Talk:Terms of use/Archives/2012-1-03 2

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Add to the intro to the summary[edit]

One of the issues that has come up a number of times here is the distinction between the WMF the projects and the chapters. The human readable summary does not make this clear.

I suggest we add the following after the Disclaimer

We are the Wikimedia Foundation (the WMF), the non-profit
based in San Francisco, USA, that owns and operates the servers which host
the Wikipedia project and our other projects. These Terms of Use set out
the conditions under which you and the Projects may use our servers.

--Filceolaire 22:09, 18 December 2011 (UTC)

Do you mean to say "chapters" or "projects" or "communities" here? Although we're often sloppy, I believe that strictly speaking, the division runs thus:
  • The WMF owns the projects (think "websites") outright (but not the copyright for the content that volunteers have posted to the projects, which is licensed to them).
  • The WMF is affiliated with independent chapters (e.g., Wikimedia Argentina), which are legally separate organizations.
  • The communities are the people who are actually able to use the servers (and projects/websites).
How your text should be re-phrased depends on what you're trying to clarify here. WhatamIdoing 01:05, 20 December 2011 (UTC)
Others would be better than the Projects. I'm sure there was a time when I thought Projects referred to WikiProjects, and I suspect many get confused between the Project as a term for the whole movement and projects as a term for either products such as wiktionary or WikiSource or for individual language version of the same such as FR Wikipedia. WereSpielChequers 09:28, 20 December 2011 (UTC)
It is exactly this distinction between the WMF and the "projects" that I am trying to make clear. I used "projects" to refer to the individual language versions of wikipedia, wiktionary etc. and the communities of editors who work on those projects. This is the sense that "projects" is used elsewhere in this summary - a thing which has it's own policies, over and above the TOU, which editors should comply with.
I definitely was not referring to the chapters since, as far as I can tell, the chapters have no legal relationship with the projects and this is why they are hardly mentioned in these Terms of use.
I'm not sure I agree with you on the WMF. I think they own the trademarks and the servers which host the projects but since they don't own the copyrights I don't think they can be said to own the projects outright.
I can see where the confusion with the wikiprojects comes from but I can't think of a better word to use. Here's a revised version using "wiki" instead:
We are the Wikimedia Foundation (the WMF), the non-profit
based in San Francisco, USA, that owns and operates the servers which host
Wikipedia and our other wikis. These Terms of Use set out
the conditions under which you and others may use these wikis.
I don't like that it focusses to much on the technology and not enough on the community of editors however the WMF servers only host the wikis not the communities and the TOU only apply to what is done on the wikis, so maybe it's good to draw attention to these limits. Filceolaire 13:42, 20 December 2011 (UTC)
All languages of Wikipedia constitute a single Project. Outside of the Wikipedias, it's even pretty obvious: All languages of Wiktionary constitute a single Project, and the various languages interoperate fairly smoothly.
The "thing which has it's own policies, over and above the TOU, which editors should comply with" probably maps closer to "the local community" than to anything else.
Rather than "wikis", I think you might want to consider the word "websites".
As for what the WMF owns, imagine that the WMF is starting a brand-new Project. They set up the Project and are ready to permit the first users to see it. At this point, zero users have contributed anything. Everything that is there at that moment—the servers, the Internet connection, and the trademarks, certainly, but also the concept (what the Project is about) and the infrastructure (like the various boilerplate messages they've written) is the WMF's property. In short, the website is theirs, exactly like a brand-new, blank blog on your own website would be yours. The only difference between the two is that we expect your new blog would eventually have some content generated by you as well as comments from reader-participants, whereas the WMF's hope is that all of the content will be from reader-participants.
And there are some special cases: the WMF owns most of the Foundation website. You'll find that your login doesn't work over there. It looks like there are 57 active users at the moment, and they are almost all current and former WMF employees. The TOU has to work for that website, too. WhatamIdoing 18:52, 20 December 2011 (UTC)
How can all languages of Wikipedia constitute a single Project? English speakers get together to create en:wiki, French speakers get together to create fr:wiki and so on. The different Projects may shelter under the same umbrella but they are clearly distinct. 62.140.210.130 10:31, 21 December 2011 (UTC)
A Project is not a local community. A Project is system for achieving a goal, like "write an encyclopedia" or "write a dictionary". A local community is "people get together to achieve the goal". WhatamIdoing 17:44, 21 December 2011 (UTC)
Sorry, a Project is what the Project manager decides it is. An outsider like yourself (or me) has no input in Project design and implementation. 212.85.1.2 18:58, 21 December 2011 (UTC)
I will go with community consensus here. My only concern is that we don't overly complicate the "human-readable" version. I frankly like the summary how it is (which Filceolaire has vastly improved), but, if you disagree, I concede. :) FYI, do note the above discussion on distinguishing WMF and chapters. Geoffbrigham 19:27, 20 December 2011 (UTC)
The consensus seems to be that there is confusion among experienced wikimedians as to what a 'project' is. How much more confusion will there be among new users. That is why I proposed this paragraph.
The TOU says that in addition to complying with the TOU you must also comply with the policies of the projects but does not give any indication as to what a project is. Remember that most people will come to the TOU directly from a Wikipedia page. They could (for instance) reasonably assume 'projects' refer to other things that aren't wikipedia. That is the confusion I am trying to avoid. Filceolaire 18:58, 21 December 2011 (UTC)
So, as a compromise solution, why don't we modify the second introductory paragraph. In that paragraph, we say:
To support our vibrant community, we provide the essential infrastructure and organizational framework for the development of multilingual wiki Projects and other endeavors which serve this mission. We strive to make and keep educational and informational content from the Projects available on the internet free of charge, in perpetuity.
I would propose that we rewrite as follows (with change in bold):
To support our vibrant community, we provide the essential infrastructure and organizational framework for the development of multilingual wiki Projects (as explained here) and other endeavors which serve this mission. We strive to make and keep educational and informational content from the Projects available on the internet free of charge, in perpetuity.
I will go ahead and make that change, but feel free to correct me if I have it wrong. Geoffbrigham 22:01, 24 December 2011 (UTC)
That WMF page uses "Project" to mean all the language editions of Wikipedia (or Wikinews etc.) while these TOU use "Project" to mean an individual language edition i.e. a thing which has it's own policies. There is no mechanism to appeal a German Wikipedia decision to a multilingual council of Wikipedias. Filceolaire 09:52, 30 December 2011 (UTC)
I guess, though we do say in the introductory paragraph: "multilingual wiki Projects". Then we link to the WMF page, which provides explanations like this: "The largest Wikipedia is in English, with more than three million articles; it is followed by the German, French, Italian, Polish, Spanish, Japanese, Russian, Dutch, and Portuguese editions, each of which contain more than half a million articles." That said, I went ahead and made a a number of changes that address your point. When I reread the TOU tomorrow, I may catch other places where the distinction makes sense. Thanks as always. Geoffbrigham 18:55, 30 December 2011 (UTC)


Sentence case[edit]

Why is the text of the terms of use and the terms of use summary using title case and not sentence case? --MZMcBride 20:30, 21 December 2011 (UTC)

Why not? It's not required to follow the style guide of the English Wikipedia. WhatamIdoing 22:25, 21 December 2011 (UTC)
A brief (and admittedly incomplete) scan across Wikimedia projects indicates to me that capitalisation is consistent on all English-language projects and most foreign-language ones. The only exception I found was German-language projects, but Germans like to capitalise nouns anyway, so I think they may still be using "sentence case". Yaris678 17:40, 23 December 2011 (UTC)
The Portuguese version uses sentence case. You're quite right - you can't tell from a German version which format they're using. 156.61.160.1 17:53, 23 December 2011 (UTC)

┌─────────────────────────────────┘
Capitalization isn't consistent on all English-language projects, given Wikimedia Forum, Main Page and Wikimedia News, right here on Meta. :) "Terms of Use" is the title of the document, much like Wuthering Heights is the title of a book. This seems to be standard in WMF policies. Looking at a few, the existing Terms of Use are described in title case as well, as is wmf:Code of conduct policy and wmf:Conflict of interest policy and wmf:Whistleblower_policy. While they were all moved to sentence case recently, they still use title case in the documents themselves. --Maggie Dennis (WMF) 20:53, 23 December 2011 (UTC)

