foundation has done fine by relying on default rules so far; in other words, I totally disagree with the idea that "There is a lot of stuff on our sites which isn't illegal but which we [should legally prohibit]": plenty of acts are already illegal... If anything is wrong with the default rules, it is that they are not clear, not that they have too limited a scope. Of course users sometimes make edits that do not belong in an encyclopedia (or whatever), but there are technical solutions (mostly reverting, blocking, and revision hiding) to that that have nothing to do with law. Warning uses of these technical solutions is very different from warning them that the Foundation is bent on being able to sue them at the drop of a hat. Esetzer (talk) 21:02, 13 May 2012 (UTC)

Is no one else interested in the possibility of taking full responsibility for their edits through better authentication, thus protecting the Foundation from liability and themselves from the Foundation's overly broad proposed threats? Are there any stewards who can comment on experiences with well-authenticated (to the Foundation at least) editing? Esetzer (talk) 19:31, 13 May 2012 (UTC)

Nope. I am really not interested in authenticating exactly who posted what and nobody else seems to be interested in that either, except you. In fact I would actively oppose this; I think anonymous editing is very valuable. Also not relevant to this revision of the TOU. Filceolaire (talk) 20:08, 13 May 2012 (UTC)

The Foundation is already interested in authenticating stewards, and I think that they may want to consider extending some of the benefits of authentication to certain other editors who would be inclined to it (obviously not everyone), simply because every authenticated user is one for which their greatest possible legal risk is that of possibly having to at some time decide whether a legal request for the user's personal information meets a minimal standard of legitimacy. Esetzer (talk) 22:09, 13 May 2012 (UTC)

Esetzer, I just don't believe that anyone else shares your conception of the WMF. The WMF is not a knight-errant for free culture. It wants to collect information, not set an example of how to encourage free speech online. Its actions reflect this fact. If you want a role model for free culture, you need to look elsewhere. WhatamIdoing (talk) 14:46, 14 May 2012 (UTC)

I am not sure what you mean by "free culture"; I only used that phrase once, and merely intended it to be a poetic way of referring to the collection of all freely-licensed information (I think that is the most common use of the phrase). Both the Foundation's "vision" and "mission" refer to the free-as-in-freedom licensing of information, so I do not think there is any doubt that they are supposed to be promoting that. If you intend the meaning of "free culture" to be broader, to encompass things like the terms of use of the services used to exchange information, then I think the phrase is too abstract for me to make any generalizations about (As Richard Stallman wrote recently, no one has come up with a well-accepted definition of a "free" terms of use document, for example; my comments on this page are intended, among other things, to discourage the Foundation from adopting terms of use that would likely exclude it from such a definition if one were formulated in the future, and, since there is no well-accepted definition and few legal precedents, I optimistically favor relying on default rules and only modifying the terms of use in the future when and if there is an obvious failing, comparable to the Berne Convention's failing, of a judicial precedent to make freedom the default). You also mention "free speech", but I have repeatedly talked about how Wikipedia (for example) has been maintained as an encyclopedia rather than a collection of "free speech" by non-legal means for ten years, so there is no reason to worry about the excesses of free speech in any proposed terms of use document. Esetzer (talk) 19:09, 14 May 2012 (UTC)

Re-open this!

I had no idea that this discussion was taking place. I'm sure the vast, vast, majority of Wikipedians didn't.

We need to be given some time to make input. Even if it's only a month - that should be enough time for the majority to see the banner.

And I have some specific points that I would like to make - the most important is that I would like a new rule: if a procedure is being carried out on one wiki on behalf of another wiki, and a user is blocked on the former then the block should be lifted so they can compelte that procedure, unless there is significant evidence that they will disrupt the other wiki. This is very imporant to me because I was blocked from voting on an en-wiki issue because I had been blocked on (I think) meta. My block, by the way, was for activities that there would have been no problem with on en-wiki, which is even worse. En-wiki's democratic process was compeltely changed by moving the vote's location, and that just doesnt' sit right.

Secondly, the other rules need to be clearer about juristrictions. I do not want to be indited in Burma. Or Kazhakstan. A writ by Tuvalu... well, I guess I would enjoy the holiday. But the wording is not clear and it is something you are asking me to agree to.

