Talk:Terms of use/Archives/2011-12-13

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Warning! Please do not post any new comments on this page. This is a discussion archive first created on 13 December 2011, although the comments contained were likely posted before and after this date. See current discussion or the archives index.

Broken HTML structures in "Refraining from Certain Activities"

In Terms of use#4. Refraining from Certain Activities, there are broken HTML structures on the list of disallowed activities. This caused by unnecessary and extra spaces between each items. Now the text is

:Harassing and Abusing Others

::* Engaging in harassment, threats, stalking, spamming, or vandalism; and
::* Transmitting chain mail, junk mail, or spam to other users.

:Violating the Privacy of Others

::* Infringing the privacy rights of others under the laws of the United States or other applicable laws (which may include the laws where you live or where you view or edit content);

but should be

:Harassing and Abusing Others
::* Engaging in harassment, threats, stalking, spamming, or vandalism; and
::* Transmitting chain mail, junk mail, or spam to other users.
:Violating the Privacy of Others
::* Infringing the privacy rights of others under the laws of the United States or other applicable laws (which may include the laws where you live or where you view or edit content);

to correct the HTML output.

Or I suggest you to use HTML tags instead of Wiki Markup like below.

<dt>Harassing and Abusing Others</dt>
<li>Engaging in harassment, threats, stalking, spamming, or vandalism; and</li>
<li>Transmitting chain mail, junk mail, or spam to other users.</li>
<dt>Violating the Privacy of Others</dt>
<li>Infringing the privacy rights of others under the laws of the United States or other applicable laws (which may include the laws where you live or where you view or edit content);</li>
<li>Transmitting chain mail, junk mail, or spam to other users.</li>

Anyhow, the current text is clearly wrong and should be fixed.--aokomoriuta 22:45, 13 November 2011 (UTC)

Hi. :) I'm looking into your concerns here. The current markup and your recommended change seem to render the same in both Chrome and Firefox. Can you tell me what browser you're using? It would be helpful to see how this is rendering for you. --Mdennis (WMF) 16:15, 14 November 2011 (UTC)
Just wanted to add that I tried implementing your version 3, but I'm afraid that it appears to be incompatible with some hidden markup being used by the translation team, as it gave me an error "Multiple section markers for one section" and refused to save. Only if I wiped out the translation team's markup would it save, and we obviously don't want to do anything to hamper their work. If we can figure out the display issues with the existing, we may be able to implement your first proposed alternative provided that there are no compatibility issues. --Mdennis (WMF) 18:31, 14 November 2011 (UTC)

I checked your try but it seems wrong format for a tranalation page. How about below?

Harassing and Abusing Others</translate></dt>
Engaging in harassment, threats, stalking, spamming, or vandalism; and</translate></li>
Transmitting chain mail, junk mail, or spam to other users.</translate></li>
Violating the Privacy of Others</translate></dt>
Infringing the privacy rights of others under the laws of the United States or other applicable laws (which may include the laws where you live or where you view or edit content);</translate></li>
Transmitting chain mail, junk mail, or spam to other users.</translate></li>

I referred to the source of Terms of use#3. Content We Host, and the documentation. But since I'm just a translator, so that I have never managed tanslation pages, I don't make sure above is correct. User:Siebrand knows well so we might need his help. --aokomoriuta 18:25, 15 November 2011 (UTC)

That wasn't my actual try; my try didn't save. :) That was me checking to see if it would work if the tags were removed (it would). I'll ask Siebrand to take a look. --Mdennis (WMF) 21:18, 15 November 2011 (UTC)
It is true that the definition list is broken after each bold header (dd) and each itemized sublist (ul, which should be part of a dt).
Given that bold has been added with apostrophes markup for each item, it should have just been marked using the ";" to make it a true defined term.
So the layout should be:
A paragraph...
; Harassing and Abusing Others
:* Engaging in harassment, threats, stalking, spamming, or vandalism; and
:* Transmitting chain mail, junk mail, or spam to other users.
; Violating the Privacy of Others
:* Infringing the privacy rights of others under the laws of the United States or other applicable laws (which may include the laws where you live or where you view or edit content);
; [snip]
: ...
Another paragraph...
which gives the correct result:

A paragraph...

Harassing and Abusing Others
  • Engaging in harassment, threats, stalking, spamming, or vandalism; and
  • Transmitting chain mail, junk mail, or spam to other users.
Violating the Privacy of Others
  • Infringing the privacy rights of others under the laws of the United States or other applicable laws (which may include the laws where you live or where you view or edit content);

Another paragraph...

However, even if it's better and logically correct (at the Mediawiki markup level), each defined term (dt) and its definition data (dd, containing here the unordered bulleted list ul) appears in a separate list (dl), and these successive dl are not merged. For an unknown reason, MediaWiki, closes the current definition list (dl) for immediately reopening it in the generated HTML, if a defined term or definition contains any block element (here an unordered bulleted list ul). That's something to be fixed in HTML Tidy, because it can cause extra margins or borders (caused by CSS stylesheets) between each definition list. Mediawiki should only close a definition list (dl) and reopening a new one if there's at least an empty line between them to explicitly mark their separation. verdy_p 14:43, 20 November 2011 (UTC)
The alternative is to use a div element, but it does not exhibit the semantic of a block quote.
And if we use ";" and ":" to create blockquotes (standard in MediaWiki, too late to chage it), MEdiaWiki should really convert blocks of lines starting by ";" or ":" into either:
  • a blockquote element, if the first line only starts by ":" — because it is logically incorrect to use a definition list (dl) containing definitions (dd) without prior defined term (dt)— up to but excluding the first line that starts by a ";"
  • a definition list element (dl), for generating all the other lines starting by a ";"-line; in this definition list, all ";"-lines will become a defined term (dt), and all ":"-lines will become a definition data (dd)
instead if generating definition lists always (notably for threaded discussions like here). If this was used, we could even avoid using the "blockquote" element explicitly in the markup, to use the all-wiki markup like:
A paragraph...
:; Harassing and Abusing Others
::* Engaging in harassment, threats, stalking, spamming, or vandalism; and
::* Transmitting chain mail, junk mail, or spam to other users.
:; Violating the Privacy of Others
::* Infringing the privacy rights of others under the laws of the United States or other applicable laws (which may include the laws where you live or where you view or edit content);
:; [snip]
:: ...
Another paragraph...
which gives the similar visible result (but still without the blockquote semantic, and still with multiple unmerged successive 'dl' elements like above):

A paragraph...

Harassing and Abusing Others
  • Engaging in harassment, threats, stalking, spamming, or vandalism; and
  • Transmitting chain mail, junk mail, or spam to other users.
Violating the Privacy of Others
  • Infringing the privacy rights of others under the laws of the United States or other applicable laws (which may include the laws where you live or where you view or edit content);

Another paragraph...

verdy_p 15:03, 20 November 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 14:56, 6 December 2011 (UTC)

Is there a reason why "insulting" is not listed?

I consider the atmosphere of regular offenses as anti-productive. A group of people considering themselves as the upper circle is using insults to keep the base of cooperative authors decreasing. Some years ago there was few money but a lot of work to do. Now the work is quit done and there is too much money. There are too many people in a waiting loop for jobs at Wikimedia and its chapters. Those who do not have a paid job but would like to have one are acting most aggressive sometimes. Wikipedia is facing social closing. It would be a benefit for the project to ban insulting, offenses and scatology as we have it in Germany Wikipedia. -- Simplicius 22:28, 18 November 2011 (UTC) PS Please see Note by user Widescreen, now blocked user