"Main Page" has always been an exception for historical reasons. The title of the document is "Terms of use" currently (and properly), so I'm not sure how nineteenth-century English literature is relevant.
To say that the existing "Terms of use" is described in title case is a bit silly. There was one reference to "terms of use" that was improperly using title case, and it was in a hatnote. I've fixed it just now so that the sentence makes sense and has flow.
I'm not sure how other, older policies are relevant here. If people have incorrectly used title case in the past, I don't see how continuing that mistake is a good idea. Sentence case is the international (wiki) standard.
Is there any reason that the title casing can't be killed? --MZMcBride 04:59, 26 December 2011 (UTC)
Titles are titles, whether you're talking about a document written in the 21st century or a book written in the 19th. I'm confused, though, that you assert that people have "incorrectly used title case in the past". Incorrectly based on what? Policies have evidently long been located at and/or referred to by the title case. As I am preparing to press "save" here, I note, for instance, that the text beneath this page says:
By clicking the “Save Page” button, you are agreeing to the Terms of Use and the Privacy Policy, and you irrevocably agree to release your contribution under the CC-BY-SA 3.0 License and the GFDL. You agree that a hyperlink or URL is sufficient attribution under the Creative Commons license.
(Two policies, both capitalized per title case.) And further down, it says, "If you did not write this yourself, it must be available under terms consistent with the Terms of Use, and you agree to follow any relevant licensing requirements." This also uses title case, as did (until your change) the document itself; it doesn't seem so much silly as standard practice. What's the advantage of putting a title in sentence case? Is there a discussion about this somewhere? I'm only familiar with en:Wikipedia:Naming conventions (capitalization), and that seems to have been the guiding principle used by others in creating and discussing our Terms of Use and other Foundation policies. It says, " For page titles, always use lowercase after the first word, and do not capitalize second and subsequent words, unless the title is a proper noun." It links to en:Proper noun which, of course, indicates that "A proper noun or proper name is a noun representing a unique entity (such as London, Jupiter, John Hunter, or Toyota), as distinguished from a common noun, which represents a class of entities (or nonunique instance[s] of that class)—for example, city, planet, person or corporation." It would seem that this Terms of Use is a unique entity as distinguished from a class of entities--terms of use of websites in general.
(As an aside, I'm not sure why "Main Page" would be an exception for historical reasons, if this were the standard, but if so, what is the exception for Wikimedia Forum and Wikimedia News?) --Maggie Dennis (WMF) 13:17, 26 December 2011 (UTC)
This page, whose talk page you're commenting on, is titled "Terms of use", not "Terms of Use". That's fairly obvious.
The terms of use are exactly that, terms of use. They're not titled "Terms of Use" as though it's the title of a book. That'd be like naming a book "Book". Just as the privacy policy isn't titled "Privacy Policy", as it is a privacy policy.
Sentence case is the international wiki standard. "Main Page" is an artifact of MediaWiki. If you changed the name now, any wiki upgrading would be broken if it used the default "Main Page", as the page itself wouldn't automatically be moved with a redirect. You can look through MessagesEn.php to see that nearly every other page title (including "Privacy policy", "Community portal", etc.) are in sentence case. Even the description text for the main page uses "Main page" in a default MediaWiki installation. That's also visible in the sidebar here at Meta-Wiki.
"Wikimedia News" probably needs to be renamed. It's an old page (dates back to 2002). "Wikimedia Forum" and "Planet Wikimedia" are proper nouns. Those make more sense capitalized. As for interface text that uses poor capitalization, it simply needs to be corrected. I'll look at fixing it in a minute. (As I recall, it was written by another Wikimedia Foundation employee and instituted globally; the employee was also apparently unfamiliar with the conventions.)
I'm not sure what more I need to do to "prove" to you that I'm right. I don't really see how this is a dispute. If you look all around this wiki ("Steward requests", "Terms of use", "Requests for comment", "Complete list of Wikimedia projects", "Mailing lists", etc.), the titles are in sentence case. If you look around the English Wikipedia ("Village pump", "Administrators' noticeboard", etc.), the same is true. If you look around wikimediafoundation.org, even discounting the pages I've moved, the titles almost always use sentence case ("Press room", "Our projects", "Local chapters", "Job openings", "Volunteer opportunities", "Contact us", etc.). The "exceptions" are named entities like "Planet Wikimedia", which makes sense to capitalize. If the page were titled "Wikimedia blog aggregation service", it would be in sentence case. The title case throughout the current document doesn't make any sense.
So I ask again, what's the actual objection? --MZMcBride 16:14, 27 December 2011 (UTC)

I corrected the interface text here at Meta-Wiki. And, for what it's worth, Erik's original headers in the terms of use that he posted in 2009 were in sentence case as well (e.g., "Information for text contributors to Wikimedia projects"). They continue to use sentence case today. --MZMcBride 16:24, 27 December 2011 (UTC)

In fact, only the human readable summary and section 4 are in title case. The remainder is in sentence case. 212.85.1.2 16:29, 27 December 2011 (UTC)

Looking through the Wikimedia blog, most of the post titles seem to use sentence case (e.g., "Our latest annual report: the way the world tells its story" written by Jay or "How SOPA will hurt the free web and Wikipedia" written by Geoff or "Help test the first visual editor developer prototype" written by Howie). The blogs themselves are titled in sentence case ("Technology blog", "Community blog", etc.). If you look at the Wikitech wiki, it uses sentence case ("Server admin log", "Software deployments", etc.). The English Wikinews uses sentence case in all its titles. The list goes on and on. It's not all completely consistent on any project or domain (that's the nature of having multiple authors), but I don't see that as a reason to further the inconsistency. Sentence case is the proper case. --MZMcBride 16:35, 27 December 2011 (UTC)

I don't believe that your change constitutes a correction; I think it has introduced a grammatical error. "Contact us" is not a stand-alone, coherent document; it's a page. "Terms of use" both describes the content and titles the stand-alone legal agreement. It is a coherent work, a specific legal agreement: Wikimedia's Terms of Use. (Contrast with Google's Terms of Service and Yahoo's Terms of Service and Microsoft's Terms of Use and Digg's Terms of Use and NPR's Terms of Use, every one of which uses the title case, because they are specific documents, unique from the general class.) You can see such usage, for instance, here in discussing Harris v. Blockbuster, Inc. where they switch between sentence case and title case depending on whether they are discussing the document or the provisions: "Harris’s argument was based on the fact that Blockbuster had reserved for itself the unilateral right to modify its Terms and Conditions of Use" (the specific document) vs. "On April 15, 2009, a Texas federal district court held that an arbitration provision in Blockbuster’s online terms of service was “illusory” and unenforceable because Blockbuster had reserved the right to change the terms of service at any time" (the practices described in aggregate in the document, titled Terms and Conditions of Use). Properly, it should be capitalized consistently depending on whether we are discussing the document (title case) or the contents (sentence case). --Maggie Dennis (WMF) 18:04, 27 December 2011 (UTC)
It's not a matter of being "proper" or "right". The most common convention on WMF projects is sentence case. The most common convention in legal documents is title case (plus capitalization for all sorts of words defined in the agreement). There is, however, no Grand Council of WMF Capitalization that absolutely requires any WMF document to follow that convention, just like there is no Grand Council of Legal Document Capitalization that absolutely requires legal documents to use title case. When we have two conventions conflicting (as we do here), it's a matter of the author's personal preference, not a matter of what's "right".
On the other hand, I'm glad to know from this comment that MZMcBride's only complaints are about the purely trivial issue of formatting. That suggests that we've done a good job on the content. WhatamIdoing 01:34, 29 December 2011 (UTC)
Ehhh, I consider most of these terms to be unenforceable dreck, so I'm not too fussed about contents. I do think that anything worth doing is worth doing properly, though. In this case, I don't see any reason to not use sentence case and Maggie seems to be arguing for the sake of arguing. Outsiders looking in might say the same about me, but I really do get (slightly) bothered by the use of title case in places like this. I went as far as to edit the intro box myself, but I've been reverted. I may just end up editing the live document later when nobody's looking. :-)
Slightly unrelated: are you (WhatamIdoing) working for Wikimedia? Or more specifically, are you working for Wikimedia in any legal capacity? I ask only because of your involvement on this talk page and your most recent use of the word "our." It's language you'd typically hear/use if you were discussing with someone who has a deeper involvement with something. I suppose I'm simply curious as to your level of involvement here. --MZMcBride 05:00, 29 December 2011 (UTC)
I don't argue for the sake of arguing, not without indicating that I am. :) I certainly don't dig up links and quotes to demonstrate the proper usage of caps for the sake of arguing--life's too short.
WhatamIdoing is not working for Wikimedia; she has been wonderfully helpful in voicing her opinion, however. She can speak for herself on that front, but I imagine her use of "our" is simply recognizing that we're a team pulling towards a common goal. --Maggie Dennis (WMF) 16:14, 29 December 2011 (UTC)
@MZMcBride. I think you are a proper opponent to excessive capitalization. Indeed, I was justly accused of it at the beginning of this process, so I have read carefully your viewpoints, knowing that I'm often guilty of this practice. We just decided however to use the phrase "Terms of Use" in lieu of "Agreement" as a defined term that refers to the legal agreement. In legal convention those terms should be capitalized. Thus, because this is a legal document, I would like to captialize the phrase as follows: "Terms of Use." Thanks all for your discussion on this, especially MZMcBride, Mdennis, and WhatamIdoing. Geoffbrigham 18:17, 30 December 2011 (UTC)


Third Party Licenses[edit]

It was pointed out to me that third party licenses were not addressed in the licensing terms of the original terms of use, and my goal is not to change any practice in this area. For that reason, I am deleting former Section 7(h)], which read:

Third-party licenses: In addition to the above licensing requirements, when you post content, you warrant that you have fully complied with any third-party license relating to your contribution, and that you have done so in a way so as to convey to other users any required terms that they should be aware of.

After thinking about it, I believe this provision has little role in a free-license regime, and I don't want to overly complicate the Terms of use or enshrine other agreements (which may or may not be enforceable) through this provision. If there is strong opposition, please let me know. Geoffbrigham 17:29, 26 December 2011 (UTC)

Highlighting Sections 13, 14, and 15[edit]

For legal reasons we have to highlight Section 13 (Disputes and Jurisdiction), Section 14 (Disclaimers), and Section 15 (Limitation of Liability). Most sites do this by capitalizing all the letters, like here, but I find that ineffective and hard to read. I propose that we place the text against a yellow background (as is done by eBay here (scroll down)). If nobody strongly objects, I will ask Maggie to do that. Geoffbrigham 17:46, 26 December 2011 (UTC)

Done at request of Maggie. --Siebrand 20:28, 26 December 2011 (UTC)
Looks good, but a bit confusing without an explanation (I looked here, guessing that this was the reason). How about adding the text Sections below highlighted for emphasis centered above section 13?--Eloquence 01:11, 31 December 2011 (UTC)
Good suggestion. Done. Geoffbrigham 02:20, 31 December 2011 (UTC)
Or Text below highlighted for compliance with (whatever legal requirement says they have to be highlighted) Filceolaire 14:14, 31 December 2011 (UTC)
I think I will leave as is. Laws vary significantly (including among states). So specifics would be either too bulky or not that useful. Thanks anyhow for the comment. Revelant idea. Geoffbrigham 23:30, 31 December 2011 (UTC)

typo[edit]

"obsence" should be "obscene" I think.--Filceolaire 19:46, 26 December 2011 (UTC)

Yes check.svg Fixed. --Siebrand 20:39, 26 December 2011 (UTC)

The link to "Meta:Copyright problems" should be directed to "Copyright problems". I have fixed this with a redirect and it is probably best to leave it that way so this link will still work when the TOU are copied to other sites. --Filceolaire 21:36, 26 December 2011 (UTC)

Section 10[edit]

Were we going to change "Block a user's account or ban a user for actions violating this Agreement" to "Ban a user from contributing or block a user's account for actions violating this Agreement" ? If so then "has had his or her account blocked" should be "has been banned or had his or her account blocked".

