Talk:Wikimedia and Mandrakesoft (draft agreement)

Second draft at Wikimedia_and_Mandrakesoft_(2nd_draft_agreement). villy 18:24, 13 Oct 2004 (UTC)

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Obligations: "Wikimedia s'oblige à fournir... la version la plus à jour des sites"

Obligations: "Wikimedia obliges to provide... the most up to date version of the sites"

Perhaps we should mention here that we are not providing the whole content of the sites. There are many images which will be removed for being fair use or otherwise unsuitable. Also, could we specify that the content we are giving them is only the main namespace (and I think the template namespace will need to be included), not the Wikipedia pages or user pages.

Right, this is an important point I didn't know. I'll make modifications accordingly ASAP. villy 22:06, 5 Oct 2004 (UTC)

Clause de non-responsabilité: "Wikimedia s'efforcera de fournir un contenu vérifié par la communauté de ses contributeurs" et "Wikimedia s'efforcera de fournir un contenu exempt de violations du copyright"

Clause of non-responsibility: " Wikimedia will endeavour to provide contents checked by the community of its contributors" and "Wikimedia will endeavour to provide contents free from violations of the copyright"

I'm not sure we will endeavour to do this. We're just handing it over unchecked. These sentences make it sound like we are trying to do more than we really are. Perhaps we ought to be more explicit about the likelihood of copyright violations existing.

You're right. It's probably better to do our best to actually check up but not to bind ourselves legally. I'll reword it, or erase it. villy 22:06, 5 Oct 2004 (UTC)

Loi applicable: "e présent accord est soumis à la loi française"

Applicable law: "This agreement is subjected to the French law"

Is it necessary to go with French rather than American law. Would we benefit by going with American instead? Angela 14:37, 5 Oct 2004 (UTC)

This is a very important matter. I considered : 1°) that I can handle French law and not US law, and that it would be better to control what will actually be signed 2°) that Mandrake being a French company having its assets on the French territory, they would feel more comfrotable as well. The Board must decide on this matter and let me know. But since I haven't got any qualifications related to US law, if US law is chosen it'd be more cautious to take advice from a US lawyer or to let me enough time to get in touch with a US colleague of mine. villy 22:06, 5 Oct 2004 (UTC)

I strongly insist on the fact that this text is a draft and can't be signed on this basis. And I would really feel much more comfy if I knew about the financial conditions and if I could be sure that before signing anything based on this draft I was asked about a final revision of the text. Thanks. villy 22:22, 5 Oct 2004 (UTC)

About images

We want to provide only image at the size used in article but licence cause trouble. Either we add image belonging to one licence (GFDL or DP) and we can specify in one place the licence or we will need to provide an explicit licence for each image Phe 15:57, 6 Oct 2004 (UTC)

Inappropriate license restrictions?

Clause 2 (Durée) seems to be making additional restrictions on what Mandrake can do with the GFDL-licensed material that makes up Wikipedia. Does this violate the license? If so, it could terminate the foundation's right to redistribute these materials -- please remember that the foundation doesn't own the material on these sites, it is merely licensed by the contributors for redistribution. (IANAL, but am very concerned and would appreciate an explanation.) --Brion VIBBER 18:28, 6 Oct 2004 (UTC)

It's not about what Mandrake can do with the GFDL-licensed material but about what Mandrake can do with the Wikipedia label on it, which is quite different in my opinion. Mandrake could very well, like others, take the contents as it is, and make their business out of it. They don't, they want more: the label itself. Mandrake could perfectly well continue to market the contents after one year - only, they have to withdraw the Wikipedia label. Could Mandrake make whatever they want with the contents only complying GDFL ? Sure, but it is not the same with Wikipedia label. So to make it short, I think this issue is not related to GFDL, which is untouched here in my opinion, but is related to the use of the brand Wikipedia.

But let's say it's related to GFDL anyway. How the license is to be read as to a moving content ? What about an article called Apple which goes An apple is round on Jan. 1st 2004 and which goes An apple is round and red on Jan. 1st 2005 ? Would it be against GDFL to apply its provisions to the actual content and not to the dead one (I say dead on purpose, because except through the history page - which is an informative technical tool IMO, the article is encycopedic only in its actual version). So again, I don't see what's bad with a one year duration in this draft. Things would have been *completely* different of course if the contents were exactly the same from one year to another. But evolution and change are, I think, in the nature of Wikipedia. Maybe Jamesday could tell us his point of view here :)

villy 20:16, 6 Oct 2004 (UTC)

I'm not a native french speaker or a lawyer so maybe I'm just reading it wrong, but here's the operative part of the clause: "Au-delà de cette date, Mandrakesoft s'interdit de continuer la commercialisation du contenu." (emphasis added) It doesn't say "stop using our trademark after a year", it says to stop selling the content commercially after a year. For that matter I don't see anything relating to trademarks or the "Wikipedia" name being involved, but maybe I'm just missing it.