BUT MOST IMPORTANTLY, RE OPEN THIS THING AND LET WIKIPEDIANS KNOW YOU ARE DISCUSSING IT. WHILE THIS HAS TECHNICALLY BEEN "OPEN", TO THE MAJORITY THIS CONSULTATION MAY AS WELL HAVE NOT EXISTED—The preceding unsigned comment was added by Egg Centric (talk) 20:56, 25 April 2012‎

I'd like to ask you to scroll to the top of the page and click on the latest archive pages. There has been an enormous amount of users engaged in the discussion; of course there will always be users who haven't noticed the debate (which has been going on for, what is it? half a year?). But how exactly is anyone supposed to counter that? As to your second point, that's a misunderstanding on your side. The Terms of Use cannot avoid that you are brought to court in Burma (which is also what the TOU say: they inform you as a user that you might be brought to court in jurisdictions all around the world). —Pill (talk) 22:31, 25 April 2012 (UTC)

I think that you guys should expect a lot more of this though. Putting a site notice on en.wikipedia with the approaching deadline after the comment period has closed seems like... well, not the brightest idea. I understand the point that "an enormous amount of users engaged in the discussion", but... there is an even more enormous number of users who knew absolutely nothing about this before the site notice was displayed (incidentally, there are a number of users who hide the fundraising notices. Since this notice used the same CSS as the fundraising, there are going to be a lot of established users who haven't even see this latest site notice).Ohms law (talk) 23:10, 25 April 2012 (UTC)

There was an invitation to discuss this. For months. People who complain now should simply go bite their own asses for not paying attention. Seb az86556 (talk) 23:16, 25 April 2012 (UTC)

Where was this mythical "invitation"? Esetzer (talk) 04:24, 26 April 2012 (UTC)

In the mythical place you were apparently able to find this notification. Seb az86556 (talk) 14:54, 26 April 2012 (UTC)

As I said in my earlier comment in this same section, I only found this discussion after I guessed the URL of this page. Most editors probably do not know enough about Wikimedia's DNS layout to guess "meta.mediawiki.org"... and guessing should not be needed at all, especially since editors with no reason to think that such a discussion is happening anywhere (like me before I saw the banner yesterday) are not going to think of guessing URLs. Esetzer (talk) 16:17, 26 April 2012 (UTC)

There was a link to this very page, no guess-work was needed. Seb az86556 (talk) 16:19, 26 April 2012 (UTC)

There may have been links to this page at some time and in some places, but were any placed anywhere where ordinary readers and editors were likely to see them? When the current (pre-May25th) terms of use were created (in connection with the CC-BY-SA licensing), the process was advertised all over on banners, the page footers, and elsewhere for at least a year; readers and editors had every reason to expect a similar notification campaign for any revision of the terms of use. Esetzer (talk) 16:42, 26 April 2012 (UTC)

I just wanted to say that Esetzer isn't saying anything crazy here. Egg Centric and myself came here through a link on the English Wikipedia's Village Pump (Technical). The global message (or whatever it is) on en.wikipedia has a link that takes readers to a dead end at wikipediafoundation.org, not here to meta. I take Esetzer at his word that he had to guess how to get here, as finding out that meta exists at all takes some work (which is something that I think many of us who are "in the know", so to speak, very much tend to take for granted).Ohms law (talk) 22:21, 26 April 2012 (UTC)

I don't think Esetzer is saying anything crazy there - I agree that notices of the process were rather minimal for the relative impact of the new policy. A cynic might conjecture the Wikimedia Foundation didn't really want to hear much, a view supported by the current notice. But that being said, what do people want in terms of action? A protest like the one against the sexual images restriction proposals? If so, go for it. I don't give it much chance of success, but I've been wrong before. What do you want to change through the discussion process, that hadn't been advocated and failed in what did happen? Much of this strikes me as people who have been fed a certain populism being upset to find out that the supposed movement leaders are concerned for their own interest, rather than that of The People. Maybe I'm not a good organizer, but if so, complaining to those selfsame empire-builders that they aren't being good democrats seems to me not effective tactics (granted, it's understandable emotionally). -- Seth Finkelstein (talk) 22:40, 26 April 2012 (UTC)