Yes. I haven't seen any objections so I will do that tonight or tomorrow. Thanks. Geoffbrigham 22:52, 26 December 2011 (UTC)

Redirect created so the link to "Meta:Global bans" goes to "Global bans" --Filceolaire 21:40, 26 December 2011 (UTC)

It might be better if the proposed addition to this Section were instead made to Section 12. The relevant part of Section 12 would then read:

In certain (hopefully unlikely) circumstances it may be necessary for either ourselves or authorized members of the Wikimedia community to terminate part or all of our services, terminate this Agreement, block your account, or ban you as a user. The extent of authorization varies across the Projects - for example on English Wikipedia administrators are not authorized to ban. 212.85.1.2 12:14, 27 December 2011 (UTC)

Let me know if my last edits do not address your concern. Thanks. Geoffbrigham 23:45, 29 December 2011 (UTC)

Section 13[edit]

Can this sentence

"in the event that there is any dispute between you and the Wikimedia Foundation,
you agree to resolve it exclusively in a state or federal court" 

be modified as follows

"in the event that there is any dispute between you and the Wikimedia Foundation,
which you are unable to resolve through the various dispute resolution mechanisms
provided by the projects and by the Foundation, then you agree to resolve it
exclusively in a state or federal court" 

or maybe change "dispute" to "legal dispute" or both. There are all kinds of dispute on wiki every day many of which are not resolved but which the courts may not be interested in addressing. Filceolaire 22:40, 26 December 2011 (UTC)

I like the idea. I rewrote as follows:
We hope that no serious disagreements arise between you and us, but, in the event there is any dispute between you and the Wikimedia Foundation, you agree to first seek resolution through the dispute resolution procedures or mechanisms provided by the Projects and us. If you seek to file a legal claim against us, you agree to file and resolve it exclusively in a state or federal court located in San Francisco County, California.
Hope your holiday is going well, Filceolaire. Mine has been relaxing. Cheers.


Geoffbrigham 22:45, 26 December 2011 (UTC)
Minor rewrite:
We hope that no serious disagreements arise between you and us, but, in the event there is any dispute between you and the Wikimedia Foundation, you agree to first seek resolution through the dispute resolution procedures or mechanisms provided by the Projects and the Foundation. If you seek to file a legal claim against us, you agree to file and resolve it exclusively in a state or federal court located in San Francisco County, California.
Otherwise it looks like "us" in the last sentence only refers to the Foundation but not to the projects - giving people an narrow opening to try to sue Italian Wikipedia (for instance) in Italy. Filceolaire 01:04, 27 December 2011 (UTC)
OK - "Us" did refer to the Foundation, so I redrafted as follows (incorporating your feedback):
We hope that no serious disagreements arise involving you, but, in the event there is a dispute, you agree to first seek resolution through the dispute resolution procedures or mechanisms provided by the Projects and the Wikimedia Foundation. If you seek to file a legal claim against us, you agree to file and resolve it exclusively in a state or federal court located in San Francisco County, California.
Geoffbrigham 02:47, 27 December 2011 (UTC)
Rereading I see how the Terms of use are written to protect the Foundation and make individual editors liable for their edits and I understand how that follows from the DMCA. The TOU also describes the Chapters and associations as legally independent, not responsible for website content.
However the TOU also mentions other things:
  • Projects - have their own policies additional to the TOU and have the authority to enforce them.
  • Communities - responsible for developing and enforcing Project policies.
  • Articles - separable parts of the projects, each with it's own community of editors, listed on it's History page, who own the copyright to that article and have the authority to sue if the article is reproduced in breach of the license.
Each of these seem to have their own legal or quasi-legal rights and responsibilities. Do each of these need their own page of legal disclaimers too? Can the TOU be stretched a little to help keep these from being dragged into court by SLAPP lawsuits?
Sorry to bring this up at such a late stage but it's something that only crystallised for me when I saw your comment above. It's obvious to us that you can't really sue a project because there is no one there to hire a lawyer when the letter comes and no money for you if you win but that isn't going to deter someone who is interested in shutting down or even taking over a project - and there are courts in some parts of the world who could be persuaded to go along with that. Let's make sure their is no way they can get the US courts to enforce such a ruling - even with SOPA and ACTA. Filceolaire 08:56, 27 December 2011 (UTC)
According to the law of unincorporated associations in the UK (I don't know how it differs in other common law countries) the officers of the Project would be sued. That's why it is so important to detail what the limitations on the authority of these officers are. That way the officers who respect the constraints on their authority are less likely to become involved in lawsuits involving the ones who act ultra vires. 212.85.1.2 12:54, 27 December 2011 (UTC)
@Filceolaire. I want to reconsult with my transactional lawyer (who is one of the best in this area) to see if this is possible. If it is, I'm open to it. Unfortunately, she won't be back until next week, so I will need to wait until then before getting back to you. Geoffbrigham 16:31, 27 December 2011 (UTC)
Also, Filceolaire or others, if you have some proposed language on this issue, that may be useful as we think about this. Thanks. Geoffbrigham 16:44, 27 December 2011 (UTC)
I did follow up with our transactional lawyer. Unfortunately, as I suspected, privity of contract principles would probably not render such a provision effective. Too bad. It was a good idea. Geoffbrigham 19:45, 30 January 2012 (UTC)

┌─────────────────────────────────┘
IMO the expansion is a good one.

I don't think that Filceolaire's conception of "the Projects" is accurate, and therefore may lead us astray. How exactly does a collection of webpages enforce anything? Wikisource (for example) is not capable of enforcing policies. The community (via its individual participants) enforces policies. The Project and the articles are inanimate objects, not people. WhatamIdoing 01:21, 29 December 2011 (UTC)

I agree but "the Projects" have policies and these are created and enforced somehow (even if this is done badly on some projects) and they have a web address where they can be found online so someone is going to try to sue one someday. We could use "the Projects" to refer to the community of editors who edit that project, create the projects policies and enforce the project policies. Alternatively we can refer separately to "the Project" and to "the Community" associated with that project. We need to check the TOU and see which way these words are used. Another alternative is to make it explicit in the the TOU that "the Projects" and their communities have no legal existence - legally there is only the WMF and the individual editors. Filceolaire 22:20, 29 December 2011 (UTC)
Similarily "the articles" are "works" as defined by copyright laws (I think) with communal/collective authorship (as listed on the History page) while each "Project" is a collection of articles. I believe copyright law treats these in slightly different ways. Is that right? If so then do we need to make this distinction explicit in the TOU? Filceolaire 22:06, 29 December 2011 (UTC)
I just went through the TOU. I did not find an inconsistent use of the word "Projects" (which, as stated in the introductory paragraph, means the "multilingual wiki Projects" or sites hosted by Wikimedia (not the communities surrounding those Projects)). If I'm missing something, let me know. Geoffbrigham 17:56, 30 December 2011 (UTC)
I see you have changed the wording to make the distinction between the multilingual Projects and the individual language editions which make up those projects (where most of the policies are developed and enforced). There may still be some lingering ambiguity since some projects - such as Commons and Media wiki - do function as multilingual projects and don't have individual language editions. I don't think this will cause anyone confusion but there may be a need for a couple of words somewhere to make sure there is no loophole to be exploited. Filceolaire 14:11, 31 December 2011 (UTC)
I think I will say "Project editions" as appropriate (as opposed to "language editions"). I'm going to do a last read to hopefully catch the relevant places where we should make the change. This is a last minute change, so, as an exception to the comment period deadline of tonight, if anybody has any concerns on these specific edits, they may say so before January 5. Geoffbrigham 23:27, 31 December 2011 (UTC)
See changes made at Legal Review. Happy New Year to all! Geoffbrigham 00:56, 1 January 2012 (UTC)

Right to fork[edit]

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Maggie Dennis (WMF) 12:31, 30 December 2011 (UTC)

As we bring this round to a close this week ....[edit]

As we enter our last week, allow me to extend my congratulations to you, the community, for participating in the most collaborative drafting of a terms of use for any major website! With 4500 lines of text, resolution of more than 120 different issues, and over 120 days of discussion, we are bringing this stage of the collaboration to an end on December 31, 2011. We still have a week, so feel free to continue contributing. Unfortunately, after December 31, I cannot guarantee that we will review or incorporate additional comments.

Here is how I propose we go forward. We take the version of the proposed terms of agreement dated December 31 and review it internally at WMF at the executive level. I don't anticipate any changes (other than maybe small non-substantive edits). If I'm wrong and there are substantive recommendations, I will return to the community and open the discussion for another week on those recommendations. In January 2012 or shortly afterwards, the legal department then expects to recommend the final version to the Board of Wikimedia Foundation for review and approval. We expect the Board will take some time to review before reaching a final decision.

Thank you again for all your ideas, creativity, thoughtfulness, research, and expertise. Collaboration worked, and that's because of you.

Geoffbrigham 23:29, 26 December 2011 (UTC)

Contrast to existing terms of use[edit]

I am comparing our new draft to the existing terms of use. To summarise the differences I notice:

  1. The new is much bigger than the old. It covers more aspects, usually in more detail and with more lead in.
  2. The new provides a human-readable summary.
  3. The new refers to itself as an agreement. The old doesn't refer to itself, but the vast majority of the text is in sections titled "Information for X".

Here are some of my thoughts on these differences:

Difficulty in comprehension The increase in size is probably inevitable, as people think of more things that the foundation needs a legal position on. However, putting all this extra stuff in makes the focus of the document unclear. This problem is compounded by the fact that we now have an agreement, rather than information. Can I really agree to something I can't comprehend?
What am I agreeing to? The old text does contain the word agree in specific places. e.g. "for any text you hold the copyright to, by submitting it, you agree to license it under the Creative Commons Attribution-ShareAlike 3.0 Unported License" This is specific and hence relatively easy to understand. Calling the whole thing an agreement is overwhelming.
What do you put in the summary? The summary doesn't summarise everything. For example, there is nothing in it about the foundations trademarks. This is an inevitable part of the process of summarising. To do it properly, you need to know you are summarising it for... which brings us to...
Who is your audience? The old text made this clear by having three sections saying "Information for X" so people can see which bit is aimed at which audience. The new text has even more audiences: Most of it seems to be aimed at contributors but there are bits for people who might want to use your trademarks, bits for readers of the encyclopedia etc. This means it's difficult for the reader to find the relevant but. I'm not really sure which bit is for people who want to reuse content, but presumably it’s in there somewhere! It was in the old text.
How will the audience know? Some of the new text seems to be replacing the disclaimer for readers, rather than the terms of use. Does that mean it will be linked to from the bottom of every page, as the disclaimer is now? That means that you'll have even more people struggling to find the relevant bit. If you aren't replacing the disclaimer, why is there stuff in the new text that looks like it is for readers?