Define "insult". Seb az86556 03:13, 19 November 2011 (UTC)
But how is that enforced? It's a longstanding point of mine that in the Wiki[mp]edia community, high-status members can quite freely be insulting to low-status members, with quite intense personal attacks permitted, even possibly encouraged for group approval, on those at the bottom of the status hierarchy. This happens basically because of the politics being that nobody wants to go against a high-status person on behalf of a low-status person (the full dynamic has a few exceptions, so don't jump on this, that's the one-line version for the overall case). If Germany Wikipedia has a good way to address this problem, it'd be interesting to hear about it. Note simply making a rule is very limited, as violations must be interpreted and sanctions administered. -- Seth Finkelstein 09:22, 19 November 2011 (UTC)
@Simplicius. I think you raise interesting points that require reflection. We did have a significant discussion on politeness and civility and came up with this language in Section 4: We expect 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. One issue we encountered is the difficulty of defining exactly what is civil and politie, but, by at least stating an "expectation," we hoped we communicated how we wish our interactions would play out. Hopefully that addresses your concern in part. Geoffbrigham 09:35, 19 November 2011 (UTC)
Well, Geoffbrigham, this expecting behaviour that is obviously contradictory to custom (esp. in German Wikipedia) shows that the people at WMF (or whom so ever) don't see the problem. I wouldn't assume that you don't want to see it but we should have made better efforts before to inform about the problematic social situation in German Wikipedia.
What nourish expectations that anyone obey real life standards in behaviour while worst insults are common, sometimes even tolerated by German admins and at the same time substantial not insulting critics, reviewing of articels and so on, are banned as beeing insulting? Looks like we still have to talk about situation of community and to define the problem. The problem is not "what is said" but "who is saying." Defining a rule to be reckoned against incivil behaviour would mean that either half of the German admins (and of course some other users, too) will have to leave the project or alter their attitude towards their own power and aggression. That's why I don't expect a rule like that by the WM. --Brummfuss 10:35, 19 November 2011 (UTC)
I think you've got a translation challenge here. "Expect" means two things in English. One is about the probability of something happening: "I expect that the Sun will rise in the East tomorrow morning", which is the equivalent of "I believe it very likely that the Sun will rise in the East tomorrow morning".
Geoff is using it here in the second sense, which is more like hope or want. It is like a parent saying to his or her child, "I expect you to be kind and helpful and well-behaved at all times". The parent honestly does not believe that the child will be kind and helpful and well-behaved at all times. The parent honestly believes it very likely that sometimes the child will be mean and unhelpful and badly behaved. But the parent is setting a goal or an ideal for the child's behavior, not trying to describe the facts. WhatamIdoing 20:41, 19 November 2011 (UTC)
I don't think there's a translation problem. It's the philosophical question whether or not the WMF can be compared to a parent. Seb az86556 00:38, 20 November 2011 (UTC)
Would changing it to "We expect you, regardless of your role or status within the community, [...]" be satisfactory? As the guy who started the "politeness and civility" thread, I would of course prefer excluding any mention of civility from the TOU. --Michaeldsuarez 04:24, 20 November 2011 (UTC)
Seb:I don't see any philosophical question at all. The Terms of Use are exactly to tell users how they should and should not behave. That is why they are here. Telling people how they should behave is acting like a parent. This is the WMF telling the projects "Don't make me come in there".Filceolaire 07:18, 20 November 2011 (UTC)
Not really. This is a legal document. "Expect" means one thing. "Demand" is another. "You must" would be even clearer if that's what's meant. A stop-sign says "stop" not "it would be nice if you stopped". Seb az86556 10:07, 21 November 2011 (UTC)
Seth, Bummfuss: If you believe these alleged actions by Wikipedia DE are wrong then I would have thought you would want the TOU to ban these actions. Your post above almost sounds as if you are saying rudeness by high status german editors is common so the TOU should allow it! Can we get back to the point. Do you have any suggestions for improvements to the wording of the TOU. Do you have any suggestions for enforcement of the TOU? Filceolaire 07:18, 20 November 2011 (UTC)
@Filceolaire, from my perspective, a selectively-enforced civility standard is worse than none at all. Because in practice it means that high-status people can violate it since it's not enforced against them, but low-status people can't flame back since it will be enforced against them. This is one area where the abusiveness is so blatant, from the highest levels, that I don't even bother about formalism. Regarding the wording, I'll "!vote" for what Michaeldsuarez said above. For enforcement suggestions, I wish I knew, it's a very old problem (and a big topic in itself). -- Seth Finkelstein 08:45, 20 November 2011 (UTC)
Enforcement is indeed a problem, and that's where the parent-metaphor fails. Parents are two persons, and they have to agree on enforcement which isn't always the case, but mostly. The WMF is at best 100 odd laizer-faire part-time parents who want their children to be completely independent and won't speak with one voice, especially when they cannot even understand what's supposed to be enforced. German civility might be easier because they'll be a few who understand it, but how do you enforce sanctions against insults in Azeri or Mongolian? The bottom line is that if the culture at German wikipedia is really what it's claimed to be, then there's noting the WMF can do short of an invasion, e.g. stripping the project of its independence. Seb az86556 10:18, 21 November 2011 (UTC)
I'm not very enthusiastic about mentioning this (for all of the reasons given), but I'll add another: figuring out whether something is insulting is very difficult. What you think is friendly, informal language might be my idea of a deliberate insult. Honest mistakes might be taken as insults: you might refer to a female editor as "he" rather than "she" in a discussion, or offer a virtual beer to people whose religion forbids alcohol. People sometimes act insulted when they discover that the standard rules apply to them, e.g., that even famous professors have to produce sources to back up their statements.
By the way, I don't think that the German Wikipedia has any legitimate claim to fame for insulting editors. The English Wikipedia spent too much of last month talking about why some "special" editors get to use profanity freely, while newbies are blocked for much smaller transgressions. WhatamIdoing 16:55, 21 November 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 14:56, 6 December 2011 (UTC)

"Terms of use – You adhere to the Terms of use and policies for each project."

I don't get the reference to terms of use here in what is supposed to be a summary of the terms of use; I suppose the idea is to have project-specific Terms? In which case, is this mostly a reference to policies?

[Disclaimer: I query this only on the back of giving the terms a quick glance. But then, that's the whole point of the human readable summary...!] 14:52, 7 December 2011 (UTC)

I think it means "you adhere to (the Terms of Use) and to (the policies for each project)", rather than "you adhere to (the Terms of use and policies) for each project". The addition of the extra preposition to (as I did in my first example) might make it clearer. WhatamIdoing 00:34, 8 December 2011 (UTC)
Thanks. I will make the change in my proposal in the above discussion on the terms of use summary. Geoffbrigham 12:31, 11 December 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 12:02, 13 December 2011 (UTC)

Section 4

"Certain activities, whether legal or illegal, may be harmful to other users and violate our rules, and they may also subject you to liability."

Is it just me, or does that sound completely contradictory? How can something that is not illegal hold you legally liable? I'm very confident in the draft to hold people who post child pornography, post viruses, malware, worms, etc. (all illegal activities) to legal liability. However, how can you possibly enforce vandalism and posting websites considered spam to the same extent as an illegal activity? Every couple of minutes on the English Wikipedia, we would have to report someone for terms of use violation. It's one thing to deactivate someones account (or block in the case of Wikipedia websites), it's another to say we are going to actively pursue you for legal liability if you vandalize Wikipedia. — Moe ε 01:00, 11 December 2011 (UTC)

I'm not sure that means that WE will pursue them for legal liability. I read it as "be careful, because your government or an injured party might seek relief". But I'm sure Geoff will fill us both in. Philippe (WMF) 01:49, 11 December 2011 (UTC)
Moe, good point. Philippe is right, but I could have been clearer in the drafting as well. How about if we say the following: "Certain activites, whether legal or illegal, may be harmful to other users and violate our rules, and some activities may also subject you to liability." This implies less that a "legal" activity will subject you to liability. Does this work? Geoffbrigham 18:12, 11 December 2011 (UTC)
That sounds like a good change to me, but the discussion made me think of the recent efforts to get a Good Samaritan law in China. Apparently doing something perfectly legal (helping an accident victim reach the hospital) did subject an innocent bystander to legal liability. WhatamIdoing 22:48, 12 December 2011 (UTC)
That seems to be a better wording, thanks Geoff. — Moe ε 02:48, 14 December 2011 (UTC)
Thanks for the suggestion. I have made the change. Geoffbrigham 00:36, 16 December 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 15:01, 16 December 2011 (UTC)

Minor wording change in the summary

"you generally must license your edits and contributions to our sites or Projects under a free and open license (unless your contribution is in the public domain)."

I'd like to see this changed to "you generally must license your edits and contributions to our sites or Projects under a free and open license, or you may release your contribution into the public domain." It wouldn't change the meaning, but it would be more natural English. Nyttend 18:16, 6 December 2011 (UTC)

I'm not sure it doesn't change the meaning, for several reasons.
First, content may be in the public domain, for example if it lacks the requisite creativity for copyright protection to attach. If I add a "complete works cited" list to an author article, it is in the public domain. It is a list without creativity.
But that is not the same as releasing the contribution into public domain. I think Wikipedia:Wikipedia:Granting work into the public domain (page is out of date!) is also worth considering here, particularly in the email sent to User:Dcoetzee from the US copyright office indicating that "Please be advised that one may not grant their work into the public domain. However, a copyright owner may release all of their rights to their work by stating the work may be freely reproduced, distributed, etc." I believe this is why Creative Commons devised CC-0.
Beyond that, I'm not sure we would encourage people to release their content into public domain even if we (and they) could. :) The current release when we click save says, with respect to text, "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"; it doesn't offer the option of "public domain." I was certainly not here for the licensing discussions at the dawn of time, as it were, but as I understand one of the reasons for the license chosen was to help ensure that content remained free. If our works were released under CC-0 or were in public domain, while the originals would always remain freely reusable, derivatives could be sewed up tight. We have no right to require copyleft license for derivatives. The license (now licenses) we went for mandate that.
For those reasons, I think that the change could actually be substantial.
(Of course, I am also User:Mdennis (WMF), but I want to make clear that I'm speaking in my volunteer capacity here, not in any way on behalf of the Foundation. This is purely my opinion.) --Moonriddengirl 20:13, 6 December 2011 (UTC)
I agree with Moonriddengirl. I prefer the original wording. If you want to dedicate your edits to the public domain (i.e. license them under CC-0) then there is a template you can add to your user page which does this. Filceolaire 00:09, 7 December 2011 (UTC)
I frankly can go either way. I do note that we address the public domain issue in Section 7(g), which states:
Public domain content: Content that is in the public domain is welcome! It is important however that you confirm its public domain status in the United States of America and any other countries as required on the local Project. When you contribute content that is in the public domain, you warrant that the material is actually in the public domain, and you agree to label it appropriately.

When we say "you irrevocably agree to release your contribution under CC-BY-SA 3.0 License," we mean "original" contribution. It is not intended to cover works in the public domain.
Unless I hear strong opposition, I will keep the terms as they are, but I think Nyttend raises a fair point. Geoffbrigham 00:01, 20 December 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Maggie Dennis (WMF) 20:23, 26 December 2011 (UTC)


"No harm" is missing the word "to". Beyond My Ken 03:08, 7 December 2011 (UTC)

Also, both "Terms" and "Use" should be capitalized in the title and in the "Terms of use" line, i.e. "Terms of use – You adhere to the Terms of Use and policies for each project." Beyond My Ken 03:10, 7 December 2011 (UTC)
Hi, Ken. :) The words "No harm" are only used that I can see in the summary.
No Harm – You do not harm our technology infrastructure
I'm not sure why they would take a to? We are a bit inconsistent with Terms of Use and the title case. I've converted the summary. I'd be scared myself to try to move this document, though, as there is some tricky translation markup going on that I don't even begin to understand. If Geoff things we should move it, I'll ask User:Siebrand for input. :) --Mdennis (WMF) 11:18, 7 December 2011 (UTC)
Given the heading it is very easy to misread You do not harm our technology infrastructure as You do no harm [to] our technology infrastructure. I'd view the constructions as exact equivalents and don't have any opinion on a rewrite. Eluchil404 20:05, 9 December 2011 (UTC)
But clearly both constructions are inherently ambiguous, and could be interpreted either as a plain statement of fact as in "Nothing you do can harm our technology", or as an exhortation: "You must not harm our technology". Malleus Fatuorum 16:20, 11 December 2011 (UTC)
I think people prefer "Terms of use" as opposed to "Terms of Use." I suggest we consistently use the phrase "Terms of use" since some have expressed a preference in not capitalizing "use."
In light of the above discussion, I have changed the phrase to read: "You must not harm our technology infrastructure ..." Thanks for the input from everyone. Geoffbrigham 00:09, 20 December 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Maggie Dennis (WMF) 20:18, 26 December 2011 (UTC)

Maybe a silly comment but...

