Free Culture Movement takes a Step towards Creative Commons with Wikimedia’s Licensing Policy Change

Free Culture Movement takes a Step towards Creative Commons with Wikimedia’s Licensing Policy Change

Herkko Hietanen

This spring the Wikimedia Foundation announced that its projects will move their primary licensing from the GNU Free Documentation License (GFDL) to the Creative Commons Attribution Share-Alike License (Share-Alike). The change affects popular Web sites like Wikipedia and Wiktionary.

The Free software and open source movements have relied on copyleft licensing for decades. Licensing that enables cooperation also plays a significant role in collaborative Web 2.0. In a world where copyright restrictions mean that permission is required to collaborate, licenses that grant that permission reduce the legal friction. With Wikimedia’s licensing change the Free Culture movement takes a major step towards Creative Commons (CC) licensing. This is a welcome change because the CC licenses are well-suited to collaborative projects like Wikipedia.
Collaboration of FSF, CC and Wikimedia

Wikimedia’s decision is a step toward simplified licensing. At the time of Wikipedia's 2001 inception, the GFDL was the leading open content licensing option available. However, the GFDL was originally designed for software manuals. The license is not best suited for multiuser collaboration projects like Wikipedia which spans different media forms, such as photos, video and audio. For example, the license requires the inclusion of a copy of the fairly long license text with each copy of licensed work.

Creative Commons was launched in 2002. Its primary purpose was to ease online licensing and collaboration. CC licensing has evolved to become the de-facto standard of open content licensing, with hundreds of millions of licensed works. CC’s ideology is to provide flexible tools to define the licenses’ levels of freedom. Authors can choose to grant a set of rights varying from fairly limited distribution and reuse rights to public domain dedications. The Free Software Foundation has accepted some of the CC licenses as fitting their definition of “free.” However, the free licenses have not been interchangeable.
Wikimedia’s change of licensing policy followed amendments made by the Free Software Foundation (FSF) last year to GFDL that explicitly allows changes to Wikimedia’s licensing strategy. The new 1.3 version of GFDL includes a clause that gives Massive Multiauthor Collaboration (MMC) sites such as wikis a time-limited opportunity to relicense to CC’s Share-Alike license the materials that the public has contributed to them under GFDL.
Voting for the change

Wikimedia’s decision was made in April 2009, when over seventeen thousand registered Wikipedia and Wikimedia editors participated in a community voting process. Once the polls closed, 75 percent of voters were in favor of the license amendment, 10 percent were opposed, and the remaining participants had no opinion regarding the change.

Even though the majority of the votes were in favor of the change, tens of thousands of Wikipedia contributors, who did not vote, did not approve the dual licensing. It must be noted that their contributions are also protected by copyright. Copyright grants the rights owner the authority to decide exclusively how his or her work can be licensed. The way the Wikimedia change was instituted raises serious questions. How could a small part of the community vote for a license change that affects all of the contributing rights owners? The answer to this question can be found in the small print of the GFDL license text, which states that new versions of the license can be introduced. The new 1.3 version of the license has a clause that gives multiuser Web sites a limited time to relicense their GFDL works with a Share-Alike license.
Legal problems of the transition

The approach of introducing new licenses is problematic in several ways. Firstly, it brings two additional parties to the license: 1) The FSF, which can introduce new licensing terms that affect the licenses of works using previous versions of the license; and 2) The MMC site, which can choose to relicense the works with a Share-Alike license. It is quite unclear who possesses the authority to make decisions regarding the relicensing, as the GFDL only defines the MMC as any World Wide Web server that publishes copyrightable works and also provides prominent facilities for anybody to edit those works.