I guess all of the above comes down to thinking about your audience. Perhaps you should have separate sections or pages addressed to different audiences (readers, content reusers, contributors). I would also make it clear which bits are provided for information e.g. "We happily welcome your participation in this community." is presumably information "some activities may also subject you to liability." could be interpreted as information but it could be interpreted as an agreement. I think the answer to that is to not refer to the whole thing as an agreement. Rather make any agreement explicit, as in "for any text you hold the copyright to, by submitting it, you agree to license it under the Creative Commons Attribution-ShareAlike 3.0 Unported License"

Yaris678 02:39, 27 December 2011 (UTC)

@Yaris. Thanks so much for your thoughtful comments and for taking the time to make the above comparison. Here are some of my initial thoughts, but, of course, I'm interested in hearing from you and others.
1. So I agree with you that it is important that people understand the agreement. The present user agreement - entitled "terms of use" - is a type of agreement that we must acknowledge at the time of making edits ("By clicking the "Save Page" button, you are agreeing to the Terms of Use ...."). To be clear, the present terms of use only covers the material that appears in Section 7 of the proposed terms of use: that is, the present terms of use is only a licensing agreement, not a terms of use in the traditional sense. That said, I think there is firm argument that the proposed terms of use describes the licensing provisions of the present terms more clearly by breaking down the topics and using more direct language.
As you fairly point out, we are addressing more topics, and the document is necessarily longer. But again, the present terms of use is only a licensing agreement, not a traditional terms of use. Any comparison is arguably apples to oranges. That said, to assist in comprehension and focus, we do incorporate a "human-readable" version, an overview section, informational context (or "lead-ins"), and direct language (which is better than most terms of use). When compared to the user agreements of other like-minded organizations, I do not believe we fall too far off the mark. See, e.g., Internet Archives, Creative Commons, Mozilla Firefox, Open Source Initiative, Reddit, Project Gutenberg, Linux Foundation, StackExchange, WikiSpaces, and WordPress.com. My point is that, as far as terms of use go, IMHO, our proposed version is more readable and comprehensible than most. Indeed, I reread it again today and found it pretty straight-forward: The only section which remains complicated, in my opinion, is Section 7, but that is an improved rewrite of the present terms of use. So, even there, I see improvement.
2. We do call the document an "agreement" because technically it is. I'm open to calling it something else throughout ("Terms" or "Terms of Use" like the present terms of use), but, at the end of the day, it is a legal contract or agreement. Agreements or contracts do not always include direct explicit agreements ("I agree to license under 3.0") or ("You must not violate the law"). As in many agreements, sometimes there are such direct explicit agreements, sometimes there are understood notices (e.g., disclaimers), sometimes there are understood processes (e.g., DMCA notice procedure), sometimes there are understood liabilities ("You are responsible for your edits"), sometimes there are understood relationships (e.g., "Users are not employees" or "Wikimedia is a hosting site"), etc. But all these types of provisions are characteric of agreements, contracts, and terms of use. At the end of the day, the user must agree to the entire document with these types of provisions. Again, if you and others think it would be better, I'm happy to simply use the phrase "Terms of Use" throughout the document in lieu of "Agreement."
3. You are right the summary does not summarize everything, like the trademark section. However, the purpose of the summary is to provide the general gist of the agreement to help see the issues big picture. It is not the agreement itself. I submit that this is not unlike the "human readable" version of the Creative Commons license: The CC license is quite long and detailed, but the CC "human-readable" version is quite bare bones.
To some degree, we did try to break down the summary according to types of users. We said, for example:
You are free to:
Read and Print our articles and other media free of charge. [Readers]
Share and Reuse our articles and other media under free and open licenses. [Reusers]
Contribute To and Edit our various sites or Projects. [Editors and Contributors]
But it is true that we did not separate the entire summary into three parts, treating each type of user separately. I do note that the present terms of use is simply a licensing agreement and, as you note, addresses different types of users with respect to the free licenses. But I believe we are careful to sub-divide these uses as well in Section 7 (which is intended to incorporate the provisions of the present terms of use); indeed, by using more categories, our approach is arguably clearer than the present terms of use.
4. Your point that the audience is multi-fold now is well taken. We had had previous discussion on this, and there were advocates that we write a terms of use for each type of user. For example, see here and here. In the end, however, it seemed too complicated to split up by type of user, since you could be a reader one minute and a contributor another. There was overlap, and, in my opinion, it would make the document more complicated and longer (which we were tying to avoid). That said, I recognize your point as a fair one.
On your reuser point, Section 7(h) is clearly labeled as applying to "reuse," so I think we are hopefully ok there re clarity.
5. I am not quite sure what we will do with disclaimers. There is no legal prohibition about keeping them at the bottom of the page. The terms of use summarizes the most important aspect of the existing disclaimers. To facilitate undertanding, the redundancy could be a good thing. The terms of use is for readers as well as editors, which is why we include the disclaimers in the terms of use. The information is so important that we believe it should be in the terms of use (as is the case for most terms of use).
Many thanks again and happy holidays. Geoffbrigham 04:22, 27 December 2011 (UTC)
Geoff, Thank you for your response. Here are my thoughts:
Say "terms" not "agreement" I heartily agree with your idea of referring to the document as terms, rather than an agreement. The document is called "terms of use" after all! "Terms" sounds like it includes things that are for information and things that I have to agree with. The text includes a lot of the former. For example "Because we provide a wide array of content that is produced or gathered by fellow users, you may encounter material that you find offensive, erroneous, misleading, mislabeled, or otherwise objectionable." is a statement of fact, whether I agree to it or not. If I do not know whether or not it is true, it does not prevent me from agreeing to the bits I need to agree to.
Sections 4 and 7 are the important ones I am glad you highlighted the fact the current terms relate to section 7 of the new ones. Thinking about it... isn’t section 7 (and possibly bits of section 4) the bit that I have to agree to when I press save? The other stuff seems to be relevant at other times or is provided for information rather than agreement (e.g. "You are responsible for safeguarding your own password and should never disclose it to any third party.")
Don’t let’s be dragged down by the others Yes. These terms are a lot more readable than everyone else's... but then everyone else has absolutely dire unreadable terms, so that’s not really saying anything. As Eddie Izzard says “They’ve made us liars ... NO ONE has read the terms and conditions.”
Previous discussions on splitting the terms by audience suggest that this is the right thing to do Thank you for providing links to previous discussions on splitting the terms by audience. I notice that Filceolaire said "Why are we asking readers to read the TOU before reading? Our content is under Free Culture licenses which mean readers get every right under copyright law plus some extra rights. Why would they need to read the TOU?" and "Why are these being lumped together?". Your response was "Frankly, I believe people would find multiple agreements as too confusing." On the contrary, people will find a single document confusing... unless perhaps it is highlighted which bit is relevant to which person. Otherwise people will think "Why am I reading this?" and probably give up. I agree with Pete F when he says "I believe organizing the document in a way that addresses different use cases in different sections is well worth considering." I agree with Filceolaire when he says "Is there really that much that would have to be repeated?"
Redundancy for understanding I agree with your statement "To facilitate understanding, the redundancy could be a good thing". I know this isn’t what you were referring to, but it should be applied to the idea of splitting the terms by audience. Obviously, there will be some repetition, but this is worthwhile to allow the reader to easily go to the bit that is relevant.
A background section? Is the answer to a lot of this to have a background section? This can contain a lot of the stuff that is for information. I suspect it could contain a lot of the stuff that is common to all audiences too. If this draws some of the information too far from where it is pertinent, it might be an idea to have a "general background" section at the top and then specific backgrounds for each section.
So... to summarise, what I think would be useful is to call the terms "terms", split them by audience and provide a background section or sections that contains most of the text that is for information.
Regards,
Yaris678 19:54, 27 December 2011 (UTC)
@Yaris. Thanks. My comments below according to your topics:
1. "Terms" not "agreement." Let's see if anybody objects. If they don't, I will make that change.
2. Sections 4 and 5. Definitely those are important sections. But there are other sections to which you need to agree, e.g., liability limitations, jurisdiction, DMCA processes, etc. But the human-readable section emphasizes Sections 4 and 7 and provides the gist of the terms.
3. Dragging the world down.  ;- But alas there are good reasons to have terms of use as I spell out at the top of the discussion page. I hope we can improve the industry standard, and I think we are -- in the extensive collaboration with the community, with a human-readable summary, with better direct language, with clearer headings, etc.
4. Previous discussions & redundancy. I believe Filceolaire was trying a draft breaking down the terms by type of user, but it didn't get much traction, I think. (Filceolaire, tell me if I have that wrong.) When we were considering this earlier in the review process, my personal attempts weren't too successful at drafting something that didn't become much longer and complicated. If you want to propose draft language, hopefully a simple "fix," I'm open to considering it. Would love it if your proposal did not require a complete rewrite but maybe that is not possible. ;-
5. Background section. We do offer the overview section, which we could amend. Again I would be interested in seeing draft language. My personal opinion is that the terms are not confusing on the informational stuff, but I'm open to suggestions if I have that wrong.
Thanks Yaris for your thoughts. Geoffbrigham 20:37, 27 December 2011 (UTC)
My thoughts:
1.Terms please. These terms apply whether you agree with them or not.
4. My attempt at terms of use divided functionally is at Terms_of_Use/Remixed. Please note that this is the draft Terms of use from a couple of months ago rearranged by who they are aimed at so there are sections for Readers, for Authors, Editors, Content contributors, for Reusers and for Lawyers. The section for Lawyers (labelled "Additional Requirements") is all the bits of the TOU which tell you how the terms are to be applied who enforces what etc. rather than telling you what you can and cannot do.
I found very little that needed to be repeated.
5. Background - see my bit about section 10 above - add a bit to say what are projects, articles, community where referred to in this document.
@Filceolaire. You know I admire your work on this project. Your ideas are great, you are innovative, and you are thoughtful. Also I really appreciate your time and efforts to rearrange the user agreement by user type. But, in this one case, I'm afraid we disagree.  ;- I just reread your version, and I'm not convinced. In my view, this approach will result in a bulky and harder-to-understand document. (I know everyone does not share my opinion.) In contrast, I think our version reads better and is grouped better. All this said, I know there is one thing we can agree on: When this is all over, I owe you a beer (or two). Geoffbrigham 01:49, 28 December 2011 (UTC)
I think you may be right. I did this as an experiment do see how it would turn out. I would love some other opinions on the understandability of this vs the original. Yaris?
On the beer? Remember you are not working for Google or Facebook. We are working with a team of tens of thousands, collaborating together to make this work. It's frustrating because sometimes you have to wait a while for the people you need to turn up and some of those who turn up only care about parts that seem unimportant to you, but we aren't here to help you; we are here because we think this is important. You can buy the first beer but the second one is on me because we worked together to deliver this baby.
Filceolaire 13:56, 28 December 2011 (UTC)
I would prefer not to use the word terms throughout the document. I believe that the user needs to understand the agreement, and part of that means having the user understand that this really is a legal agreement. I believe that the word agreement is clearer on that point. WhatamIdoing 01:17, 29 December 2011 (UTC)
This is a close call, and I think WhatamIdoing has a strong point. But the document is entitled "Terms of Use," and, in addition to the above feedback, switching to the word "agreement" is a bit inconsistent. I will make this change. Geoffbrigham 17:24, 30 December 2011 (UTC)