My reason for insisting on continued discussion is that a Wikimedia based on the new terms of use is not a Wikimedia that I can participate in (in particular, I will be excluded from the "anyone" in "the encyclopedia that anyone can edit"). Anyone else with something like my combination of ideological commitment and legal paranoia will also be excluded. We may be the first identifiable group to be excluded based on issues other than serious disabilities, technical ignorance, political internet censorship, or poverty. As such, my commenting is motivated by the hope that it could lead to one of various better outcomes, such as: continuing with the current (copyright-only) "terms of use," eventual implementation of a totally revised new set of (better, simpler) terms, the splitting of the Wikimedia Foundation into competing hosts within a larger distributed encyclopedia system, formation a viable fork (preferably distributed), or just a delay in the terms' enactment. The most obvious mechanisms by which further discussion might lead to outcomes like this include causing the Foundation to worry that donors will not like their handling of the situation and letting people with objections know they are not alone in order to coordinate opposition (or distributed systems development...). Sympathy with my reasons for commenting is of course not a prerequisite for sympathy with many of my more specific comments; most notably it is not a prerequisite for my arguments (and those of Egg Centric, et al) that far more notice of the proposed changes should have been given on each of the project wikis. Esetzer (talk) 00:26, 27 April 2012 (UTC)

You are only excluding yourself, and you are of course free to do so. Seb az86556 (talk) 03:01, 27 April 2012 (UTC)

Yes, and if someone has changed the font encoding in her browser so that she only sees Chinese symbols, she also won't notice. The fact that these TOU were put up for a month-long debate in the Community is not something you should take for granted. It is rather extrordinary in itself. The process was heavily advertised (blogs, the signpost, etc.); if you haven't noticed until now, that's unfortunate, but it is an entirely normal process anyway (and one you know from basically any other website) that users are simply confronted with new terms of service. It's a pity you couldn't contribute to the development, but I don't think you can expect from a website owner to discuss changes to its TOU with you at all. —Pill (talk) 23:36, 25 April 2012 (UTC)

Half and half. There was some publicity, but not like the Wikimedia Foundation really wanted to have everyone piling in. However, given the amount of circular discussion there was, I don't see that spinning the centrifuge yet again is going to distill anything further. -- Seth Finkelstein (talk) 23:40, 25 April 2012 (UTC)

Be that as it may, I get to say "I told you so" now that I've said the above. ;-) Ohms law (talk) 00:17, 26 April 2012 (UTC)

The discussion started in September 2011 and "ended" in January 2012. The Board adopted it in March 2012.

I think the most important fact for latecomers to realize is this: Changing the TOU update requires a vote from the Board. The TOU goes into effect in May. The next Board meeting is in July. There is no way for them to stop this.

Beyond that, I'm with Seth: spending another month talking about this is extremely unlikely to produce useful results. For example, nothing the WMF ever does or says is going to magically make someone immune from the laws of their home country. WhatamIdoing (talk) 23:47, 25 April 2012 (UTC)

As people have told you here and elsewhere, if you don't want there to be any chance you can be indicted in another country then you need to stop contributing to Wikipedia right now. The terms of use are very unlikely to affect where you can be indicted and there was never any suggestion the foundation was indemnifying you (which most likely doesn't help you in a criminal case anyway). The fact that you mistakenly believed you aren't subject to other countries laws particularly your own due to your own actions is a very unfortunate misconception which it's a good thing these TOU are correcting. Nil Einne (talk) 17:41, 26 April 2012 (UTC)

I have many things to say about how the Foundation totally failed to inform me and other editors about this earlier, but I will start with a suggestion that could be implemented right now to improve the situation. After seeing the banner at the top of a Wikipedia page today, it took me a long time to find this discussion page; in fact, I essentially just guessed the URL of it eventually. The banner should have a link to this page to increase the page's contributer base beyond the current cabal-plus-a-few. Esetzer (talk) 03:24, 26 April 2012 (UTC)

I would support a second commenting period. --Michaeldsuarez (talk) 12:19, 26 April 2012 (UTC)

not gonna happen; there'll always be someone screaming how they missed the notice and now want to postpone it. Seb az86556 (talk) 14:53, 26 April 2012 (UTC)

It's not surprising that Esetzer didn't know about this. He's only made a few hundred edits (all projects combined) and was basically a newbie when these discussions started. Additionally, he hasn't chosen to involve himself in any policy- or management-related activities on an site (e.g., by following the Village Pumps), so he missed the reeated announcements in the usual places. Candidly, givem the complete lack of knowledge or experience with the community management, he's exactly the kind of user who shouldn't be trying to draft terms for this complex situation. And you might have noticed that he hasn't raised any points of concern at all, much less any new points. His only complaint so far is that he didn't get to talk about it. WhatamIdoing (talk) 17:03, 26 April 2012 (UTC)