I feel "United States" should be "United States of America". I'm using that on Terms of use/es because «United States» in Spanish means "Estados Unidos". México's official name is, for example, "Estados Unidos Mexicanos". I suggest this change to avoid confusion. Thanks. —Marco Aurelio (Nihil Prius Fide) 21:14, 9 December 2011 (UTC)

Seconded. ;-) It's better to use the official name in such a document. Nemo 20:38, 10 December 2011 (UTC)
Makes sense to me. I will make the change. Thanks! Geoffbrigham 12:23, 11 December 2011 (UTC)
This is a fairly excellent example of the wiki process failing. Why couldn't such a change be made directly? How much money (in time) has been spent paying Geoff to make these changes? And will his services be available on the content projects? --MZMcBride 16:08, 11 December 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 13:34, 20 December 2011 (UTC)

Definitions, examples, and critiques

Thanks to those who addressed my concerns about community review above. We still need specific definitions of "especially problematic users" and "significant Project disturbance or dangerous behavior" with examples, if those terms are not to be applied subjectively. We also need need to exempt critiques of Foundation or community actions, staff, publications, and practices from the definition of "significant Project disturbance or dangerous behavior." Dualus 15:02, 14 October 2011 (UTC)

Do we need these definitions and examples to be permanently carved in stone (that is, in the TOS itself), or do you just want to know what the answers are for your own purposes? WhatamIdoing 15:12, 14 October 2011 (UTC)
How do you think these terms are likely to be applied over time if they are not defined in advance? I think the Terms should include both definitions and examples for clarity. Are there any reasons that they should not? Dualus 15:43, 14 October 2011 (UTC)
Examples, in particular, tend to produce needless disputes from sea-lawyers. For example, if the rule is "Do not kill people" and you give an example of "Do not shove people in front of moving trains so that they die", someone who is in trouble for killing someone will invariably say that he didn't know that tossing an unconscious person into a river was covered by the rule, because it doesn't involve either shoving people or moving trains.
Undefined words in agreements are interpreted according to their dictionary definitions and common sense. There are hundreds of undefined words in this agreement. I see no more need to define "disturbance" than I see to define "servers" or "traffic". WhatamIdoing 20:21, 15 October 2011 (UTC)
Ah, but for a rule of "Do not kill people", what about - war? self-defense? death-penalty? abortion? risky medical operations? - there's obvious difficulties, which create a whole legal code distinguishing murder from justifiable homicide from accident. Regretfully, the practice for Wikimedia is more along the lines of being interpreted according to the politics of power. I would strongly agree that particularly broad and vague terms like "especially problematic" and "significant Project disturbance" need to be restricted. I can't find the link now, but if I recall correctly, Larry Sanger was blocked on Wikipedia after making his FBI report, with a block reason I think of "disruptive". In my view, that was an example of such spectacularly bad judgment on multiple levels that the blocking administrator should have been immediately desysopped. But since it was a popular action against an unpopular person, nothing was done. To put it simply the difference between "disturbance" versus "servers" and "traffic" is that the latter are technical while the former is social. -- Seth Finkelstein 21:36, 15 October 2011 (UTC)
Here are some links:
--Michaeldsuarez 00:34, 16 October 2011 (UTC)
Thanks for those links. I see I was not far off, the reason given was "Disruptive editing". With the new terms-of-service taking this sort of issue to an even higher level (by making it into Foundation and legal material), I submit it's extremely important to guard against possible abuse. -- Seth Finkelstein 05:06, 16 October 2011 (UTC)
Maybe a requirement for the admins to Assume Good Faith is the solution here. I think that is the main fault on the part of RodHullandEmu - he did not give LS the benefit of the doubt.--Filceolaire 10:48, 16 October 2011 (UTC)
My attention was called here...anyway, I'll bite: suppose RodHullandEmu had "given me the benefit of the doubt." What does that mean? Does that mean that he would assume that I was, say, not criticizing Wikipedia? After all, of course, I was criticizing Wikipedia. That is within the rules, I believe. "Assume good faith" is nonsense, I say. I was the originator of many of Wikipedia's rules--but not that one. --Larry Sanger 12:54, 16 October 2011 (UTC)
Filceolaire, unfortunately, there's a logical problem in that the issue is exactly the casting of critical actions as punishment-worthy offenses - i.e. you're asking them to assume something they've already rejected basically by definition. This is one of the dark sides of Wikipedia culture, where in one block discussion above, the admin literally says "You're either with us or against us". While you can say that admins should not have this attitude, it's clear that some do. So again, I think it important that the phrasing of the terms of service do as much as possible to avoid feeding into that sort of power abuse. -- Seth Finkelstein 20:46, 16 October 2011 (UTC)
Seth, if one wishes to permit killing people, then one should not have a rule that says nothing more than "Do not kill people". But if the rule is actually "do not kill people, no matter what", as it is in many pacifist traditions, then specific examples are not useful, because no illustration is necessary for correct understanding, and no example would limit the rule in the way that you wish to see the WMF voluntarily limit itself.
As for LS's block, that was authorized by the English Wikipedia's official guidelines, which several users have demanded be officially supported by this TOS. No possible change to the TOS would have made en:WP:DE not be an excuse for an admin to block anyone the admin wants, whenever said admin deems it appropriate. WhatamIdoing 02:38, 17 October 2011 (UTC)
Hmm? When you say "no example would limit the rule in the way that you wish to see ...", I'm merely agreeing with Dualus that "We also need need to exempt critiques of Foundation or community actions, staff, publications, and practices from the definition of "significant Project disturbance or dangerous behavior."" . And giving a notorious example. Now, "As for LS's block, that was authorized by the English Wikipedia's official guidelines" - was it? Now, at least one admin thought so. I contend it was an evident abuse. Who is correct? Perhaps that's exactly why it would help to be clear who is correct, and not rely on "common sense", which seems to give no undisputed answer here. Of course no admin can be stopped from calling something "disruptive", in a trivial sense. But it certainly can be made more evident if that admin is engaging in an abuse of power (tedious clarification: This doesn't say all cases can be solved, which would be an absurd claim. The point is that policies can be better verses worse in terms of limiting arbitrary and capricious interpretations) -- Seth Finkelstein 06:51, 17 October 2011 (UTC)
Seth, the rules at—for better or worse—are that any admin may block any user whom the individual admin believes is disruptive. Are we agreed thus far?
Some admin decided LS was "disruptive" and blocked his account. That action is exactly what's authorized in the official guidelines and policies. Whether that admin's judgment was appallingly bad is actually irrelevant: the rules in place at explicitly permit this action on that basis. The admin broke no rules in making that block.
Furthermore, you're looking at the wrong actor. Saying "The WMF (staff) will not do this" (what the TOS would say) has zero restrictive effect on the non-WMF admin who actually did this, and the hundreds of non-WMF admins who are still explicitly authorized by the community to use their judgment to block any users that they personally believe are disruptive. Tying the WMF's hands isn't going to solve the problem you see.
And if after all these talks about how the WMF needs to officially bow and scrape before the almighty community in the TOS, you think we have even a snowball's chance of getting the TOS to gut the long-standing policies and guidelines on blocking disruptive users, then I don't believe we have a rational basis for discussion any longer. Free speech is a lovely thing, but the community is never going to accept the WMF shoving a "you may not block users whose disruption can't be classified as 'free speech', especially 'free speech that hates on you'" rule down their throats. WhatamIdoing 15:54, 17 October 2011 (UTC)

The language at issue is this: The community has primary responsibility to address violations of Project policy and other similar issues. At the Wikimedia Foundation, we rarely intervene in community decisions about policy and its enforcement. In an unusual case, the need may arise or the community may ask us to address an especially problematic user because of significant Project disturbance or dangerous behavior. The purpose of this language is to underscore that the community has the primary responsibilty in enforcement, not WMF. It is intended to be descriptive in nature, and often such language in an agreement is not subject to further definitions. Even if it were, I think inserting such definitions would render the document too complicated (since if we do it here, we would arguably need to do it in other places), and, to be honest, I'm not quite sure how we could define these terms, given how the circumstances vary in each case. On a positive note, this language does appear in the proposed TOS (unlike the present TOS), and it therefore would have weight in community/WMF arguments/discussions if the community believed that WMF overstepped its bounds (which is not the case with the present TOS). In short, I propose not including definitions; however, if people feel they have better descriptive language, I am open to discussion. Cheers. Geoffbrigham 22:16, 19 October 2011 (UTC)

Yes, I understand your intent there. However, this connects to the upcoming global ban policy. I am concerned there's an ongoing factional effort by certain people to put in place broad, project-wide, blocking powers for themselves. They may have the best of intentions. However, the history of some past incidents shows that while these powers may be only invoked in "an unusual case" (in a statistical sense), there is substantial evidence to be very wary of the political implications of those cases. Now, philosophically, this is the enumerated-powers vs. Bill-of-Rights argument. While I've become very cynical, I'm still enough of a formalist to believe that there's some value in protective statements. I don't think a sentence of so to guard against abuse would be undue complexity. Something along the lines of "We will not construe extensive criticism or policy disputes as matters for Foundation intervention". This is theoretically what you would want, keeping the Foundation itself from being used in political arguments. -- Seth Finkelstein 01:26, 20 October 2011 (UTC)
The problem is distinguishing between Criticism (allowed) and Disruption (not allowed).--Filceolaire 06:29, 24 October 2011 (UTC)