Been away for a few days. Just had a look at Terms of Use/Remixed. This looks much better to me. Doing it this way means that anyone can see which bits are relevant to what. I can't see any problems with doing it that way around (although obviously the latest version of the terms would have to be put in that form). Yaris678 23:30, 1 January 2012 (UTC)

I want to thank you for your comments Yaris. On this reorganization point, I feel we never reached consensus (though the idea was definitely worthy of serious discussion). Hope your new year has started well. Geoffbrigham 02:58, 3 January 2012 (UTC)

You agree to first seek resolution through the dispute resolution procedures[edit]

http://meta.wikimedia.org/w/index.php?title=Terms_of_use&diff=3183171&oldid=3182740:

[I]n the event there is a dispute, you agree to first seek resolution through the dispute resolution procedures or mechanisms provided by the Projects and the Wikimedia Foundation.

I don't agree with this addition to the TOU. Although disputes should be settled on-wiki, I don't believe that it should be mandatory. This would put those without strengths of numbers or with little knowledge of wikilaywering and Wikipedia's extremely long dispute resolution process at a severe disadvantage. It'll also empower those who can take advantage of on-wiki politics and mob rule. I also believe that as a person's right to use the legal system shouldn't be infringed upon. --Michaeldsuarez 18:52, 27 December 2011 (UTC)

Hi Michaeldsuarez. Let's see what others say. Provisions requiring some type of dispute resolution first are not uncommon. Even if someone is at a disadvantage so as to lose the dispute resolution, that will not prevent her or him from filing a legal action. Again I will be interested in what others think. Cheers. Geoffbrigham 21:52, 27 December 2011 (UTC)
I disagree Michael. My impression is that those with little knowledge of procedure and the laws/rules are likely to fare much better on English Wikipedia (that is what you were referring to?) than in the US court system. A persons right to use the legal system is already restricted by the cost of going to court. Compared to that this restriction is small and reasonable and will help protect the WMF from being dragged into court on spurious cases merely designed to bleed money from the MWF and blackmail them into settling to keep down court costs.Filceolaire 00:54, 28 December 2011 (UTC)
The WMF knows how to take care of itself; it hired Geoff. Someone on this talk page needs to look out for those who might be harmed or disenfranchised by the WMF. I don't believe that these people should be forced to enter the Wikipedia talk page battlefield, where without an attorney to guide them and to tell them the do's and don't's, they'll make a bunch of mistakes that others might take advantage of. --Michaeldsuarez 14:12, 28 December 2011 (UTC)
Personally I have found the discussions relatively balanced, and WMF has given up a number of key provisions because of the community feedback (e.g., the indemnity clause). As the WMF attorney, my goal is to come up with a document that works for WMF and the community. That said, I understand your point, Michaeldsuarez, and I don't intend to dismiss it. (As a sidenote, unless I'm mistaken, lawyers in the community have participated in the discussion.) In the end, we are doing something completely revolutionary: We are engaged in an in depth mutual collaboration on the drafting of the terms of use. It may not be a perfect process, but I think this is the first time a major website has engaged so closely with its community on such a project and has listened, made changes, redrafted because of community concerns. Maybe I'm too idealistic, but I think this is pretty cool. Geoffbrigham 15:09, 28 December 2011 (UTC)
I must say, I have been extremely surprised by your willingness to consider objections and then to make modifications based on such arguments. This is most praiseworthy of you. However, this particular very positive talk page process is solely dependent on such laudable characteristics of yours, and cannot at all be taken as representative. If you happened to have been a different type of lawyer - mean, bullying, one who delighted in tearing down others, needling and insulting in response to disagreement - then the process would have been far different. Moreover, in discussing the Wikipedia environment, I often make the point that there's a strong aspect of "Where one stands depends on where one sits". In this case, if you don't feel like you're under attack, you can respond with equanimity. If you were frustrated about something personally very important to you, and had to wade through a bunch of comments e.g. calling you a censor, accusing you of unethical behavior, mixing in various insults - well, it wouldn't be "pretty cool" at all - instead, full of flames. -- Seth Finkelstein 15:44, 28 December 2011 (UTC)
I agree with Michaeldsuarez. I think the (should be) dispositive answer is that on English Wikipedia at least, there's a good chance people in such a dispute, who are forced to "run the gauntlet" of wiki-battle, will end up indef blocked for violating no-legal-threats. And then further, when they subsequently talk about their negative experience with Wikipedia's culture, they will be hounded forevermore by Wikipedia apologists, who will demand why they are not wearing a scarlet letter "B" to fully disclose their fallen state. Pragmatically, I suggest you'd want to keep people in a dispute with WMF as far away as possible from situations where anyone can insult, I mean, edit. And just on fundamental fairness, if WMF is not going to take responsibility for what is likely to happen to these people (i.e. when they get personally attacked, "nobody home", that's specific community members acting on their own), it shouldn't be making such requirements. -- Seth Finkelstein 15:25, 28 December 2011 (UTC)
I feel like we have confused "first" with "only". C'mon guys: is it really that onerous to tell users to attempt on-wiki resolution before going screaming off to the WMF staff or the court system? It says, "first seek resolution" on-wiki. It does not say "spend six months dealing with on-wiki resolution". A single comment on a talk page meets this very minimal requirement. Requiring so trivial an effort as a single talk page comment cannot possibly infringe on someone's rights to use the legal system. WhatamIdoing 01:08, 29 December 2011 (UTC)
I don't think there is confusion. Rather, it's objections to "If you have a dispute with the zoo, the management requires that you must first go sit in the monkey house (and don't blame the management for what those monkeys throw at you, they're acting on their own)". And I'd say you do underestimate the difficultly, since you're an "insider". For heaven's sake, there's people who don't even know that articles HAVE "Talk" pages. And then there's the whole wiki-editing mess. Take a look at the reactions of a sophisticated person (but not a dedicated Wikipedia editor) in "The Closed, Unfriendly World Of Wikipedia". And again, as Michaeldsuarez pointed out, the newbie is likely to make mistakes, which can be used against them. Let's not go around this endlessly. The negatives are well, well, known. -- Seth Finkelstein 02:46, 29 December 2011 (UTC)
I didn't say Wikipedia resolution was very easy, I just said that, for someone who doesn't know the system, the courts are worse (and apparently Paypal is even worse than the courts). Find the email address to send an email to OTRS is not that difficult and fulfills the requirement to first seek resolution on wiki. If the systems are not as transparent as they should be that is an argument for making them better, not an argument for encouraging people to go to the courts.Filceolaire 21:09, 29 December 2011 (UTC)
You're apparently viewing this as akin to a "best practices" recommendation, while I'm concerned it's a legal "gotcha". That is, while perhaps someone should use OTRS, I don't think that if they do not, the result should be "Gotcha! According to WMF Terms Of Use, you had to do this obscure thing first, so you lose automatically". And I'll re-iterate, I don't think it's fundamentally fair for the WMF to require any interaction with people where it will subsequently deny responsibility for personal abuse. -- Seth Finkelstein 00:02, 30 December 2011 (UTC)

I wonder whether this line is necessary: any reasonable court will throw a lawsuit out after they ask the plaintiff "well... did you talk to them?" and the answer is "no, I didn't." Seb az86556 01:16, 30 December 2011 (UTC)

I'm thinking that the answer might be more along the lines of "I sent a message to (name redacted), and got a reply saying I was a troll and had a conflict of interest and should stop trying to censor them. I felt that further communication with these people wasn't going to be productive.". -- Seth Finkelstein 01:40, 30 December 2011 (UTC)
Yeah, whichever. In any case, the sentence under discussion is quite useless. Depending on what the presumed plaintiff actually complains about, if it is really a legally enforceable grievance, this particular rule is null and void anyways. If it isn't, they won't have any legal standing. Perhaps someone could give one or two specific examples where this rule would kick in. I can't really think of any. Seb az86556 03:09, 30 December 2011 (UTC)
Seth, I certainly do mean it to be a legal "Gotcha" for anyone who decides to drag us into court before trying to sort the problem some other way. Remember that if it does go to court our lawyer will probably end up saying - in legal language - that they are a troll, have a conflict of interest and are trying to censor us so I don't see how that is better.
Seb, The example is that a reader gets upset about an article or an editor gets upset about how his edits were received. The editor talks to his lawyer and demands the lawyer sues our ass off. The lawyer reads the Terms of use and tells the complainer he has no chance (if we did a good job on the Terms of use and haven't done something really stupid). The terms of use keep us out of court even if we do something a bit stupid. Filceolaire 14:41, 30 December 2011 (UTC)
I agree with Filceolaire and WhatamIdoing, but I fear we do not have consensus on this relatively important point. In reality, from what I see, most (but not all) potential litigants generally try some form of dispute resolution with the community. It usually makes economic sense for the potential litigant to give it a try first. So I think the most important thing is to make people aware of such possibilities in informal dispute resolution. For that reason, and because I don't believe we have consensus, I have modified Section 12 to read as follows:
We hope that no serious disagreements arise involving you, but, in the event there is a dispute, we encourage you to seek resolution through the dispute resolution procedures or mechanisms provided by the Projects and the Wikimedia Foundation. If you seek to file a legal claim against us, you agree to file and resolve it exclusively in a state or federal court located in San Francisco County, California. . . .