As I overtly emphasized in my most recent comment (at 16:42) above, the terms of use affect everyone using Wikipedia, not just Foundation employees, not just administrators, not just experienced editors, not just registered editors, not just editors who speak English, and not just editors. If you think that involving only people who regularly read meta.wikimedia.org news feeds is a sufficient contributor base for these legal discussions, you (or at least whoever wrote "Congratulations to you, the community" at the top of this page) are confusing "community" with "cabal". Esetzer (talk) 17:23, 26 April 2012 (UTC)

I feel compelled to point out that there is an existing ToU for Wikipedia, and that this is a change not a completely new addition. @Phil, Seb, WhatamIdoing, and others, my only point here has been to try to warn you all that there's likely to be a lot more of this kind of griping. It would have been better not to make an announcement at all, considering the situation. Ohms law (talk) 22:26, 26 April 2012 (UTC)

Not doing a notification announcement would have been inconsistent with our values, as well as not (as I understand it) complying with legal requirements for disclosure about change to TOS/TOU. --Philippe (talk) 18:45, 28 April 2012 (UTC)

There is a discussion on this and related topics at wikipedia:en:User_talk:Jimbo Wales. Esetzer (talk) 05:35, 19 May 2012 (UTC)

Esetzer, the cossacks, they work for the Czar - sigh, to be tedious, I should make clear that I'm not calling anyone a cossack, but that's an idiom which means "There's no use going to the organization's top to complain about its actions, he or she approves and will back them against you". Myself, I'm not unsympathetic to your concerns overall. But you have an extremely difficult task ahead of you if you want to oppose this Terms Of Use, which will not be served by any appeal to the very authorities who have every incentive to do what they are doing. -- Seth Finkelstein (talk) 06:34, 19 May 2012 (UTC)

I do not really expect that he will instantly turn against the board on this issue, but as someone with only a week left to use my account, I want to show that there is community support for things like his second principle (at least there is until that part of the community is excluded...). Even if it has no effect on this issue, it may improve the outcome of future decisions. Authorities may have short term incentives for things they do without having long term incentives for them (which I have suggested the Foundation does not). Esetzer (talk) 16:23, 19 May 2012 (UTC)

Esetzer, did you know that Jimmy Wales is a member of the Board? The very same Board that voted unanimously to approve these Terms? If Wales didn't already support this, he would never have voted for it. WhatamIdoing (talk) 20:08, 19 May 2012 (UTC)

That is why I said "turn against". Esetzer (talk) 20:28, 19 May 2012 (UTC)

If you "want to show that there is community support", my advice is that you'll have to Lead A Movement, or at least, get some sort of external pressure exerted, towards your conception of what should be done. Otherwise, at best, you'll simply be ignored and dismissed, and at worst, derided and attacked with various name-calling or even be fair-game for smears. But so far, there's not been anything that isn't trivial to dismiss. It's conceivable that could change with the right campaign, though again I'd say it would be very difficult. However, to repeat, asking the people pushing it through to reconsider at this point is working the wrong side of the process. -- Seth Finkelstein (talk) 20:40, 19 May 2012 (UTC)

Minutes

Why are there no minutes, nor even a placeholder, listed on wikimediafoundation.org/wiki/Meetings for the March 5 meeting at which the Terms of Use resolution supposedly was passed? Esetzer (talk) 22:42, 21 May 2012 (UTC)

I don't know what the WMF's practice is, but it is normal practice not to publish the minutes from a Board meeting until the minutes have been formally approved by the Board. This action normally takes place at the start of the next meeting. WhatamIdoing (talk) 16:55, 22 May 2012 (UTC)

Other recent and planned meetings have placeholder links, but nothing is listed for May 5th at all. Esetzer (talk) 17:46, 22 May 2012 (UTC)

I meant March 5th. Esetzer (talk) 17:51, 22 May 2012 (UTC)

I don't think this is meaningful. I believe that the minutes will appear on the same, routine schedule that they always have in the past. It's not difficult to create the pages, after all. We'll just have to wait until after the July meeting.