Two points:
  • Nobody is "put[ting] in place broad, project-wide, blocking powers for themselves"; the WMF already has these powers. The only difference is that the fact that these powers exist will be mentioned in the TOS rather than elsewhere. This creates fair warning to the user, not a new power for the WMF.
  • The WMF might legitimately construe "extensive criticism or policy disputes as matters for Foundation intervention" if that criticism or dispute results in significant disruption. The Berkeley city council might decide that destroying public property is "free speech about our parking meter ordinance" rather than "criminal behavior that people go to jail over", but I don't think that we need to follow their example. I see this as having no positive effect in ordinary disputes and as being a gift to people who want to abuse the WMF projects advocate for their political causes. The WMF might very legitimately intervene in a "policy dispute" about whether pedophiles and pedophilia activists should be tolerated on WMF projects, as it has in the past (by adopting a policy that blocks all identified pedophiles). In fact, depending on your definition, many Board resolutions, such as the change to the licenses a couple of years ago, constitute "intervening" in a "policy dispute". The Board has a positive legal duty to oversee policy matters, which includes intervening in policies as often as necessary. WhatamIdoing 17:37, 20 October 2011 (UTC)
Actually, I disagree with you empirically about who now has "broad, project-wide, blocking powers for themselves". One of the weak constraints that currently keeps certain people in check, is that in fact it's not at all clear if they're operating in a sanctioned way. And they're getting substantial push-back on the matter. I think terms-of-service level push-back is important in this process. Regarding construal, again, we're going around making the perfect the enemy of the good. It's like objecting to freedom of religion on the basis of, what if someone argues that taking illegal drugs is part of their religion? Or that not getting medical care for sick children is part of their religion? Then one would could conclude that since in some cases, the government has a positive duty to act against against freedom of religion, therefore a provision for freedom of religion is "a gift to people who want to abuse". I don't want to be hyperbolic, but the "abuse" argument is perilous close to claiming civil-liberties are only for bad characters. -- Seth Finkelstein 12:04, 21 October 2011 (UTC)
You believe that the WMF does not currently have the actual power to block anyone it wants? On what basis?
Do you believe that the staff members' block buttons are broken, so that only volunteers are capable of blocking someone? Do you believe that the people who control the entire website are incapable of giving themselves whatever privs are necessary to block someone, if that's what they wanted to do? Do you think the devs are incapable of writing whatever code is necessary to make it possible for them to block people, if that's what they wanted to do? Do you think that if the WMF's board passed a resolution declaring that someone was banned, that the staff would wring their hands and say, "Oh, if only there were a way for the staff to block that account"?
I'm not talking about whether the WMF "should" do this. I'm talking about whether they have the ability (=power) to do this. They've got physical access to the servers: they can do anything they want to the WMF websites. WhatamIdoing 15:35, 21 October 2011 (UTC)
This is a bit like arguing "You believe that the police do not have the actual power to shoot anyone "dangerous"? Do their guns not work, so only vigilantes can shoot people?". We have been going around and around formalism vs pragmatism. Every time I say I believe that moderate formalism empirically has some value (some - not dispositive, not conclusive, not philosophically unassailable - but some value), you respond by arguing extreme pragmatism. At this point, it's been asked and answered. If you look at the actual global ban discussion, the social process is much more complex than merely who has the guns (servers). -- Seth Finkelstein 03:05, 22 October 2011 (UTC)
There's a significant distinction: The WMF websites are the WMF's property, and it is their legal and moral right to do whatever they want with them. The law enforcement officer's weapons are not the officer's property, and "we the people" gave those weapons to our officer solely on the strict condition that he (or she) do nothing with our weapons except what we have authorized (through the law). The two situations are not at all comparable. WhatamIdoing 16:37, 22 October 2011 (UTC)
All analogies have points of similarity and points of dissimilarity. In this case, the detail analogy might be that it's sometimes not clear when a specific person is acting with and within the authority of the WMF, and attempts to perhaps arrogate that authority. You're also retreating from pragmatism into formalism in talk of "have authorized" - that's an appeal to procedure, and somewhat infamous in terms of reviews of use of deadly force (i.e. the charge that very little is needed pragmatically). If it required a formal WMF Board resolution to global ban someone, rather than one person possibly lashing out in irritation, I wouldn't be nearly as concerned with the potential for abuse -- Seth Finkelstein 01:24, 23 October 2011 (UTC)
If the staff member is not acting within the authority of the WMF, then the decision will be overturned. If a WMF staff member bans you, and that staff member's supervisor (or anyone else in that chain of command, going all the way up to the Board) decides it was a mistake, then the decision will be overturned and you would be un-banned. Unlike killing someone, banning is a reversible process. If the staff member bans you again, or if the WMF decided the staff member used bad judgment in the first place, then the WMF can (and would) fire the staff member.
So where's the problem? Wanting a resolution from the full board for every single decision is both wasteful and leaves the person with no possibility of appeal. Would you have every single legal case decided by the Supreme Court? Isn't one magistrate usually sufficient for run-of-the-mill cases? WhatamIdoing 04:24, 24 October 2011 (UTC)
So the TOS needs to put a duty on the WMF to have an appeals procedure? The TOS doesn't need to define this. The TOS should also state that the Board is the court of final appeal - we don't want people trying to get the law involved in resolving disputes. The appeals process could be something like:
  • staff action
  • staff action is reviewed by board member appointed for that sort of thing (everyone has this right?)
  • final appeal to a Board sub-committee who can (like the U.S.A. supreme court) decide for themselves if they will or will not consider any appeal.
There is probably scope for community actions to be appealed to the board too - is the project / branch acting in accordance with their contract with the WMF? This procedure should probably be spelled out in those contracts, not here. Ultimate sanction for project - stop new contributions but allow a fork. Ultimate sanction for branch - withdraw permission to use the trademarks.Filceolaire 06:29, 24 October 2011 (UTC)
I agree that it's unnecessary for the TOS to outline any appeal process.
I think the fundamental problem is that Seth believes he has some sort of human right to use the WMF's private website. In actual practice, Seth's rights to the WMF's website are exactly the same as Seth's rights to my equally private living room: he can use it only when the owner says so, and only in the ways the owner says so, and only so long as the owner continues to say so. The owner has an absolute legal and moral right to revoke that permission, at any time, for any reason or no reason at all. WhatamIdoing 15:42, 24 October 2011 (UTC)
I think the fundamental problem is that "WhatamIdoing" is knocking down silly strawmen. I said nothing of the sort, and Libertarian-type knee-jerking like the above is showing there's no more point in this exchange :-(. -- Seth Finkelstein 18:54, 24 October 2011 (UTC)
WhatamIdoing: The Wikimedia Foundation is a registered charity working to achieve certain charitable ends. It has invited us to work with them to help achieve those ends. To encourage us to help with this WMF makes certain undertaking to us as to how we will be treated and as to how our contributions will be used. These undertakings are described in the Terms of Use. There are lots of things the system admins could do which the WMF promise (in the TOU) not to do. If they do those things then that is a breach of the TOU and then we have a situation which is not covered by the TOU. As it's not covered by the TOU therefore there is not much point discussing it here. This page only deals with things that are covered by the TOU. Filceolaire 21:49, 24 October 2011 (UTC)
Like the "right to fork," I think the appeal procedure is something for the community to figure out and present to the Board as a proposed resolution. If the Board agrees, this TOS would recognize its authority. Sec. 11. I agree with WhatamIdoing on the power of the community to keep the Foundation in check, and I frankly don't see a need to modify the proposed language. Indeed, in some important ways, Section 10 enables the community more than in the past: with the global ban policy, the community will be able to amend and define the reasons why the community can and cannot ban someone globally, which is a good, community-oriented process. Geoffbrigham 18:23, 24 October 2011 (UTC)
The problem in the chain of reasoning above is that the people most affected by the new policy cannot plead their case, so it ends up concentrating the flaws of the social process of groupthink. Remember, civil-libertarian ideas are anti-majoritarian. -- Seth Finkelstein 18:54, 24 October 2011 (UTC)
Geoff: I disagree. A discussion on rewriting the TOU (i.e. this page) is exactly the right context for discussing these issues with the Community and the Board. A discussion is better than a proposal from one side with the other side left to approve or disapprove.
Seth: I'm not sure I understand what you are getting at. To put it in concrete terms - what is your proposal for wording to be added to / changed in the TOU to address this?Filceolaire 21:49, 24 October 2011 (UTC)
Filceolaire, above I suggested "We will not construe extensive criticism or policy disputes as matters for Foundation intervention". Please note also I was agreeing with Dualus at the very top of the subsection about "... not to be applied subjectively. We also need need to exempt critiques of Foundation or community actions, staff, publications, and practices from the definition of "significant Project disturbance or dangerous behavior.". This extremely mild and moderate view (IMHO) seems to have dragged me into a requirement to develop a complete moral theory of governance and to prove it against talk-radio style objections. It just doesn't strike me as so difficult (or at least, it shouldn't be). I hope I don't have to go around again that I don't believe this would solve everything, and I don't propose to nationalize Wikimedia and have it run as a subdepartment of the People's Ministry of Culture. What I'm getting at, is that there's *factions* of the "community" that apply broad and vague views of what constitutes "disturbance", and it would be a good idea to make sure from the start that they don't read the new terms-of-use as a tool for their efforts (even though, sigh, I presume the drafter does not intend to enable them, but I think it would be helpful to make that as clear as possible). -- Seth Finkelstein 12:09, 25 October 2011 (UTC)

Seth, I'm still not getting a useful response to the problem with your proposal. What if the WMF is faced with a user who is simultaneously, through a single action:

  1. "extensively criticizing" the WMF and
  2. disrupting the project to the extent that no one else is able to use it?

Should the WMF volunteer to "not construe" this extensive criticism as something it needs to deal with? Should the WMF sit idly by while everyone else is locked out of a project because the act of locking everyone was, itself, criticism of the WMF?