Secondly, the GFDL does not disclose which Share-Alike license MMC can use. There are over fifty official versions of the CC licenses, which are translated into several languages. For example, there are ten official Share-Alike licenses in English, as Australia, New Zealand, Canada, South Africa, Hong Kong, England, Scotland, Singapore, and the U.S. have their own versions of the licenses, each based on the unported template version of the license that is also in English. Can Wikimedia choose any of these licenses, and which license should it choose?
The U.S. version is most similar to the unported template license, with the long legal boilerplates common in the U.S. legal system. However, England’s version is simple and much more user friendly than its U.S. sister license. While there are over fifty national versions of the licenses, there are only 21 versions of the 3.0 licenses. Nevertheless, Wikimedia has to choose one of the licenses for the English version of the site. Fortunately, all of the Share-Alike licenses are mixable. Thus, combining U.S. CC works with Finnish CC works is significantly easier than combining CC works with GFDL works.
Let’s illustrate the problem with an example. Some of the readers of this article have used open licenses. Maybe you licensed a book in 2003 with the GFDL version 1.2. At that point, you were probably unaware of Creative Commons. In 2005, someone took a chapter from your book and used it as a Wikipedia article, which is permitted by the license. In 2008, the work was suddenly made available under the GFDL version 1.3 –again the license permits relicensing with later version of the license. In 2009, a group of Wikipedia editors decided that the article would be made available with one of the Share-Alike licenses. That is two license changes in six years and the original licensor may be unaware of either of them.
It is subject to legal debate, whether far-reaching clauses that expand into the future are valid against licensors who were unaware of exploitation or licensing possibilities not even invented at the time of initial distribution. Most European countries have laws that nullify such agreements. The idea of making changes to existing promises made to licensees by a third party was not well received by the open content community. The concern of many contributors is well expressed in a comment made in Slashdot:

“With my small army of rebels I take over the FSF and I create GPL v4 which is the equivalent of a public domain license. I fork all projects that are GPL v2 or any later version. I change the license of my forks to be GPLv4 because it still is in the scope of the original license (because of the later version clause). Now I use all my code for free! Yeah!”¹

The exaggerated comment above expresses a very real concern. What if the changes do not express the licensor’s will? The licensor may have wanted to use GFDL to avoid the distribution of the work as part of CC licensed works. GFDL’s future clause does place some limitations on the new license version. Article 10 states that “new versions will be similar in spirit to the present version, but may differ in detail to address new problems or concerns”.
The license clause that enables future version interoperability and the clause that enables the change–of-license policy are open agreements, which can later be filled out by a third party. Such agreements are typically invalid, as copyright licenses are normally interpreted narrowly. The whole idea of licenses as dynamically changeable by a community, whether by CC, FSF, or Wikimedia, further underlines the communal nature of CC and GFDL licensing. At the same time, the arrangement further distances the license from individual management of property rights to the general direction of communism, in which the masses - at least in theory - have a say regarding how property is used. Nevertheless, introducing new versions of licenses is useful in world where technology creates new uses for licensed works. License versioning provides a practical way to fix errors in license text, to react to changes to laws and new forms of media, distribution and usage of works.
In an open letter² posted in December 2008, FSF’s president Richard Stallman noted that "[t]he FSF has been talking with the Wikimedia Foundation, Creative Commons, and the Software Freedom Law Center for a year" to plan the license-migration path. The FSF has taken pains to ensure that the transition would be fairly and ethically conducted, and that changes would follow the spirit of the license. A few months after the transition, it seems that everything has gone smoothly and the contributing rights owners, whose works are relicensed, don’t care enough to complain. If the implementation of this change proceeds as expected, it will be an extremely important victory for Creative Commons and the Free Culture movement.

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What changed?

The amendment affects all Wikipedia content. Nearly all existing content will be re-licensed with Creative Commons BY-ShareAlike licenses.

The site-wide copyright statements and terms of use have been updated on all of Wikimedia’s English language wikis. The non-English wikis will follow soon thereafter.
Wikimedia will require dual-licensing of new community edits, but it will allow imports of Share-Alike-only content from third parties. GFDL-only content from third parties will no longer be allowed.
Authors and editors will also be required to consent to being credited by re-users; at minimum, this will be done through a hyperlink or URL to the article to which they are contributing. GFDL required the whole license text to follow the licensed work. CC licenses only require that the link to the license and the licensor’s copyright information is preserved.
The biggest change is that the over six million articles currently available on Wikipedia and Wikimedia's other wikis can be more easily combined with tens of millions of works that use similar Creative Commons licenses.
Open content licenses have encountered the problem of interoperability. An author who wants to combine GFDL and CC licensed works has problems doing so. This change will not solve the problem of interoperability. However, it means that many of the works hosted by Wikimedia will be dual-licensed. Re-users can choose to use these works with either license.
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1 Comment made by user “keithpreston (865880)” to Re:Modifying licenses (Score:5, Informative) at Wikipedia to be Licensed Under Creative Commons, Slashdot, http://slashdot.org/article.pl?sid=07/12/01/2032252 (Dec. 2, 2007).

2 http://www.fsf.org/blogs/licensing/2008-12-fdl-open-letter.