Also, I don't think you're going to learn much from the minutes. They are a simple, plain record of decisions made. If the staff had misrepresented the decision the Board took, I think we would have heard about it by now. WhatamIdoing (talk) 16:38, 23 May 2012 (UTC)

Hi Esetzer and all, the new Terms of Use was approved outside of a regular meeting, with online voting on a resolution -- this is how we conduct much of our business, since the Board does not meet very often. The resolution can be found here: http://wikimediafoundation.org/wiki/Resolution:Terms_of_use Thanks, phoebe | talk 19:37, 24 May 2012 (UTC) (WMF Board Secretary 2011-12)

Terms of Use are for users what SOPA is for the Foundation

The Wikimedia Foundation protested wikipedia:en:SOPA because it would have forced them to take on substantial liability for each user-provided link (given the risk that any given user-provided link might turn out to constitute contributory copyright infringement by the act's very strict definition), but it now proposes Terms of Use for its own users that force them to take on substantial liability for what they submit to the site (links and other things) beyond that that governments already force them to accept. The Foundation should reconsider the Terms of Use if it does not want to be seen as hypocritical, as unresponsive to user needs, as supportive of SOPA-like proposals provided it gets an exception, or as generally favoring the rights and privileges of wikipedia:en:corporate persons over those of wikipedia:en:natural persons in any dispute.

Note that the widespread opposition to SOPA reflects how hard it is for the Foundation and for other website operators to police hosted postings (even when the operators agree with the law they are enforcing, more-so when they don't) due to the number of postings, but policing (their own) submitted postings is equally hard for many users (even when they agree with the policies, more-so when they don't) due to their disinclination to read documents such as the Terms of Use and various documents referenced by it and (more fundamentally) due to their lack of legal knowledge that would allow them to interpret the documents. Opposition to the new Terms of Use does not seem anywhere near as substantial as opposition to SOPA was (considering the scope of the two policies), partially due to the Foundation's skill (or dumb luck?) at making decisions look representative through preemptive canvassing, etc. (In particular, we do not want the congressional advocates of SOPA to learn anything from the way the Terms of Use were developed.)... What can we learn from these policy debates that would help (rather than hinder) the next time an wikipedia:en:unfunded mandate for self-policing is proposed? Esetzer (talk) 17:55, 23 May 2012 (UTC)

Esetzer, to simplify for one sentence, the Wikimedia Foundation protested SOPA because Google (and others) wanted to do so, as it could have cost Google a humongous sum in liability for infringement, and the rest was just propaganda they fed the little people to get them going along - this is painfully obvious now with the deafening silence about the "CIPSA" security bill. The WMF doesn't care about being seen as hypocritical, etc. - that's being said right now at far higher levels than this page. However, nobody with a lot of power is pushing opposition these Terms of Use, in the same way Google opposed SOPA. What you learn is things about politics and power. But this page is basically talking to the wrong people about it. -- Seth Finkelstein (talk) 07:56, 24 May 2012 (UTC)

Seth, I was the guy in the room during our decisions about what to do about SOPA. We didn't decide to protest because Google wanted to... and in fact, if you'll recall, we didn't decide to protest at all. I opened an RFC for the community, which was closed by three community administrators. We followed the community's lead. Your historical rewrite is inaccurate. Philippe (WMF) (talk) 14:34, 25 May 2012 (UTC)

Philippe, while I understand the political and legal imperatives which impel that PR line, please do not insult my intelligence or standing (I'm not sure which) by attempting to have me swallow it. I followed the process throughout, and if you recall, gave you a personal pass on actions of yours which could easily have been misunderstood or misconstrued (this should establish my bona-fides). Now, this page is not the place to re-argue SOPA, but the WMF engaged in a ridiculous amount of manipulation to push the protest, and the Google aspect is like oil in the Middle East (i.e. a major events driver, but a cause for marginalization from polite society if one even mentions it). I'm not leading a crusade against it, in part because I'm torn over the end-vs-means dilemma. But you're not dealing with someone who must take a WMF statement at face value because of either not knowing any better or social constraints to be a stenographer. -- Seth Finkelstein (talk) 12:50, 26 May 2012 (UTC)

Where's the WMF?

As far as I'm aware, there hasn't been a comment from the WMF since April 25th. Shouldn't they be answering questions and examining suggestions? The most recent discussions don't have any official input from the WMF. --Michaeldsuarez (talk) 11:54, 24 May 2012 (UTC)

You missed one by Philippe on the 28th.