Has it ever occurred to you that the "extensive criticism" you (nobly) want to protect could be performed in an project-destroying disruptive manner? WhatamIdoing 20:24, 25 October 2011 (UTC)

WhatamIdoing: if the user is doing both of these things then the user can be banned for the disruption. The fact that they are also "extensively criticizing" does not give them a free pass to disrupt the project.
Seth: I agree with you that users should not be banned for criticising the project where this is done to try and make the project better. I also see someone could confuse "trying to change how the project operates" with "disrupting how the project operates". The Terms of Use need to establish the principles but I'm not sure how to phrase this.Filceolaire 22:45, 25 October 2011 (UTC)
WhatamIdoing, that issue has been asked and answered already, above, where I noted that analogously, freedom of religion can involve conflicts over illegal acts. Again, we have reached a point where there's no point. Yes indeed, I want to protect e.g. Larry Sanger's right (sigh - tedious defense against strawman, this word is used in an internal, not government, sense) to make an issue over sexual material (without endorsing his views _per se_). And, repeating myself, being deemed blockable "disruptive editing" and outright told "You're either with us or against us" makes it easy to see the potential for abuse at the terms-of-use level.
Filceolaire, sadly, if the idea itself has been rejected, better phrasing is academic. -- Seth Finkelstein 09:38, 26 October 2011 (UTC)
And yet your proposed text actually says, in effect, that all criticism of the WMF, regardless of time, place, or manner, is never to be punished, even if that criticism is communicated in severely disruptive manners. That's what the words you wrote mean: "we will not construe criticism", with no qualifiers, means the WMF will not do this, full stop, no exceptions. If you mean "we will not normally construe criticism unless it significantly disrupts the projects", then you have to actually say all of that. WhatamIdoing 18:46, 27 October 2011 (UTC)
Sorry, Seth, I'm not letting this die so quietly - neither sadly nor academically. You struck my free expression nerve. Just for discussion purposes, one idea - only an idea - is to insert the following sentence in Section 10: "We would never construe good faith criticism or policy disputes by themselves to constitute grounds for a global ban." I know it is qualified ("good faith") and limited ("by themselves" & "global ban"). But it does indicate that simple free speech against Wikipedia is not grounds for a global ban. Now the counter-argument is that we are restricting the community in how they would like to justify a global ban. So I would need to be convinced that we could get consensus with this language. Geoffbrigham 00:11, 27 October 2011 (UTC)
I don't think that you want the word never to appear in that sentence. Not is probably sufficient. WhatamIdoing 18:46, 27 October 2011 (UTC)
Thanks for having a free expression nerve :-). Regarding "restricting the community in how they would like to justify a global ban", I think there's a definition issue. As in, if some faction wants a new broad and vague offense in the terms-of-use that they can wield against critics, and you try to make it clear that isn't the intended meaning, sure, it's a restriction in some sense of the world. But that's true of everything which doesn't give those people arbitrary power. Note I'm not advocating the new terms-of-use impose new guarantees on existing projects. Rather, I'm attempting to guard against the new terms-of-use becoming another tool to go after criticism (which, to re-iterate a tedious point, I know cannot be solved completely, but I merely think that some helpful measure can be taken). In your phrasing, the words "good faith" probably don't have the effect you're thinking (I suspect you're drawing on legal phrasing there). However, it is an unfortunate article of faith (pun unintended) by too many that no criticism of Wiki[p|m]edia done by someone who isn't part of the tribe is ever in good faith. The attributions are typically of malice of some sort, which allows the faithful to dismiss the point immediately, and rationalizes a personally attack in retaliation. The blocking of Larry Sanger is full of this - "Vandalism is broadly construed, and in my view extends outside merely Article space. However, that is somewhat irrelevant given your continued anti-campaign against Wikipedia.". Again, without endorsing Sanger's accusations in themselves, I think it should be clear to anyone who examines his voluminous writings on the matter that he does sincerely believe what he says. So I'd say an inferred state of mind aspect is not a good idea. -- Seth Finkelstein 12:58, 28 October 2011 (UTC)
Seth, personally I think the terms of use is the wrong instrument to use if you want to protect critics. The point of the terms is not to try and shape the very large, diverse Wikimedia community into something that protects the kind of critics you care about. There's nothing the WMF can or should put into its legal documents that forces the community to put up with critical voices if it doesn't want to. That's not our job, and ultimately, we are incapable of making any Wikimedia community put up with people it doesn't think are productive contributors to the projects. You're barking up the wrong tree here. Steven Walling (WMF) • talk 17:58, 28 October 2011 (UTC)
Ahem - what I did just write? Note I'm not advocating the new terms-of-use impose new guarantees on existing projects. For heaven's sake, I could understand missing or forgetting this if it were many pages above. BUT IT'S IN THE COMMENT YOU'RE REPLYING TO! You're knee-jerking an accusation which I already disavowed! Another stock strawman that seems utterly disconnected to what I wrote. Do I have to create a FAQ for this, and like the old joke, just call out the numbers? Instead of going around it all again, let me point out, this is why I think as much guarding against abuse as possible is a good thing. Because given the incredible distortions seen even in this minor discussion, there can be no confidence that phrases like "especially problematic user" isn't going to be attempted to be interpreted by some as "annoyed someone in a position of power, e.g. at WMF". -- Seth Finkelstein 23:41, 28 October 2011 (UTC)
Well, Steven's kind of got a point: Imagine a perfectly civil, totally non-disruptive person who says something critical. (Oh, maybe the Arabic Wikipedia bans images of the prophet, and someone says he disagrees with the ban, or some kid at posts a brief note complaining about the annual fundraising campaign.) Imagine a (dysfunctional, IMO) community that has decided they don't want to hear even the tiniest bit of criticism on whatever point the speaker is making. If we give (non-disruptive) "criticism" or "policy disputes" a special exemption, then it's possible that we'd be unintentionally undermining the communities' self-governance (i.e., in meaning to restrict only the WMF, we might undermine a community's choice to refuse to hear any criticism).
I personally don't think this is a serious risk, especially in our mature projects, and I read the text strictly as applying only to WMF-controlled bans rather than community bans, but others might not hold the same views, and it is no stretch to believe that the banned person would feel like the community ought to hold itself to the same standards as the "office". WhatamIdoing 16:56, 29 October 2011 (UTC)
If such a situation need to be addressed, I think phrasing along the lines of "WMF bans will not ..." covers it, as that is distinct from local bans. Note I don't expect perfect formalism, and in return, don't regard lack of perfect formalism as a killer argument (number x, some phrasing helps, not solves everything). Bluntly, such a hypothetical strikes me as of little concern given the existing actual reverse case of WMF global ban proposed policy being driven by local projects refusing to ban users when a WMF person believes that they should. That is, the concern for imposition and self-governance rings a little hollow when there's such effort going into "shoving a ... rule down their throats" that all projects will ban the users that a WMF person wants banned. -- Seth Finkelstein 20:27, 29 October 2011 (UTC)
  1. Who decides whether someone is an "especially problematic user"? Is the Foundation required to have the same opinion as the Community? Is the Community required to have the same opinion as the Foundation?
  2. Can "significant Project disturbance or dangerous behavior" include critiques, as Steven Walling suggests above? I hope not.
  3. Should we exempt critiques of Foundation or community actions, staff, publications, and practices from the definition of "significant Project disturbance or dangerous behavior"? I am certain that we should. James Salsman 07:35, 2 November 2011 (UTC)
Great discussion with some strong points on both side. I hear the position that WMF should have some limit on its ability to ban, but I also see the reasoning that we cannot constrain the discretion of the community. Although this is a close call for me, I would be willing to insert (and have done so) the following language in Section 10:
"Without limiting the authority of the community, the Wikimedia Foundation itself will not ban a user or block an account solely because of good faith criticism."
This is definitely not perfect: it is a compromise. I don't mean to terminate the discussion, and folks can feel free to say so if the above does not work. But, honestly, I don't see WMF going much further. The alternative - and maybe my preferred approach - is to say nothing at all. That said, I do want to respond to concerns that WMF will not use its powers to suppress legitimate criticism, which is of course not our practice nor our mission. Geoffbrigham 14:38, 10 November 2011 (UTC)
I still believe that the TOU is the wrong place to be dealing with this level of detail. Saying nothing at all here and dealing with it all in the staff policies and procedures and/or the Global ban policy would be preferable. Dealing with it elsewhere gives us scope to define terms and explain issues in much greater detail. WhatamIdoing 15:58, 10 November 2011 (UTC)
Thank you. I'll take it, as a compromise. As I've said, there's only so far one can go with formalism. Just as a note of commentary "which is of course not our practice nor our mission" - mission, no, practice, again, there's been some disturbing incidents in the past. I'm sure WMF would disavow any official approval. But once more without going into specifics, the arbcom-l leaks had some problematic material. -- Seth Finkelstein 01:02, 11 November 2011 (UTC)
It always worries me when WhatamIdoing is disagreeing with me, especially given WhatamIdoing's deep experience on the Projects. In those cases, I need to ask myself if I'm not seeing something that I should have seen from a community viewpoint. I asked two other community members at WMF, and there does seem to be a concern about this phraseology. Here is an example: Say a board resolution passes and User X disapproves. Suppose he begins replacing images on Commons with a template expressing his disapproval, starts adding his disapproval into articles about the Wikimedia Foundation, begins mailing letters expressing his disapproval to members of the board, their friends, their families.... At what point does he cross the line from "solely expressing good faith criticism" to disruption/harassment? All of this may be done in good faith, depending on one's definition--in fact, it could be strictly a matter of conscience and firmly believed best for the movement from his viewpoint to systematically replace every article we have with his criticism. Would our language allow WMF to block him? Would it make it better to extend it a bit to add "solely because of good faith criticism that does not result in actions that would otherwise violate this Agreement or community policies"? Geoffbrigham 19:38, 14 November 2011 (UTC)
Let's put it this way - there's a strong element on this topic of "Where you stand depends on where you sit". Some people are concerned that bona-fide vandals are going to cry free-speech. And they will. Just like actual Mafia members claim to be victims of anti-Italian prejudice. But on the other side, there's plenty of Wiki[pm]edia examples of power-holders accusing someone who may be merely irritating them for one reason or another, of "disruption/harassment". It goes back to my point that I don't expect formalism to solve everything. However, I have a hard time thinking anyone is going to *seriously* be able to "systematically replace every article we have with his criticism" and maintain they can't be blocked for it. That would be like the joke about robbing a bank for money to fund a political cause and when imprisoned for it then claiming to be a political prisoner. What I'm trying to do is give the hypothetical WMF power-abuser as little legalistic grounds as possible (knowing full well one often can't eforce anything against them anyway). Something like "violate ... community policies" is to me *in context here* a loophole one can drive a truck through, because some sort of violation of e.g. "civility" can always be found. I think "solely" is already the loophole, but "solely" + "community policies" effectively communicates "This is meaningless because what you want to do is find some violation and that'll be enough of a pretext". I expect that's going to happen in practice anyway, but I see in the loophole a sort of seal of approval. -- Seth Finkelstein 12:47, 15 November 2011 (UTC)
OK, in light of WhatamIdoing's feedback and Seth's point that a qualified statement has little practical meaning, I'm going to leave out my own formulation and defer instead to the community to set the standards through the Global Ban Policy or otherwise. My apologies for waffling here, but I found the discussion quite helpful for thinking this through. Geoffbrigham 16:34, 5 December 2011 (UTC)