Geoffbrigham 17:17, 30 December 2011 (UTC)

That "encourage" is fine by me in terms of phrasing (even if I personally wouldn't encourage based on my estimation of likely outcome). Thanks for listening! -- Seth Finkelstein 17:32, 30 December 2011 (UTC)
I'm fine with this revision as well. Thanks Geoff. --Michaeldsuarez 13:04, 31 December 2011 (UTC)

Legal Review[edit]

As a step towards finalizing the document, I did a read-through today from beginning to end. I made these edits. If anybody has any concerns or questions, please do not hesitate to say so. Cheers. Geoffbrigham 18:46, 26 December 2011 (UTC)

I did another legal review and made these changes I will likely do another read through on Monday to ensure editorial consistency. Because these edits were at the last minute, as an exception to the Dec. 31 comment deadline, discussion on these specific changes will remain open until January 5. Geoffbrigham 00:54, 1 January 2012 (UTC)
While "Projects and their editions in various languages" has some ambiguity, as I noted above, changing it to "Project editions" has the problem that this is a new phrase no one has used before and is not defined. I suggest the first time it appears it should be
"Project editions in various languages etc." 
or even
"Project editions (some projects have editions in multiple languages each of which has it's own
policies and it's own community of volunteer editors who develop and enforce those policies)".
Filceolaire 17:26, 1 January 2012 (UTC)
In the introductory section, we do link to a page that explains somewhat what "editions" are, but in the Overview section, in response to your feedback, I came up with this new reformation: "The community undertakes the critical function of creating and enforcing policies for the specific Project editions (such as the different language editions for the Wikipedia Project or the Wikimedia Commons multi-lingual edition)." Hope that works. Thanks, Filceolaire. Geoffbrigham 03:04, 3 January 2012 (UTC)
Works for me :) Filceolaire 16:22, 3 January 2012 (UTC)

_____

I did another final review and made these changes. If anybody has objections, feel free to let me know. Geoffbrigham 04:58, 3 January 2012 (UTC)


Community Responsibility[edit]

Refer to: Talk:Terms_of_use/Archives/2011-11-08#Community_Responsibility.

Currently, the overview reads: "The community undertakes the critical function of creating and enforcing policies on Projects."

But, the section "Management of Websites" reads: "The community has primary responsibility to address violations of Project policy and other similar issues."

I find these statements a little contradictory in nature. And, again, the community should not be held responsible for maintenance. That is what the community does, not what it should be bound by these terms of use to do.--Siddhartha Ghai 20:54, 28 December 2011 (UTC)

I do not understand this comment. You seem to say:
  1. The community does this, but
  2. the community should not be responsible for doing this.
Why should the local communities not create and maintain their own policies? Why should they not be the first and most common enforcers ("primary responsibility") of their own policies? WhatamIdoing 01:02, 29 December 2011 (UTC)
@Siddhartha. I agree with WahtamIdoing. But, if it is any comfort, these statements are more informational and less contractual in nature. Geoffbrigham 17:03, 30 December 2011 (UTC)
@WhatamIdoing: Sorry, I should've been more clear in the first place :)
I meant that the community is supposed to be doing this kind of work(The community does this.). This is in the sense of "Humans should not be polluting the environment." or "There should not be wars." or "People should not drink alcohol."
But, the community should not be made responsible by the TOU to be doing this work. This is in the sense that even though "People should not drink alcohol", you don't shoot a person who does. The communities should be upholding policies, but adding that in the TOU makes them legally responsible for it.
For large communities such as the english wikipedia, this statement won't make much of a difference. But, for small projects with small communities, putting this statement here means that the small community of say, 15 people, can be held responsible for what happens in the project. Now, obviously, it is difficult for anyone to blame 1500+ admins of en-wp if a copyvio isn't caught and removed within a specified time-limit. But if the number of admins stands at, say, 5; it is very easy to hold them responsible, and sue them in court. If this statement is kept in the TOU, such people(who happen to sue a wikipedian) will have some solid stuff to say in court: "According to the TOU of that site, he/she was responsible for upholding the policies; and he/she didn't remove my copyrighted content within x amount of time. I want a zillion dollars compensation."
@Geoffbrigham: Isn't the TOU a legally binding agreement between the reader/user and the WMF? If it is, won't all statements be considered legally-binding? If this statement is only for the sake of information, it shouldn't be in a legal document.--Siddhartha Ghai 23:02, 30 December 2011 (UTC)
@Siddhartha. These provisions were included because of previous feedback that we should be clearer that the community, not WMF, is responsible for carrying out enforcement functions. This was the subject of extensive discussion. So I would like to leave the concepts in if possible. Maybe we can reword as follows:
"Within its discretion, the community has the primary role in addressing violations of Project policy and other similar issues."
"Within its discretion, the community has the primary role in creating and enforcing policies on Projects."
I'm not committing to this language and might omit the phrase "within its discretion," but I'm putting it out there for discussion. (BTW, not everything in a contract is "enforceable"; often informational provisions - which may not be enforceable - are important for explaining the context. But I understand your point, Siddhartha.) Hopefully, the above language addresses your concern (which I find well made, especially with respect to smaller communities). Geoffbrigham 02:32, 31 December 2011 (UTC)
I've had a look at some of the archives, and it seems that the objective of this (and other such) statements in the ToU is to
  1. Make sure the WMF isn't liable for something it can't and doesn't control (i.e the content)
  2. Give certain amount of legal backing to community actions (such as blocking of users)
I can understand and agree that both these are needed, but the responsibility concern I have seems to be an unintended consequence of this. As I see it, and IANAL, the wording proposed the last time and currently in use in the Overview ("The community undertakes the critical function of creating and enforcing policies on the specific language editions of the various Projects.") seems to be better at alleviating my concern than the language proposed now.
However, if the current proposed language seems a better alternative from a legal perspective, I'd rather prefer the second one since it specifies that the community creates the policies (and not only maintains them), and avoids the vague other similar issues.
As for "Within its discretion", for the second choice, it seems rather pointless since the community (obviously) creates policies at its own discretion. For the first choice (if that's finalized), I'd rather have the discretion part since it should be at the community's discretion how it addresses policy violations(example: whether to delete a non-free logo without a copyright notice or to add a copyright notice and keep it instead).--Siddhartha Ghai 04:03, 31 December 2011 (UTC)
Siddhartha, not sure if the proposed language is that much better either. Maybe we could keep the first sentence as is ("The community undertakes the critical function of creating and enforcing policies on Projects."). And we rewrite the second sentence ("The community has primary responsibility to address violations of Project policy and other similar issues."). The rewrite would be: "The community has the primary role in undertaking the critical function of addressing violations of Project policy and related issues." Does that work for you? Geoffbrigham 20:26, 31 December 2011 (UTC)
Keep the first sentence("The community undertakes the critical function of creating and enforcing policies on Projects.") yes.
rewrite the second sentence ("The community has primary responsibility to address violations of Project policy and other similar issues.") to "The community has the primary role in creating and enforcing policies on Projects."
I want to avoid the "other similar issues/related issues" since its quite vague as to what these issues are. And there's nothing in section 10 to specify these issues either. So this should either be clarified or left out.
As for "The community has the primary role in creating and enforcing policies on Projects." vs "The community has the primary role in undertaking the critical function of addressing violations of Project policy."; I don't really see a difference (but, ofcourse IANAL).--Siddhartha Ghai 23:13, 31 December 2011 (UTC)
I will make the change more or less as you suggested. Because this is a last minute change on a major part of text right before the end of the comment deadline, I will make a limited exception: if people have an objection to this specific edit, they can do so until Jan. 5. Cheers. Geoffbrigham 23:24, 31 December 2011 (UTC)
Just a note, I just had an extensive discussion with SidG on IRC, and I wanted to note that I think this change is a good one. I think the word "responsibility" (and, to a lesser degree, "function") could seem to indicate an obligation, and hence accountability and a need for consistency on the part of the community. This would not be in line with how things work; it is common for policies to be enforced inconsistently, on an ad hoc basis (the page w:en:Wikipedia:Other stuff exists captures the concept pretty well). I think the word "role" will be more readily understood as descriptive rather than proscriptive, as I believe it's intended to be. This sentence is not meant to assign responsibility, but to describe normal operation of the site. -Pete F 00:45, 1 January 2012 (UTC)
@Geoff: Thanks for the change, and I know this is really last-minute. I really hadn't expected the problem to surface again after the last time, and I should've kept an eye on the changes happening here, but I didn't :(
@Pete: Thanks for all the help that you provided, and I agree that the intent of this statement being informational should come out as clearly as possible, and the ToU should in no way apply legal responsibility for the community as a whole.--Siddhartha Ghai 05:51, 1 January 2012 (UTC)
@Siddhartha - appreciate your raising the point and that we were able to find a solution. Allow me to pass on my new year greetings. Same to you Pete. Geoffbrigham 17:08, 2 January 2012 (UTC)


Can we "Encourage' people to "assume good faith"?[edit]

In section 4 of the TOU we no longer 'expect' you to be civil and polite". Now we "encourage" you instead. If that is all we are doing then can we encourage you to assume good faith too? My proposed rewrite for this sentence would then read (additions in bold deletions struck out):

We ask encourage you to be civil and polite in your interactions with others in the community,
to act in good faith, and to make edits and contributions aimed at furthering the mission
of the shared Project and we encourage you to think the best of other editors and assume they
too are acting in good faith as best they can.

Commenters please note that this sentence is the non-legal preamble to a list of specific prohibited behaviours.