Why should WMF staff be posting on this page? I don't believe that there are any outstanding questions that can be answered. ("I hate it and want you to get rid of it" isn't a question.) What would you expect them to post? Something like "Dear Esetzer, on behalf of the staff, we officially disagree with you"? That doesn't seem very productive. Maybe "Dear Esetzer, Seth is correct"? That kind of seems like a waste of time. WhatamIdoing (talk) 17:02, 24 May 2012 (UTC)

I !vote in favor of WMF staff posting "Seth is correct" :-). It would be quite a change from what I usually get from them ;-) -- Seth Finkelstein (talk) 00:48, 25 May 2012 (UTC)

I simply want a sign that the WMF is actually listening. I want to know whether they actually care or not. I'm tired of responses from volunteers such as yourself; I want real, meaningful statements from WMF employees. Having the WMF say, "Dear Esetzer, on behalf of the staff, we officially disagree with you," would be much better than having the WMF hide, avoid making statements that would offend or upset some people, and hope that volunteers such as yourself would settle things in their stead. WhatamIdoing, you need to allow the WMF to defend themselves. Every time you provide an unofficial answer, you also provide the WMF with an excuse not to provide an official answer. --Michaeldsuarez (talk) 17:52, 24 May 2012 (UTC)

(Edit conflict.) Hi, Michael, WhatamIdoing. :) The WMF is listening, but do not always engage where volunteers are able to do so...and are. This provides for more scalability and is the message that they think is right for Wikimedia as a volunteer focused organization. They feel that the volunteers who are responding here and at other discussions - some of whom were here firsthand as key, active participants in the development of the document - have as much to say about the situation as staff. The discussion period about the Terms of Use closed, as you know, on December 31st. The Terms of Use that are being implemented tomorrow are the result of extensive and prolonged discussions with community and have the unanimous support of the Board. While there may be changes implemented in the future as consensus develops, the Terms that will be implemented tomorrow are settled. --Maggie Dennis (WMF) (talk) 18:23, 24 May 2012 (UTC)

What you've said only confirms what I've said: Every time [an volunteer] provide an unofficial answer, [that volunteer] also provide the WMF with an excuse not to provide an official answer. When I pick up the phone and call a company about a problem with their product, I don't want the person on the other side of the line to be a random village idiot. In such a situation, I would want to speak to someone with authority (the ability to make promises / agreements) and who I can hold accountability for failing to uphold a promise / agreement. --Michaeldsuarez (talk) 18:57, 24 May 2012 (UTC)

Fortunately for us, we don't have to worry about that so much. Volunteers handle almost all of the correspondence for the Wikimedia Foundation. Even some that are addressed directly to staff wind up being transferred to volunteers. When they can answer, there's no reason why they should not, and there are neither promises nor agreements being made at this stage. Comments like that are a bit perplexing to me, given the nature of the crowdsourced/volunteer driven mission we've got going. :/ It's a wiki, after all. --Maggie Dennis (WMF) (talk) 20:25, 24 May 2012 (UTC)

Mdennis, part of the problem with volunteer answers is the "nobody home" effect. It's a lack of accountability. If the answer is bad or misleading, or even abusive, WMF can just deny responsibility, as the answer didn't come from WMF staff. Indeed, I think this is a problem with wiki-way in general - poor quality control. The issue does become more significant when it comes to legal matters, such as these Terms of Use. Yes, I think the WMF should have the courage to re-iterate "The Terms of Use are for us, WMF, not for you, editors, We are now a multimillion-dollar organization and a political player, so we need to lawyer-up like one". Not necessarily so bluntly, of course. But having volunteers carry the water, strategic as it may be, is a specific notable choice. -- Seth Finkelstein (talk) 00:48, 25 May 2012 (UTC)

Seth, while I am still here, Philippe has recently spoken up, and Phoebe has also answered a question, this isn't the forum to address the Wikimedia Foundation. I think Geoff tried to make that clear to avoid misunderstandings when he wrote for the box at the top of the page "All comments after this date unfortunately may not be reviewed." He is keenly interested in the community, but I know from first-hand observation that that man is also insanely busy. There's a whole lot of work for a small team of lawyers in the 5th-most-accessed suite of websites in the world. :) That said, I think your perspective on the purpose of these Terms of Use does not match his....I know it doesn't match mine. I have first-hand knowledge that some parts of these Terms of Use were written with community requests - requests that came through the liaison address - in mind. Their intent, as I understand it, is to protect the mission, which is not the same thing as the Wikimedia Foundation, although protecting the Wikimedia Foundation is certainly an important part of it. --Maggie Dennis (WMF) (talk) 10:54, 25 May 2012 (UTC)

Surely, you guys must've foreseen that more questions and comments would've been made here during the time that the announcement banner was at the top of every Wikimedia page. You guys were seriously going to leave this talk page mostly unattended by WMF staff? Personally, I'm surprised that there wasn't more activity on this page, but I guess that's because you guys were directing users to a feedback page that most users didn't know how to reach: [1], [2], [3], [4], [5]. --Michaeldsuarez (talk) 14:46, 25 May 2012 (UTC)