Section moved for clarity and to avoid forking the discussion

Geoff, didn't you agree that there would be an explicit exemption of good faith criticism from e.g. "engaging in harassment"? 22:22, 6 December 2011 (UTC)

Harassment is when it actually goes beyond simple policy notices to simply being obnoxious. A definition should be included.Jasper Deng 23:34, 6 December 2011 (UTC)
There is a real distinction between good faith criticism and harassment but it is hard to put down in a definition without opening us up to endless wikilawyering so I am against including a definition here. Without a definition we are left to depend on the discretion of whoever is administering the enforcement of the ban on harassment. I think this is the way to go so long as all such decisions are made in the open and available for anyone to review. --Filceolaire 00:06, 7 December 2011 (UTC)

I just realized that this discussion is not in the archives as I thought it was, but is still above on this page (#Definitions, examples, and critiques.) I think the proposed statement, "Without limiting the authority of the community, the Wikimedia Foundation itself will not ban a user or block an account solely because of good faith criticism" is a very good idea because it would not, for example, permit project admins to globally block or ban Larry Sanger for off-wiki criticism as happened in the past, and because of the motivation that clearer rules are easier to defend. I'm sorry I duplicated this section and I guess I should move it back up there. Filceolaire, is there any reason that statement would lead to wikilawyering? 02:15, 7 December 2011 (UTC)

First of all, this document would not prevent "project admins" from banning anyone they want, for any reason at all. It only affects what paid WMF employees would do. The whole point of the line about "Without limiting the authority of the community" is that the project admins would still be perfectly free to block people for off-wiki criticism. (Sanger was never the subject of a global block, only a local one.)
Second, the reason that we can reasonably expect it to lead to wikilawyering is that every single other "we won't ban you if..." exemption has resulted in wikilawyering. People do not like being blocked or banned. Even if their behavior is clearly reprehensible, many people will say just about anything to get unblocked or unbanned—especially if they don't believe that their behavior was truly bad (e.g., because they believe that editors ought to support their efforts to save the world by highjacking articles or re-writing content policies to promote a particular viewpoint). I don't want to add "But it was criticism, and you promised you'd never block for criticism" to their list of excuses. WhatamIdoing 00:52, 8 December 2011 (UTC)
Do you think people being blocked or banned for legitimate criticism has been a problem? There are several examples above. How would you address it? Do you think allowing people to say that a good faith critique is actionable harassment is good for the projects or the Foundation? 14:27, 8 December 2011 (UTC)
I don't see a single instance of any person ever being blocked or banned by the WMF employees for anything that could be described as criticism, legitimate or otherwise. The proposed phrase would apply to the WMF's actions (i.e., what it's paid, professional employees do, not what the volunteers do) and therefore not place even the smallest restriction on the volunteers (i.e., the people who made these mistakes in the past).
Let's try this as an example:
  • Volunteer Johnny issues a bad block.
  • You write a rule that says "Employee Emily may not issue that kind of block, but volunteers can do whatever they want."
  • Do you think that rule will change Volunteer Johnny's bad behavior? WhatamIdoing 17:05, 8 December 2011 (UTC)

As I said just above, replying to this argument: "One of the weak constraints that currently keeps certain people in check, is that in fact it's not at all clear if they're operating in a sanctioned way. And they're getting substantial push-back on the matter. I think terms-of-service level push-back is important in this process. Regarding construal, again, we're going around making the perfect the enemy of the good. It's like objecting to freedom of religion on the basis of, what if someone argues that taking illegal drugs is part of their religion? Or that not getting medical care for sick children is part of their religion? Then one would could conclude that since in some cases, the government has a positive duty to act against against freedom of religion, therefore a provision for freedom of religion is "a gift to people who want to abuse". I don't want to be hyperbolic, but the "abuse" argument is perilous close to claiming civil-liberties are only for bad characters." (let me point out again so we don't go into the loop that this is an analogy, a way of expressing a concept - it does not claim that the Wikimedia Foundation is in fact subject to the Bill of Rights, etc). In fact, looking at the preceding discussion, I've made all the points, and I'm doubtful that repeating them all again is going to help. There's a limit to how far formalism matters, and I think I've reached it for the time required to "discuss" it all again :-( -- Seth Finkelstein 06:21, 9 December 2011 (UTC)

A terms-of-service level push-back might be (slightly) helpful in restraining the occasional, overly enthusiastic blocks if it applied to the people who actually issued those blocks, but one that explicitly exempts 100% of the people who are issuing the bad blocks and explicitly applies only to the tiny number of employees who have never done such a thing, doesn't seem even remotely helpful to me. It's like trying to reduce traffic fatalities by writing a law that says, "Drunk driving is banned, except by people who have been drinking alcoholic beverages." Telling all the lifelong teetotalers not to drive drunk, while permitting drunken sots to keep doing it, will not reduce traffic fatalities. If you want these community-issued bad blocks to stop, you need a rule that applies to the communities, not to the employees. WhatamIdoing 17:33, 9 December 2011 (UTC)
WhatamIdoing, to assume good faith, you appear to be misunderstanding the point. The concern is that a certain new class of people, WMF staff, will take the terms of service as a justification to act in the same abusive and capricious manner that has previous been seen in ill-considered actions by admins on the project level. I now must tediously say again that I don't expect formalism to be the whole solution, but do think it can be a help. This is a perfectly reasonable argument, essentially when discussing a "Federal" law pointing out previous problems in "State" enforcement (again, sigh, these are analogies, not meant to be taken literally, but illustrative of the concept). Say what you want about civil-liberties vs police power (another analogy), the basic dispute should be clear. -- Seth Finkelstein 17:54, 9 December 2011 (UTC)
Well, you're right: the overworked WMF employees might suddenly turn into raving loons and go on blocking sprees just because they can. But (1) they can already do that, and they never have, and (2) we have no rational reason to expect that they're going to change their behavior.
I'm not sure that point (1) is apparent to you: They could do that today. They could have issued bad blocks at any point during the last ten years. Some of them could probably even have issued blocks without mere mortals (like me) knowing what they were up to. I fully believe that the devs could, if they really wanted to, re-write the MediaWiki code so that an irritating person was blocked in practice, but so that the block didn't appear in the logs and couldn't be reversed by anyone except the devs themselves. That's reality: what's protecting you from bad blocks by the staff is the professionalism and integrity of the employees, and the fear of being fired if they got caught doing something truly horrific. It's not because they're unable to block anyone they want, whenever they want, under the current system.
Right now, there is no ban on WMF employees blocking people. They even do it on occasion (e.g., for slamming the servers), although they haven't chosen to issue blocks for criticizing the WMF. We have a ten-year track record on that point. Having the new TOS say exactly what the old TOS says about issuing politically motivated blocks (which is nothing) should not change the employees' behavior. WhatamIdoing 18:02, 10 December 2011 (UTC)
I'd put it as "The WMF employees who have done hot-headed or ill-advised actions might engage in further such behavior if they feel they have an opportunity to contend that they are now enforcing a new policy". That's quite a rational prediction. Then you go around formalism vs pragmatism yet one more tiring time. Repeat - "Every time I say I believe that moderate formalism empirically has some value (some - not dispositive, not conclusive, not philosophically unassailable - but some value), you respond by arguing extreme pragmatism.". Again, this has been answered and answered and answered, to the point where your constantly ignoring that the argument has been addressed is tedious and worse. -- Seth Finkelstein 23:26, 10 December 2011 (UTC)
Once again, you refer to "The WMF employees who have done hot-headed or ill-advised actions", and I ask, once again, for proof that this serious insult is even remotely deserved by any WMF employee. Perhaps it's "extreme pragmatism" on my part, but your continued disrespectfulness towards the WMF staff, and your zero-evidence insistence that they've taken such actions in the past, is not persuasive to me. WhatamIdoing 22:33, 12 December 2011 (UTC)
I refer you to the arbcom-l leaks for several case studies. The general proposition should not be a matter of debate. I don't want to get into specifics, because it will be extremely inflammatory and contentious. Plus the best examples would possibly involve some vicious nastiness that might be worth enduring in the right context, but it sure isn't worth it for a formalistic sentence that seems a lost cause anyway. Respect has to be earned, not assumed from a haughty stance of superordination. And bluntly but concisely, I have earned the right for my views quite directly, that someone insulated behind a pseudonym does not have the moral gravitas to presume to upbraid me. -- Seth Finkelstein 00:59, 13 December 2011 (UTC)
  • I note that a lot of water has since passed under the bridge since I blocked LS for disruption when I was an Admin. At that time, I was aware that there was a certain animus between LS and Wikipedia that remains unresolved, as I see it, to this day. Maybe my perception was wrong, but my modus operandi as an admin was always to protect Wikipedia from unconstructive influences, and given that there had previously been a lengthy discussion about hosting "suspect" images, involving Jimbo on Commons, no less, I saw LS's actions in reporting to the FBI (and I do note that no legal action was forthcoming) as a naked attempt to cause unnecessary problems for WP, and therefore saw no reason why his privilege to edit WP should continue, considering that he had taken no steps whatsoever to resolve the problem within Wikipedia. That's the policy I adopted with regard to numerous other editors, whose very few early edits showed absolutely no wish to improve what was then "our" encyclopedia, and blocked them I did. With great respect, in the circumstances, I see little if any, distinction. What bothers me slightly more these days is that although I am no longer able to improve WP (and, God knows, it still needs it!), I am working away on Commons, I have not been given any opportunity to comment on my actions here, and only arrived here by accident. I am not a WMF whore, so it shouldn't be assumed that I will see anything and everything that is said about me on any page within WMF projects whatsoever and I resent the lack of courtesy in failing to inform me of this thread. I may be dead as far as WP is concerned, but not otherwise. Yet. Thanks. Rodhullandemu 03:15, 11 December 2011 (UTC)
Regrets for not notifying you on my part - I couldn't know in advance how you would take it (i.e., remember, if I guess wrong, I get flamed). Glad to see you commenting here, really. I completely accept the sincerity of your stated views as to why you blocked Larry Sanger. Which are exactly my point, and an empirical reply to some of WhatamIdoing's objections. Though of course you are not a WMF employee, it is no great leap to believe a WMF employee could have exactly the same thought processes about "protect Wikipedia from unconstructive influences" and "a naked attempt to cause unnecessary problems". Moreover, in terms of WhatamIdoing's talk of "fear of being fired", it noteworthy that you were not sanctioned in any way for blocking Larry Sanger, and personal attacks on critics usually result in social approval for the attacker. Thus I rate a potential WMF level version of that incident as a far more serious problem than a bona-fide malicious person making frivolous free-speech arguments. Now, disclaimer, in terms of limits of formalism, this might all be just a waste of time, I know that too, so no need to re-iterate those points - take it as given. -- Seth Finkelstein 09:24, 11 December 2011 (UTC)
Boy, you guys really make my job hard. ;- Good arguments on both sides. I'm splitting the baby and including this language: Without limiting the authority of the community, the Wikimedia Foundation itself will not ban a user or block an account solely because of good faith criticism that does not result in actions otherwise violating this Agreement or community policies. I know that Seth will not be happy because he thinks there are too many lawyer words. WhatamIdoing will not be happy because the whole provision is unnecessary given the history of WMF and its restraint. Yet somehow I feel that we should recognize the importance of independence in good faith criticism. But, as I think about that, I think about people who have or could cross the line by stalking or harassing employees, users, etc. I don't want to spend lots of time wikilawyering that behavior, thus the reference to compliance with the Agreement and community policies.
I don't pretend this debate is over and am always open to listening. But that is what I propose for now, and will include that language in the draft for final discussion. Geoffbrigham 01:18, 16 December 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Maggie Dennis (WMF) 20:14, 26 December 2011 (UTC)