I don't think the claim that no one would want old stuff anyway is legitimate; the license doesn't cease to be valid after a year, regardless of whether there's a new version or not. --Brion VIBBER 20:29, 6 Oct 2004 (UTC)

Improvements

In order to improve the safety of the agreement, and to respond to Jamesday fair concerns, I'll put something stating clearly that MDK can choose to market the DVD or not, or to market only part of it. Provision 3 about price and payment will be modified accordingly. Is there any other improvements suggested ? villy 20:25, 6 Oct 2004 (UTC)

Needs to be explicit about trademarks, and avoid placing restrictions on the use of licensed content that the foundation cannot make without its license being terminated. --Brion VIBBER 20:40, 6 Oct 2004 (UTC)

The payment is not for service, it's a donation to the foundation. Mandrakesoft agreed to this. Yann 20:43, 6 Oct 2004 (UTC)

James' suggestion

Comments in italic, this one is intended to be very clear about who is providing what and to make the chance for legal attacks on the Foundation as small as possible

1. General

This is an agreement allowing Mandrakesoft to use the Wikimedia Foundation trademark "Wikipedia" in Mandrakesoft's distribution of the contents of that work as part of it's insert name, version, date or other identifying information about the Mandrakesoft distribution.

oh no. Far too large. You're mentionning "that" work. Where is it defined beforehand ? It's necessary to be exact here. Use of Wikimedia Foundation trademark "Wikipedia" has to be related to the encyclopedia, not to a general work (and it's rather ambiguous, I'm not even sure if work applies to Mandrake soft or to Wiki contents). Above all, they have no rights to use the trademark without the contents, and this should be specified. Besides, the actual deal is to allow them to provide it online, and not only in the distribution, as far as I know. villy 21:40, 7 Oct 2004 (UTC)

Worth clarifying that "that work" is the "Wikipedia". Agree with your other comments as well. Jamesday 21:31, 8 Oct 2004 (UTC)

2. Content

The Wikimedia Foundation is a non-exclusive GNU Free Documentation License (GFDL) holder to the content of the work. As a licensee itself, it cannot grant Mandrakesoft a license to use the content but can and does encourage the copyright holders who have produced the work to assist Mandrakesoft with the Mandrakesoft publication of the work.

This part belongs to the General Statement. Besides, providing that any agreement must be written in order to anticipate a future conflict/trial, it is crucial to present extensively the parties (what are their activities, their goal, what is the purpose of the agreement) in order not to let a judge make wrong interpretation of the general situation but to lead him to what the parties had in *mind* when signing. And a general statement is the only place in an agreement to do that. So here, it's outrageously too short :) My version maybe wrong in some parts but it tries to explain what Wikimedia actually is and make. Could you make it longer Jamesday ? villy 21:40, 7 Oct 2004 (UTC)

Makes sense. I'll expand it in another draft below, then look forward to the French master draft you produce tomorrow. Jamesday 21:31, 8 Oct 2004 (UTC)

Some of those who have produced the work are assisting Mandrakesoft by producing a CD of the work for Mandrakesoft. It is expected that this will be ready before November 15, 2004 but the Wikimedia Foundation is not involved in producing it and can do no more than encourage its production.

Nice try but useless. Suppose it's true, why aren't those people (producing the CD) themselves parties to the agreement and what is it that allows WFoundation to speak for them in the agreement, even in a purely informative manner ? And how come that this very CD produced by almost strangers is the legal cause or motive to Mandrake "donation" ? Not to mention that Mandrake has the ability (staff, technical tools) to make a CD by its own from the Web wiki contents, so why on earth is WFoundation even speaking about the whole thing ? For one reason, that makes the whole provision false : the CD is actually made on WFoundation demand, problably financially supported by WFoundation (this point should be clarified though) and at any rate by people thinking they're acting on the behalf of Foundation ... A false statement, even if convenient, isn't a good idea in my opinion. villy 21:40, 7 Oct 2004 (UTC)

Yet Yann who is working with Mandrakesoft says it is a donation, so how can I write something different? I must say what the parties agree, even if I know that the two arrangements are linked in human minds. What happens if Madrakesoft stops paying? I have asked Yann. The answer to that question will tell us what the agreement must say. I suppose I should write two versions, one where the two are linked in contract as well as minds, one where they are not. Mandrakesoft has staff but not expertise with the MediaWiki software tools. The CD is, I think, not really made on Wikimedia Foundation demand - I think it is more on the demand of Wikipedia contributors who want Mandrakesoft to distribute the CD, after Mandrakesoft said it was interested. Then the Wikimedia Foundation is asked to provide a license to use the Wikipedia name. The Foundation has done very little to support it, except blessing it and offering this agreement - the work has been done by the content contributors, not the Foundation or any Foundation employees. The people producing the CDs aren't parties to this agrement because they are not the trademark holders and this agreement is only about the trademark. The Wikimedia Foundation is just another GFDL licensee of the content, it has no role in a content license - it can't do more than say that it has a GFDL license, so does everyone else. And this should be in the general statement...:) Jamesday 21:31, 8 Oct 2004 (UTC)

You can say that if any selection is made, it's on the demand of MDKS. I think something like on the request and par Mandrakesoft instructions would pretend any problems. I think I could do that as a personal commercial contract with MDKS and use the same kind of contract. In that case also MDKS would be the editor and take any legal responsibility. Where would be the difference? Yann 07:45, 9 Oct 2004 (UTC)