Sorry to bring this up at this late stage. Happy new year to all. --Filceolaire 17:56, 1 January 2012 (UTC)

How about: "We encourage you ... to act in and assume good faith ...." I'm making the edit, but let me know if it doesn't work. Geoffbrigham 02:53, 3 January 2012 (UTC)
I believe that newcomers who aren't familiar with en:WP:AGF will mistakenly believe that "assume good faith" in the current contexts means "to take on" / "to embrace" / "to adopt" the value / concept / attitude of good faith. Further clarification is needed here. --Michaeldsuarez 14:18, 3 January 2012 (UTC)
Addendum: It should also state who users are supposed to be assuming are acting in good faith. Perhaps it should say, "[…] to act in good faith and to assume that other Project members are working in good faith." --Michaeldsuarez 14:41, 3 January 2012 (UTC)
Switching the last 2 clauses helps improve this. Describe how the user acts first (which means we avoid any misunderstanding over the request to "act in good faith"), then we can refer back to what was said about one's own behavior when discussing others. Try this:
"We encourage you to be civil and polite in your interactions with others in the community, to make edits and contributions aimed at furthering the mission of the shared Project, and to understand that most other users, even if their views differ, are usually trying to do the same."
("Most"/"other" and "usually" - some redundancy, can't decide which!) FT2 (Talk | email) 15:00, 3 January 2012 (UTC)
I like this but I would change "understand" to "trust" or "believe":
"We encourage you to be civil and polite in your interactions with others in the community, to make edits and contributions aimed at furthering the mission of the shared Project, and to trust that most other users, even if their views differ, are usually trying to do the same."
We really do ask them to make this act of faith with every other user they meet even if doesn't seem logical. Filceolaire 16:31, 3 January 2012 (UTC)
We can't say we encourage them to "trust (or believe) [all] other users" are editing with good motives. That's too unrealistic, will be seen as such, and destroys credibility for what we do ask. (Specially when we seasoned Wikimedians clearly don't "trust" this of "all users" ourselves). AGF is a lot for many people. Asking them to understand most others (usually) wish to help, admits there are exceptions but asks them to believe it of the majority which is possible. It's the voice of experience, "we've found most people want to help, even if their views differ", rather than encouraging a belief in all. We might get half a loaf that way, we won't ever get all and will lose much of the half if we appear to exaggerate.
Replacing "understanding" that most want to help, with a request to "believe" or "trust" all want to help, wouldn't work, however noble. FT2 (Talk | email) 17:24, 3 January 2012 (UTC)
So if you only trust some other users how do you choose them? Based on their beliefs and opinions or based on their actions? I really am asking you to give each person you meet a chance. Even if they seem to be a bit dodgy I do encourage you to give them a second chance in case they just don't understand yet how we roll here. And that is what I think we should encourage in this clause of the TOU.
If English Wikipedia doesn't quite live up to this now then I would like the TOU to encourage en:WP to change. OK? Filceolaire 00:35, 4 January 2012 (UTC)

┌───────────────────────┘
There's a difference between suggesting "understand most people will be X" and "believe all people are X". In everyday life one can much more easily accept "most people are trustworthy", but telling someone "believe that all people are trustworthy" will get you nowhere, people will understand it's unrealistic and reject it. Half a loaf is better than none. You can't ask people to believe something that's patently untrue, even if you think it would be good for them. (Even seasoned Wikimedians don't believe "all users" want to help!) You can ask their understanding it will be true in most cases or usually. FT2 (Talk | email) 10:56, 4 January 2012 (UTC)

I'm going to take out "and assume" upon further reflection and reading this discussion. We can rely on community policies to spell out these principles and nuances. Since the comments are out of deadline, I don't believe it would be fair to undertake significant changes in wording for those who followed and contributed to the language earlier. Many thanks. Geoffbrigham 14:17, 4 January 2012 (UTC)

Final observations[edit]

Some last points on the final excellent draft, and Happy New Year!

  Section Observation Minor change to consider
1. Summary Reword 1st line (1/ all text is "human readable", pointless word; 2/ be explicit about target) "This is a simple summary of the Terms of Use for the websites and systems we host for public use.
2. Overview States chapters aren't responsible for WMF actions, doesn't say WMF isn't responsible for their actions. "nor is WMF responsible for their actions." (or the actions or statements of any officers, employees and agents?)
3. Content States some material may be objectionable, doesn't state some may be incorrect. Needs to be said here. "You may find some material objectionable or incorrect"
4. Refraining "Vandalism" is vague and legally has a very limited meaning compared to how we mean it (for example our "vandalism" is trivially easy to fix so one might argue no tangible provable harm is done). We have good definitions of vandalism, otherwise the term is meaningless for legal purposes.
It's also not "harassment".
Move to "Engaging in Disruptive misuse":
"Vandalism. (We define vandalism as any addition, removal, or change of content in a deliberate attempt to compromise the integrity of our content, or reckless as to whether it is compromised)"
5. Engaging Usefully blockable loophole? "misrepresenting your affiliation with any individual, entity, organization or cause"
6. Licensing Trivial edit "confirm the public domain status"
7. DMCA "This address" after an email address is a bit confusing, and our agent isn't clearly shown. "or mail a request to our agent at this address"
8. Management of websites
+ Termination
References "accounts" in several places but overlook IP or other access.
  • "Ban a user from editing or contributing or block a user's access"
  • "in the extreme circumstance that any individual has had his or her access blocked"
  • "is prohibited from creating or using another account on, or IP address on, or engaging by any means with, the same Project, whether directly or any other way, unless..."
  • "the Wikimedia Foundation itself will not... block a user's access solely because of."
  • "Especially problematic users who have had access blocked on multiple Project editions"
  • "In certain (hopefully unlikely) circumstances.... block your access ... If your access is blocked or otherwise terminated for any reason"
9. Management of websites (2) Do we want to say clearly that a block/ban usually refers to editing and interactive access, not good faith reading? "For clarity, blocking and banning usually means access to editorial or interactive systems we provide, and accounts or IP addresses associated with the blocked user. Unless stated, being blocked or banned does not usually prohibit reasonable good faith access to our websites for the sole purpose of reading public content only."
10. Management of websites "And must so act" implies a duty to act on some readings? "Authorized members of the Wikimedia community are those users who have specific authorization to act, and are constrained to so act"
11. Jurisdiction Doesn't "discovery of facts" clauses often refer to when facts could reasonably be known, not when actually known? Flow can also improve. "must be filed within one (1) year after the pertinent facts underlying such claim or cause of action could with reasonable diligence have been discovered, or within the applicable statute of limitations if earlier (or be forever barred)."
12. Disclaimers Clarify "Some states or jurisdictions do not allow the types of disclaimers in this section. Where barred by law, and only to the extent mandated by law, they may not apply to you."
13. Limitations on liability Is this limit per single claim or per "cause"? "In no event shall our liability exceed one thousand U.S. dollars (USD 1000.00) in aggregate for any one incident [or XX in aggregate for all incidents with a common cause]" (not sure the legal wording)
14. Modification Clarify "if you do not agree with our Terms of Use, you cannot use our services and your sole recourse is to cease to use them."

Hopefully useful! FT2 (Talk | email) 19:50, 1 January 2012 (UTC)

Thanks FT2. I will consider these proposals. For all, discussions on FT2's proposal here may continue until January 5. Cheers. Geoffbrigham 17:10, 2 January 2012 (UTC)
These all look good to me. Filceolaire 12:34, 2 January 2012 (UTC)
FT2 - my responses are below:
1. (a) "Human-readable" has proponants and haters; it is consistent with Creative Commons summary; given the discussion, I would rather keep it. (b) Like the idea. How about: "for the websites and systems that we host." Parts of the user agreement talks about secured areas (e.g., Sec. 4: "Knowingly accessing, tampering with, or using any of our non-public areas in our computer systems without authorization"), so I would avoid saying "for public use."
2. I'd rather not go into as much detail re chapters, especially since this is not an agreement with chapters. We address these issues in the standard chapter agreement (which are available online).
3. We say "erroneous" in Section 3(a), and we are clear about this in Section 14 as well ("We make no warranty that our services will meet your requirements, be safe, secure, uninterrupted, timely, accurate, or error-free, or that your information will be secure."). I think this is good enough.
4. There has been discussion on this. If I'm not mistaken, I believe that the conclusion was to allow the word to be defined by community policy. Honestly, I think it is impossible to define all these terms. Their main purpose to to inform users of the general type of conduct that is not acceptable, and we leave to the community to define the prohibited activities more precisely. I guess we could say something like this: "Engaging in harassment, threats, stalking, spamming, or vandalism (as defined by Foundation or community policy)." But it does make it a bit more bulky.
5. "Entity" includes organization. We might want to consider "cause," but that may be too broad. I prefer to leave as is, unless we have firm examples how others have misrepresented their causes.
6. Agreed. Made edits that capture your point.
7. Agreed. Made edits that capture your point.
8. Agreed. Really good point. Made edits that capture your point.
9. I don't think we need to include this. I submit it is self evident that we can't block reading the site.
10. I'm fine with this. Edit made.
11. I'm fine with this. Made edits that capture your point.
12. There are legal reasons to write this sentence as it is, but I see your point and made some changes that I think capture your point in part.
13. I prefer to leave it as is. I tried reformulating, but my efforts seemed to raise more questions than they answered.
14. I'm OK with the present language.
FT2 - Many, many thanks for all these useful comments. I really appreciate your time thinking about these details, which are extremely important. I know this took lots of time, and I thank you for it. Geoffbrigham 02:49, 3 January 2012 (UTC)

┌────────────────┘
Quick follow-up, and thanks!

1. Concern here is these TOU may actually be incorrect TOU for non-public pages. Unlikely but for someone who gains access to a page displaying non-public data, legitimately or otherwise, some terms are highly inappropriate. Case in point: regardless someone's authority to access the pages, are hosted internal wiki/otrs pages CC-by-SA with right to copy? (TOU says Re-use of content that we host is welcome, and this statement is completely unqualified. Surely wrong here.)

Minimal suggestion - Just take the text from section 4 and place it near the beginning and at the end of the summary - "These TOU apply only to our public pages. You must not knowingly access, tamper with, or use any of our non-public areas in our computer systems without authorization."
I have insomnia, so let me try to tackle this now. So the summary section is not technically part of the agreement. If there is an issue, we need to resolve it within the TOU. I see your point on "re-use of content" but we could solve that by adding the words: "Re-use of content that we host publicly is welcome." My question is whether we have just some discrete changes to make in the document (which I prefer) or whether we should have a general statement that this agreement addresses publicly-hosted material. My guess is that your favor the latter. Geoffbrigham 09:54, 3 January 2012 (UTC)
Non-public pages may have very different terms, or varying terms (depending on the pages). A TOU suited for public-facing pages can hardly be expected to suit pages that may variously be intended for so many different uses. Researchers, staff, OTRS, external associates, tech team, developers, all access nonpublic pages. Some will have contracts setting out requirements, some won't. Nonpublic pages come in many flavors as well. Going through the TOU to locate and make the various subtle exclusions or modifications for all of them would hamper the ease of reading of our public TOU (which are already long and shouldn't be made any longer or complex than avoidable) and would itself be a difficult task, since any edits and the current content would then need to be additionally reviewed for validity against a wide, varying, open-ended range of uses and classes of user, rather than just one kind of use and user.
Put simply I don't trust that TOU designed for public pages will easily and simply lend themselves to covering private pages as we'd need, without compromising their main purpose or their ease of maintenance. I also worry that attempting to make them fit such a wide variety of pages and web/system resources would make them considerably harder to draft well, scrutinize well, to be sure we've included/excluded major issues and errors in all scenarios/areas they may be used, and more clumsy to read.
As a result, I think it's going to be best and certainly least work, to be clear these TOU only apply to public pages (as I posted above), and handle nonpublic pages completely separately, eg by creating modified Terms of Use for nonpublic pages and computer systems that one agrees to as a bullet in nonpublic data policy. (Anyone who can access nonpublic pages almost always has to agree to some salient key policies anyhow).
FT2 (Talk | email) 13:27, 3 January 2012 (UTC)
OK, I changed the first sentence of the Overview Section to read: "These Terms of Use tell you about our public services at the Wikimedia Foundation . . . ." Geoffbrigham 14:27, 4 January 2012 (UTC)
You know, I think you're probably right, that might be all it needs... (though I haven't checked!) -- thanks! FT2 (Talk | email) 15:07, 4 January 2012 (UTC)

2. Surely "WMF isn't responsible for chapters" is as salient as "Chapters aren't responsible for WMF"? Conflating a chapter website with WMF, or a statement by a chapter officer as WMF, is easy, especially if the chapter uses a wikimedia.org subdomain (ru.wikimedia.org uk.wikimedia.org mk.wikimedia.org nyc.wikimedia.org et.wikimedia.org no.wikimedia.org pl.wikimedia.org rs.wikimedia.org ua.wikimedia.org co.wikimedia.org tr.wikimedia.org).