Modification of ToU

Current terms of use explicitly state "These site terms are not to be modified". I don't understand why the terms should be completely revised even violating current Terms of Use. Best regards. – Kwj2772 (msg) 12:38, 10 December 2011 (UTC)

That phrase is unfortunately so short that it has confused several people. Its actual meaning is "Attention, all you editors over at each language's Wikipedia or other project: These terms were written by the foundations' lawyers, not the community, and unlike all the other pages on the project, you do not get to change it yourselves. The exact same terms of service are going to be used on 100% of the WMF's websites, even if you think that your particular project needs 'special' terms." WhatamIdoing 18:08, 10 December 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Mdennis (WMF) 13:34, 20 December 2011 (UTC)

Protection of TOS Draft

MZMcBride makes a good point that we should unfreeze the draft TOS page. I do believe that is normally part of our tradition and appreciate his argument. With a legal document like the Terms of use, however, I prefer that we keep the page protected and that we suggest edits in the discussion page for review and debate. I can then make edits based on the feedback. As noted, the TOS draft is a legal document, so, for me, it is important that we keep its integrity. The language needs to be crafted also from a legal perspective, which I believe I'm able to do. In addition, this procedure helps facilitate the translation process. I have tried to be responsive to all those in the discussion, which has resulted in numerous edits, both substantively and otherwise. Indeed, some are telling me that this is one of the most open discussions on a Terms of use that they can recall. In my opinion, this process has worked well for us over the last 3 1/2 months and I propose keeping it until the end of the comment period this month. Geoffbrigham 22:50, 10 December 2011 (UTC)

Most irregular indeed. It appears you are applying an ad-hoc process; can you provide documentation? --Kim Bruning 23:32, 10 December 2011 (UTC)
It's not a legal document. It's a draft of a page that may or may not one day become the terms of use for Wikimedia wikis. That seems like something that should most certainly be open to editing. I asked Maggie this, but you'd probably know the answer better: was there an open editing period? I thought it was going on now, but I may have missed it.
Speaking generally, the General Counsel has never and does not currently own the terms of use, as far as I understand it. You're displaying a fair amount of ownership over the page, but I wonder where you get the idea that this was/is ever appropriate.
"Again, if there are problematic changes legally, Geoff should and must step in. But if there are disagreements about philosophical issues or aesthetic issues or stylistic issues, Geoff, you, and I are all in the same position: boldly edit, revert as necessary, and discuss on the talk page throughout the process. That's the wiki way."
I might go a bit further to say that if you can't understand, appreciate, and respect the wiki way, it may be a good idea to consider another site/project/&c. This is Meta-Wiki, after all. You're in the heart of wikidom.
I think everyone here values your opinion and expertise, Geoff, but I don't think there's any reason to bar open editing here. As for the translation process, that should almost certainly wait until the Board approves a version to reduce redundant effort, but I'm not as concerned with that. --MZMcBride 04:53, 11 December 2011 (UTC)
Thanks MZMcBride for your comments, and I appreciate the remarks about the wiki way. In my defense, what I'm trying to find is a balance that allows a potential legal document - to which WMF is a party - be subject to strong community input and change without losing the integrity of the document. When we started this process, this approach seemed to be acceptable to folks. Indeed, in the past, legal-like documents were not given the opportunity for community input as we see here. See, e.g., the access to non-public data policy, the data retention policy, the conflict of interest policy, the gift policy, and the trademark policy. I'm trying to change that here by having strong community participation, resulting in strong discussion and numerous edits to accomodate community concerns. The past discussion also makes clear that simultaneous translation of the proposed terms of use is important to the international community, and I'm trying to accomodate that need as well. This seems to have worked well the last 3 1/2 months, and I suggest we use the same approach until the end of the comment period. That said, I'm open to suggestions on how to do this differently in the future. Geoffbrigham 06:27, 11 December 2011 (UTC)
I'm sorry MZ but your 'small' comment is completely out of line. This is a relatively complicated legal document and Geoff is trying to find a good way to allow an EXTREMELY open discussion (and has drastically rewritten it because of the comments here). Anywhere else and this would be cause for newspaper articles and newscasts (but here it is just business as usual which is why I love the projects and community). I would say he has actually succeeded in almost everything he set out to do here and continues to do so. He is the one who has to sign off on this document as legally sound before it goes to the board and the foundation is one of the main parties it is binding so it makes total sense to restrict completely open editing especially when we have this page and is in now way against our values or morals. The community has NOT typically had a say in board polices before they are written and approved and we should be happy that we are finally seeing a change in that. James (T C) 06:51, 11 December 2011 (UTC)
I don't see how "but we've done worse in the past" is a reasonable argument for current or future situations.
The question is whether there should be open editing on this document. Seeing as it's a draft and has absolutely no legal weight or authority, I see no reason to put aside standard wiki practices and allow open editing. I've never heard Wikimedia Foundation staff make the argument that editing (of any page) should be restricted to preserve the "integrity of the document" (whatever that means).
It'd be helpful to me if someone could lay out (without using the word "integrity") what the actual issue with open editing here is. Why is this draft so vitally important and complex that it can't be subject to the same editing standards found elsewhere? If someone went through and copy-edited it (which it most certainly needs), what exactly would happen to ruin the draft? This seems like a lot of hysterics and paternalism on the part of a few Wikimedia Foundation employees/contractors. --MZMcBride 15:48, 11 December 2011 (UTC)

This idea that I'm the first person to raise any objections to the lack of open editing in this process (after 3.5 months) is a nice one, but has no basis in reality. Looking above on this page, several users (Rich Farmbrough, Kusma) brought this point up in September and were quite simply ignored. I'm inclined to unprotect this page in short order. There is no basis in policy or precedent for the page protection of a draft like this. --MZMcBride 16:15, 11 December 2011 (UTC)

I favor the current process and agree with Geoff's reasoning. There are some things the wiki process simply doesn't work for, including source code, mathematical proofs, and legal documents. What these all have in common is that a single small change by a user who had an honest misunderstanding about the content can have catastrophic effects on its validity. Such fragility makes authoring by a trusted, skilled person or a small trusted group with a thorough review process absolutely necessary. The amount of transparency and open participation going into this process is unprecedented, and unlike a Wikipedia article with few interested editors, I don't think anyone's suggestions will be overlooked if they just mention them here on the talk page. I think it's misleading to suggest it's "just a draft" and, having no legal force, should be editable, as it is gradually undergoing the process of editing from a draft into the final version, and I want that editing process to be visible to the public as it happens.
However, what I do favor is placing translated copies of the human-readable summary on each local project, and making them editable by the community, who can choose what parts of the TOU to emphasise and fine-tune the wording based on their needs. The summary will never be a legal document, but will be what everyone reads first (and in many cases last), so I think the efforts of concerned editors are better spent on that. Dcoetzee 16:52, 11 December 2011 (UTC)
Also, disruptive editing on this page confuses the translation process which is already underway.
As a compromise, if the project timeline allows for this, I'd suggest making a copy at Terms of Use/Unstable and continually merging acceptable changes back into the stable copy.--Eloquence 21:50, 11 December 2011 (UTC)

MZ, this is a solution in search of a problem, and on top of that, obnoxious.