Michael, of course we assumed there would be more questions - we also knew that the volunteers who were deeply engaged in writing these terms could answer the questions well - as they have. Philippe (WMF) (talk) 14:55, 25 May 2012 (UTC)

Agreeing with Philippe, of course, I have to say that I don't quite understand your last sentence: if we're directing them to the Foundation wiki feedback page, which has long existed for the purpose of giving feedback on things published on the Foundation wiki, why wouldn't they know where to find it? :/ --Maggie Dennis (WMF) (talk) 15:10, 25 May 2012 (UTC)

Mdennis, I don't think anyone said that Geoff in specific had to respond. There's a wide range between matters demanding the personal attention of the General Counsel, and hey, anyone who wants to try to respond; no accountability, no responsibility - no problem. I freely admit I am a jaded and cynical person, and I thought I made it clear I was being colorful in my phrasing. Nonetheless, there is a underlying issue which has come up repeatedly in discussion, Esetzer being merely the most recent, regarding (mis)conceptions of the purpose of the Terms Of Use (I should disclaim I personally believe these people are using the wrong tactics, but I can see their point of view and sympathize). I do think the WMF is tending to shy away from it, as the implications are disturbing and tends to generate many contentious comments destined to be ignored. On a human level, I can't blame anyone for that, and I can certainly understand the very-busy/not-productive-use-of-time feeling. But on the other hand, many requests that were made don't strike me as unduly burdensome, with fair social reasoning behind making them. It is entirely possible to have an unpleasant unproductive duty to do, which should be done by someone in the organization for reasons of responsibility, even if in some abstract sense it would be more economically efficient to fob it off elsewhere. That's what I see going on in this instance. -- Seth Finkelstein (talk) 13:18, 26 May 2012 (UTC)

Seth, if there is an actual question that needs answering by Geoff Brigham or other staff who are not here, I am happy to draw it to their attention (I've been checking in on this page a couple of times a week to see if issues arose that the community couldn't address, but there's always the possibility that I've overlooked something). But Geoff had already set out the purpose of the Terms of Use in the section preserved at #Reasons for the New Terms of Use. --Maggie Dennis (WMF) (talk) 16:10, 26 May 2012 (UTC)

i don't think #English Original is a particularly unreasonable request, by the way. —Pill (talk) 18:22, 24 May 2012 (UTC)

User:Pill, I don't think it's an unreasonable suggestion. As I understand it, changes of substance to the document or the Summary are not being considered until after the deployment, given the Board's resolution and endorsement. What you're talking about as a banner at the top of the page may be doable, since it would not require a change of substance. I'll bring it to Geoff's attention, although he is traveling and may not be able to attend to it for several days. :) --Maggie Dennis (WMF) (talk) 18:34, 24 May 2012 (UTC)

Sure, I wouldn't have made the proposal if it required a change to the terms of use; but as you say, it really does not require any change at all. There's no particular urgency, too, it'd just be nice ... if you seriously need to consult the terms of use for legal discussions etc., you need the English original, not some translation, that's why I think this would be rather helpful. In any case, thanks for your reply, —Pill (talk) 19:06, 24 May 2012 (UTC)

I've written. I'll get back with you as soon as I get a response. :) --Maggie Dennis (WMF) (talk) 20:25, 24 May 2012 (UTC)

http://meta.wikimedia.org/w/index.php?title=Talk:Terms_of_use&diff=3786097&oldid=3786029 – This is why official responses from WMF members are better than unofficial responses from volunteers. There are questions and concerns that volunteers such as WhatamIdoing can't answer or address satisfactory. --Michaeldsuarez (talk) 19:51, 24 May 2012 (UTC)

Do you still have any questions that you would like to have answered, or is the lack of personal attention from paid staff a sort of general or hypothetical complaint? WhatamIdoing (talk) 14:18, 25 May 2012 (UTC)

Talk:Terms_of_use/Archives/2011-10-11#I_wish_to_speak_to_management – You failed to understand why I was complaining in late September 2011, and you're failing to understand now. I don't believe that you'll ever understand. --Michaeldsuarez (talk) 14:24, 25 May 2012 (UTC)