I'm just unpersuaded here. We describe chapters as "legally independent and separate from the Wikimedia Foundation" in the Overview section, which I think makes the point sufficiently. For example, it could be possible, I guess, that someday we enter into a written agreement with a chapter to share responsibilities on a project which may have shared duties, etc. That is, I don't want to go into too much detail since we really don't know what the relationships may be in the future if there are written contracts that redefine that relationship for a particular project. Geoffbrigham 09:54, 3 January 2012 (UTC)
Asked twice, told it's a non-issue. Fair enough :) FT2 (Talk | email) 13:27, 3 January 2012 (UTC)

3. My concern here is "small print". 3a simply states a user may find objectionable matter, but goes on to give examples including "erroneous" (and also "misleading" and "mislabeled") content. The big bold text should say "objectionable or erroneous" so it matches the sentence which follows and doesn't look like "erroneous" was sneaked in under the radar.

OK. I understand now. Edit made. Geoffbrigham 09:54, 3 January 2012 (UTC)

4. (a) "As defined by the relevant community" works fine for me, in light of your comment. (b) Spamming and vandalism aren't "harassment" though, they're "disruptive misuse".

4(a) FT2, I'm going to back-peddle on this (with my apologies). The more I think about it, the more I want to leave the terms as they are. There was significant community discussion, and I don't feel right about changing this now. Also I can imagine there are some smaller language editions that have not yet defined the terms. I don't want to restrict the community from reacting if there is not a written policy. (b) I agree, but the title is "Harassing and Abusing Others." I think this captures the category close enough. Geoffbrigham 09:54, 3 January 2012 (UTC)
Okay, but bookmark for future, because a lot of computer legislation and civil remedies are predicated on breach of TOU, and the major kind of abuse we might want to enforce currently has a term so vague as to possibly not be legally enforceable. I see the point about not rocking the boat at this stage, but would like to see a note made to look again at this point and tighten it up, when the TOU come up for review or enhancement in the future. FT2 (Talk | email) 13:27, 3 January 2012 (UTC)

5. "Cause" is indeed broad. That's considerably to our benefit. Typical scenario, a user who posts about Topic X (abortion, homeopathy, laser teeth cleaning, some conspiracy theory, ...). He denies real-world involvement. Later it transpires he indeed doesn't have connection with an "individual" or "entity", but posts massively on advocacy forums, hosts a couple of big websites about them, consults or practices personally or presents himself as an expert or specialist in the field, etc etc. That's not too uncommon. So while "cause" is broad, it's also greatly and solely to our benefit. It can capture cases where no "entity" or other individual is involved. It brings this kind of deception by an individual into line with misrepresenting a corporate or other affiliation.

Yep. I understand your point. My concern is that we are post-deadline, and I imagine this inclusion could spark strong debate given the breadth of the word "cause." If this scenario comes up, we can maybe throw it under this existing provision: "With the intent to deceive, posting content that is false or inaccurate." Also, if it becomes a real issue, communities can pass their own policies to deal with it. Geoffbrigham 09:54, 3 January 2012 (UTC)
We can do that. The term we're discussing is about concealing or deceiving about affiliations and real-world connections; I suppose if someone denies personal activism, their post is indeed "content" and has been "posted to deceive" so it works. But there is an inconsistency. If that logic works for "causes" then presumably the whole "misrepresenting your affiliation with any individual or entity" line is equally redundant by the same logic. I can imagine editors who deal with POV pushers might prefer a "no misrepresentation" term to be explicit even in the absence of an affiliated "entity or individual". That said, obviously it would be a broad term, spark lengthy discussion as you say. So leave as is. It works legally and that's what counts. I'd be interested on feedback on this though. FT2 (Talk | email) 13:27, 3 January 2012 (UTC)

9. Sure we can. We could trivially block an IP or range from being served pages. It's still worth explicitly saying we don't usually ban read access in the context of blocking/banning:

(a) Non-blocking of read access might otherwise be argued as evidence of no real ban?
(b) More important, someone who has been banned must have legal clarity they are allowed to continue to read under TOU. In particular noting recent attempts to construe breach of TOU as a criminal act [1][2].
OK. I made this change in response to your feedback. Geoffbrigham 09:54, 3 January 2012 (UTC)
Not quite going to have the right effect, found a few issues, but I think I've solved it without much change overall.
  1. A user who has been blocked/banned has already "violate[d] these Terms of Use or other policies". Saying X won't happen unless they do an act they've already done is tautological and won't assure them any rights.
  2. Also their right to access contribs (of anyone) - eg by visiting the Special:Contributions page, diffs and old revisions (whoever by), or project and discussion pages technically containing snippets of their old posts - may be conditional on read access not being revoked, eg in the case of stalkers and serious harassers. Best to avoid mixing up which posts will remain public vs. which rights the user will normally retain.
  3. Permit access to public pages for the purpose of reading (key point, if subtle, we need to permit access = the actual means by which they can read content), but then re-emphasize it's only granted for that one purpose (similar to how we double-emphasize "or be forever barred" in section 13)
  4. Fix a possible ambiguity for users banned on some projects but not others (states "the" Projects but the indefinite article could be ambiguous).
  5. Finally as public contribs could easily become deleted/suppressed, add "subject to applicable policies". TOU mustn't appear to guarantee public access to their contribs "will" be retained in all cases.
"If your account or access is blocked or otherwise terminated for any reason, you and other users will retain access to your public contributions your public contributions will remain publicly available (subject to applicable policies), and, unless you violate these Terms of Use or other policies [we notify you | stated | notified] otherwise, you may read still access our public pages for the sole purpose of reading publicly-available content on the Projects."
FT2 (Talk | email) 13:27, 3 January 2012 (UTC)
OK, rewrote Section 12 to address your concerns. Thanks.  :) —The preceding unsigned comment was added by Geoffbrigham (talk)
Thanks, much more comfortable with that sentence ! FT2 (Talk | email) 15:05, 4 January 2012 (UTC)

Others are all fine, thanks and glad to help, noting 13 (a shame!) and 14 (ok, not huge). Hope these help.

It sure did help. Thanks.Geoffbrigham 09:54, 3 January 2012 (UTC)

FT2 (Talk | email) 05:40, 3 January 2012 (UTC)

Some comments above. Geoffbrigham 09:54, 3 January 2012 (UTC)
Likewise, hopefully enough, and thanks! FT2 (Talk | email) 13:27, 3 January 2012 (UTC)
Further edits to the TOU have now resolved all issues I raised here. There are a couple of things I'd like to see discussed when TOU comes up for review in future (eg "causes" as well as "entities" and legal term "vandalism"), but none that are urgent and especially in view of timing, none that warrant keeping it open for. Thanks for a great job, Geoff! FT2 (Talk | email) 15:12, 4 January 2012 (UTC)

|}

Non-responsibility for (1) WMF-hosted teams, (2) staff in a personal capacity, (3) WMF level volunteer tools[edit]

Just spotted these. WMF has a number of semi-official teams such as ComCom, OTRS, etc. They may be seen as speaking "for" WMF and they handle sensitive material. These are close enough to being WMF teams/committees that arguably WMF might be held to account for their actions or the actions of their volunteers. A similar problem arises with staff who may also act in a personal capacity as editors or volunteers. WMF should not be responsible for these teams, or the actions of volunteers within them, or staff when not acting in their WMF roles.

Privacy-related tools such as CheckUser/Oversight are also arguably granted or controlled at WMF level (we have a WMF policy on them and WMF can unilaterally remove them). Users also identify to the Foundation and must follow WMF policies on them, which could arguably be seen as entailing some kind of responsibility for supervising their actions or for a breach. Do we need to disclaim or clarify this in any way?

Possible wordings As well as websites, we also host a number of volunteer-operated teams and groups to support our work and communities. In some cases officers, employees or agents may participate in a personal capacity in these teams. Notwithstanding our endorsement of these teams and support for their work, these teams are volunteer-sourced and the Wikimedia Foundation is not responsible for their actions, or the actions or statements of individual team members. Our staff may also work within our communities in a personal capacity. We are not responsible for the actions of members of staff either outside their work capacity or in a personal capacity.

We provide at community request, access for selected users to restricted tools and non-public data, primarily to prevent abuse. We require that such users agree to comply with our policies on their use. However the use and supervision of these tools and data are thereafter the personal responsibility of the individual user and their community; we neither monitor nor attempt to supervise them, nor are we responsible for any breach of these policies.

FT2 (Talk | email) 13:34, 2 January 2012 (UTC)

These are valid concerns, but I'm reluctant to specify this level of detail in the terms of use (especially at this late date). One concern about such detail is that it can change rapidly, requiring amendments to the terms of use. Maybe a better approach is to address these issues with a separate policy or maybe a board resolution that incorporates a policy page that can be changed easily. Geoffbrigham 01:19, 3 January 2012 (UTC)
As long as these issues are within WMF (ie your!) awareness so they aren't overlooked. Smiley icon.svg FT2 (Talk | email) 02:08, 3 January 2012 (UTC)