Potential liability - the further the Foundation stays from producing content, the lower the legal risk for it is. You doing things at the direction of MDKS is far better for the Foundation than you doing things at the direction of the Foundation. MDKS can try to take legal responsibility but that doesn't stop someone claiming infringement from taking legal action against anyone who seems responsible for producing content. As long as the Foundation stays with online hosting only it is very well protected by the en:Communications Decency Act and en:OCILLA. Jamesday 10:32, 14 Oct 2004 (UTC)

The content will be only the encyclopedia in English and French and not the user pages or community management pages (help pages, discussions and forums). Technically, the included work is the work held in the "cur" database table with "cur_namespace" having the value 0. The content can include all or part of the pictures, with Mandrakesoft or those producing the CD deciding which to include or exclude, for any reason, including copyright or other quality concerns. It should also include all other information required to comply with the GFDL requirements (this may include the user IDs of all of those who have contributed to each article, links to the article history online and links to the user pages and/or any other required information). Those producing the disk for Mandrakesoft and Mandrakesoft are responsible for complying with the license.

Sentence Technically, the included work is the work held in the "cur" database table with "cur_namespace" having the value 0 should moved to provision 4. Same remark about "those producing the CD" as long as it is WFoundation that makes a deal, not "those who ..." and as long as Mandrake donation is obviously a consideration for the CD ... Rest is okay, better than my draft, I have to say :) villy 21:40, 7 Oct 2004 (UTC)

Those producing the CD are not parties to this contract, but must be mentioned because they are the people making the CD and when they deliver the CD is the intended start date of the license to use the name. Agreed about content descrption in 4. Jamesday 21:31, 8 Oct 2004 (UTC)

3. Payment

No payment is made for this license. Mandrakesoft has been kind enough to make a donation to the Wikimedia Foundation and the Wiimedia Foundation is granting Mandrakesoft a license to use the trademark to help to accurately identify the works as those produced with the hosting and technical assistance of the Wikimedia Foundation.

This is probably the best hypocrisy but it won't do any harm. But don't fool ourselves here, it's a price and a donation of course, since the money is given in exchange with a service and with an authorization. Still, we can keep the word "donation" if it makes everybody happy. Of course, I resent the loss : I'm pretty sure they would give not only some money to get the deal but also a profit-sharing, which coincide with WFoundation regular needs. Couln't you find the good Englsih words for that James ? villy 21:40, 7 Oct 2004 (UTC)

4. Obligations

a. The Wikimedia Foundation grants Mandrakesoft a one year license ot use the trademark Wikipedia in association with that work in English and French. The license will commence on the earliest of:

• The date on which Mandrakesoft notifies the Wikimedia Foundation that it has received one or more CDs containing the works, expected to be on or before November 15, 2004.
• January 15, 2005. does Mandrakesoft want to put the following release data here, just in case there is a last minute problem and things are delayed one release cycle?
• The license is non-exclusive and the Wikimedia Foundation itself may or may authorize an unlimited number of others to use the trademark in any way it chooses.

villy 21:40, 7 Oct 2004 (UTC) Still, resent the wording "that work", for the above reasons. Rest is very good. villy 21:40, 7 Oct 2004 (UTC)

b. Mandrakesoft will integrate into the next distribution of its Mandrakelinux operating system, insert identifying information here the content identified above.

Something has to be said for the online diffusion. villy 21:40, 7 Oct 2004 (UTC)

5. Technical specifications

These are as agreed between Mandrakesoft and those producing the CDs for it. The Wikimedia Foundation encourages them to assist Mandrakesoft in meeding its technical needs.

6. Disclaimer

first sentence removed, rest is identical to first draft Wikimedia cannot guarantee, in any manner, the validity of information on the Wikipedia sites. This information could be modified, vandalized or deteriorated by each one. Wikimedia cannot either promise to provide contents free from violations of the copyright.

Mandrakesoft declares it will assume full legal responsibility for the contents which will be provided, as to copyright as well as to the reliability of the contents. Mandrakesoft also states to make its business of the viruses or exogenic software elements exogenic which could be on the master DVD without questioning the good faith of Wikimedia on this subject.

7. Translation

this is identical to the first draft Le présent accord en langue française fera l'objet d'une traduction en langue anglaise par traducteur assermenté à la diligence et aux soins de Mandrakesoft. Cette traduction est annexée aux présentes et paraphée par les parties qui la tiennent pour exacte. [edit]

This agreement in French language will be translated in English language by a sworn translator at the request and the care of Mandrakesoft. This translation is annexed to this agreementt and is initialed by the both contracting parties which take it as exact

8. Applicable law

this is identical to the first draft This agreement is subjected to the French law, with jurisdiction of the courts of the French Republic.

Have I been cruel enough, James ;-) ? villy 21:40, 7 Oct 2004 (UTC)

I hope cruel enough - much better at this stage than with a real opponent in a court later.:) Jamesday 10:32, 14 Oct 2004 (UTC)