I have to say, I'm saddened by this whole section. WMF staff is very small - and we're doing ten thousand things, all very important. Volunteers provide scalability, domain expertise, and - more to the point - buy-in. Wikimedia projects have always considered volunteers to be the lifeblood of them; the day when people refuse to talk to volunteers and defer to staff is a sad day indeed. Philippe (WMF) (talk) 14:32, 25 May 2012 (UTC)

Michael: I have followed this discussion closely and I haven't actually seen any coherent questions being posed. Esetzer has written a lot but, in spite of numerous prompts from me and others, he hasn't come up with any questions related to the wording of the Terms Of Use but has confined his contributions to complaints about how the review process was advertised and slightly incoherent commentary on Terms of Use in general and how they are incompatible with free culture (at least I think that is what he was saying). Niether of these need a response from the WMF staff. All of this has been said by WhatAmIDoing above but I thought I would say it too and make clear that I agree with her. If you have a question on the wording of the TOU then start a new section with that question. If there is a real issue, than hasn't been addressed in the archives, then I have no doubt that WMF staff will come and respond to it. Filceolaire (talk) 15:38, 25 May 2012 (UTC)

Here, I think Michael just wants some official attention, or at least some evidence that the staff was reading the page. Previously, his pleas for silence from non-staff members seemed to be based on the idea that answers from staff members constituted "promises on the Foundation's behalf" so that "we can hold them to their word", which is both wrong (most staff don't have the authority to bind the organization) and irrelevant (most replies don't make any sort of promise).

I am glad that Michael has confirmed that there aren't any unanswered questions. WhatamIdoing (talk) 17:57, 26 May 2012 (UTC)

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Whatever. This thread already accomplished its goal: [6], [7], [8]. There were unanswered question, but thanks to my complaints, the WMF answered them. It's unfortunate that you resorted to berating users such as Esetzer and me. Esetzer has retired: [9]. You and the WMF have failed a community member. I was only trying to help. --Michaeldsuarez (talk) 22:36, 27 May 2012 (UTC)

Esetzer made clear from his or her first post that he or she would leave if the Terms of Use were enacted: "I will not even use Wikipedia, as hosted by the foundation, as a read-only visitor if this change is enacted." I'm very sorry that he or she is unwilling to accept the Terms, but in a project of this size, some disagreement is inevitable, I'm afraid. :/ I believe one of the purposes of the 30 day notice prior to implementation was to allow users an opportunity to review the new Terms and make an informed decision about their continued participation under them. Maybe at some point Esetzer will change his or her mind. --Maggie Dennis (WMF) (talk) 01:53, 28 May 2012 (UTC)

Where was the WMF when Esetzer needed comfort and reassurance? Perhaps you could've reasoned with him or her. Were Wikimedia staff members aware of Esetzer's post? "The WMF is listening." Instead of intervening, the WMF simply listened to the sound of Esetzer's heart breaking. Where was the WMF when Esetzer needed them most? I guessing that the WMF remained silence because they came to the following conclusion: "Why should we risk saying anything that might offend, upset, or disappoint some users when a volunteer could do the offending, upsetting, and disappointing in our place?" Was the WMF afraid of directly confronting Esetzer and his or her views? Even if they had believed that losing Esetzer was inevitable, the least that the WMF could've done was talk to him or her, but the WMF didn't even do that. Meanwhile, the WMF is constructing more tools and features (e.g. New Page Triage) for the purpose of retaining its users. --Michaeldsuarez (talk) 02:48, 28 May 2012 (UTC)

Michael: I was one of the volunteers who responded to Esetzer and I'm upset that you accuse me of offending him/her though I may have disappointed him/her as I never did manage to get a coherent argument I could respond to from Esetzer. I really did try though, over and over again. I thought I was really patient. Filceolaire (talk) 06:27, 28 May 2012 (UTC)

I do not believe that it was possible for the WMF to intervene in a way that would have resulted in Esetzer's continued participation. (I'm also suspicious of Esetzer's claim that he'll never use the WMF's websites again: most resignation manifestos are lies. But perhaps he really will leave, rather than just saying he will.)

But even if it were within the paid staff's power to retain every single user, I'm not convinced that it is an appropriate use of their time. This is a goal-oriented project, not a religion. The WMF staff are not the Good Shepherd, and it is not their job to reenact the en:Parable of the Lost Sheep when one user (out of many tens of thousands) chooses to leave. They've got work to do, and 0.1% of their time is more important than 0.0001% of the user base. WhatamIdoing (talk) 13:40, 28 May 2012 (UTC)