This is a document for which Geoff has primary responsibility, but that requires substantial community input. He designed a process, with considerable input, that worked for him, and that offered substantial opportunity for engagement and discussion. Is it the process we're used to seeing? No, not exactly. Has it been working? Yes. This is very much in the spirit of "be bold."

Erik's suggestion, to start an "unstable" version that is not protected, is a useful one; and as an experienced wiki user, you really shouldn't need somebody to suggest it.

This process has been working well for several months; if you're worried that people like Rich and Kusma have been aggrieved in some significant way, maybe you should suggest they speak up for themselves. But what I've seen over the months is an evolving system with regular engagement by Geoff and other WMF staff that fully respects and incorporates a variety of perspectives. If page protection is one of the components of that functioning system, I can't see what would be gained by disrupting it now. -Pete F 22:31, 11 December 2011 (UTC)

What happened to Wikimedia's values? What happened to open editing? You're sitting here trying to justify full page protection of a draft of an agreement between the Wikimedia community and the Wikimedia Foundation. It'd be simply crazy if the community were allowed to edit such a document, wouldn't it....
I think it's rather disheartening that nearly everyone who has commented here is past or present Wikimedia Foundation staff. The idea that full page protection would ever be appropriate is simply insane and is completely contrary to Wikimedia's values. But according to this group, Wikimedia's values no longer include community engagement, input, or editing. --MZMcBride 13:24, 12 December 2011 (UTC)
The process started in a completely dysfunctional way with changes being agreed on this talkpage but not actioned until the next version was coming out, and in the meantime people re-raising the same points. We managed to get a concession to the current system with points being changed on the main page once they are agreed on this talkpage. But that was always a compromise between the way the community works and the way the Foundation wanted to run this page. It would certainly be fair to say that once we started getting agreed changes made the process became functional. But I wouldn't describe it as working well, OK perhaps, but not well. However a mostly functional compromise between the way the WMF works and the way the community works hasn't been such a commonplace in recent months.WereSpielChequers 14:33, 12 December 2011 (UTC)
I agree to what was said. There was an enormous pressure from the WMF to accept what was drafted and btw. to accept is a human right, not to the same. But its certainly all in favor or the institution, not the contributors. If the board signs this, so be it. But it has to be aware, that this are "authoritarian" tendencies. I cant agree - cause theres nothing for the community in it (simply look for one single word). The community is YOU. Without that nothing gained and everything lost.--Angel54 5 17:15, 12 December 2011 (UTC) I would agree, if some of the community based people would be allowed to make proposals and changes - but this procedure is in deep undemocratic. The WMF holds its hands upon this.--Angel54 5 17:28, 12 December 2011 (UTC)
And btw. I would trust PeteF and WereSpielChequers to make some changes the concerning the role of the community - they are contributing much helpful stuff as far as I can see.--Angel54 5 17:32, 12 December 2011 (UTC)
I do not understand why you believe that you are not allowed to make proposals. The whole point of the discussions on this talk page is for you to make proposals. In fact, you personally have made proposals, e.g., that the German Wikipedia should no longer be permitted to display your IP address on a page about banned editors. So given that you have made proposals, why do you say that you are not allowed to make proposals? WhatamIdoing 22:45, 12 December 2011 (UTC)
I recognize that this isn't the "normal" way to handle a page, but I think in this instance that it's been a functional method. For one thing, rapid changes make discussions difficult and translations nearly impossible. WhatamIdoing 22:45, 12 December 2011 (UTC)
Im not the community - just an innocent bystander - and btw. thanks for the "banned editor" - u dont even know how fast that is happening if u r argumenting with influential people about the facts (12 days). Dont talk about sth. u dont know anything about. But what I learned in this process is that kicking downwards and being a bootlicker upwards is a "normal" behaviour. Thats why I think this document is ordered from above. Who wants it, who needs it? Who is taking care of the contributors, the community? Noone.--Angel54 5 22:35, 13 December 2011 (UTC) PS.: The "Cui bono" principle - ever heard?

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Maggie Dennis (WMF) 20:22, 26 December 2011 (UTC)

Yes check.svg Resolved.

Given this statement in the Logo section:

it is important that, at the Wikimedia Foundation, we protect our trademark rights so that we can protect our users from fraudulent impersonators.

and this statement:

You can find a nonexhaustive list of our trademarks here

Wouldn't it be most appropriate, for the purpose of ensuring that users are using the correct website, to direct users to a list of all current trademarks used across the Wikiprojects, rather than a limited set? Wouldn't it be relatively simple to make a page listing all currently used trademarks? I Jethrobot 17:00, 10 December 2011 (UTC)

The answer to your last question is "no": Trademarks change over time, and promises about complete lists have a nasty way of causing problems later, usually from tendentious people who say things that amount to, "I checked your complete list back in 1973, and this wasn't on it, so why are you complaining about my trademark abuse last week?" For a large organization, maintaining a complete list can be quite difficult. (The list of registered trademarks is easy, but the list of non-registered trademarks is hard.) Although many people actually provide complete lists (as best they can, at least), basically nobody promises an exhaustive list any longer.
Anyway, because the answer to the second question is no, then the answer to the first question is also no. WhatamIdoing 18:14, 10 December 2011 (UTC)
Always speaking as though u r the Board, arent u? Not just a member - but the Board in one person. Congrats? When can we look further to ur election? I simply need such a naysayer--Angel54 5 18:05, 18 December 2011 (UTC)
Chill out Angel. There is no call to talk to WhatamIdoing like that. She provided good info on why one form of words is normally used rather than another in this type of legal agreement. Filceolaire 20:15, 18 December 2011 (UTC)
@Jethrobot. Your question is a good one, but WhatamIdoing is corect (on a quite sophisticated level). We are constantly considering new trademarks, registered and unregistered. We want to avoid a situation where someone tries to play legal tricks by claiming ownership to a trademark simply because it is not listed. That is not the law, and we don't want to facilitate that game-playing by having absolute terms in the TOS. Many thanks for raising the issue. Geoffbrigham 01:32, 20 December 2011 (UTC)
Well, it just seems difficult to know whether someone is infringing on a trademark used by Wikipedia or other projects if they have no idea it actually exists. Whether the trademark is registered or not is one matter, and I can understand why proposed / trademarks under consideration may not be listed. But whether the trademark is in use is another. It doesn't seem difficult to maintain a list currently used trademarks on a central page for this kind of referencing. Are the ones listed above comprehensive in terms of logos that are currently in use? I Jethrobot 03:01, 20 December 2011 (UTC)
Yes, it's difficult. Nobody's saying that it's anything other than complicated for the average person to sort out. That's why there are professionals who specialize in the field, and why Geoff's not pretending that it's possible to produce a guaranteed list of currently used trademarks.
But I want to say that it really is difficult. The WMF is not trying to make things harder than necessary. They're actually trying to assemble and maintain as comprehensive a list of trademarks as humanly possible, because having that list makes their jobs easier.
The problem is that not all currently used trademarks are actually known to the people maintaining the list. Trademarks often grow organically or accidentally. Unless you've explicitly been hired to create a corporate logo or similar collateral, you don't normally sit down and say, "Today I'm going to create a trademark." A trademark might start as a pithy comment or a one-off image and seem completely unimportant at the time of its first use. Consider, for example, a tag line that you add to a fundraising ad: you don't mean for it to be anything other than a bit of text that you hope will encourage donations. But if it starts taking on a life of its own, or if it becomes the slogan for future fundraising campaigns, then it might become a valid trademark. Then you have a situation in which a now-trademark has actually been used, sometimes for years, without anyone saying, "Hey, people are using that to identify us now. We need to figure out whether that's really a trademark." And if you decide that it is a valid trademark, then you look back and realize that your "currently used trademarks list" has been incomplete since the day you first used that slogan—not out of malice, but because you didn't actually realize that this really was a trademark until much later.
So they're already giving you the best list that they can, but the fact is that for a group of this size and complexity, the "best possible" list is probably (but not certainly) incomplete.
As a bonus, I'll give you an example: "WikiProject" might be a WMF trademark. It's a characteristic name for a characteristic type of group on WMF websites. If you see a reference to a WikiProject anywhere on the web or in print (e.g., PMID 21282098), your mind immediately assumes that it refers to the WMF websites. It's been in use for years. Nobody sat down and said "I think I'll come up with a special, trademarkable name for this type of group". It's not on the list. But it might be a valid trademark. (And now poor Geoff has another item to add to his task list.) WhatamIdoing 17:57, 20 December 2011 (UTC)

Spreading the word about these discussions

en:MediaWiki_talk:Sitenotice#Wikimedia.27s_new_Terms_of_Use – Time is short, and I would like to see more activity in these discussions. Do the users here feel that a Sitenotice message would be appropriate? --Michaeldsuarez 19:13, 12 December 2011 (UTC)

Do we really need "more activity"? We've had half a million bytes and substantially more than 100 unique commenters so far. What makes you think that increasing the volume of activity will actually result in a better final product, rather than just more time and energy wasted achieving the same end? An infinite number of cooks in the kitchen does not produce an infinitely better soup. WhatamIdoing 23:01, 12 December 2011 (UTC)
I don't believe that it's right for only a small percentage of Wikipedians to know about the proposed changed. I don't believe it's right for them to miss their chances to speak out. I care more about right and wrong than I do about efficiency. @Geoff and WMF employees: Can you please look into what Steven Walling suggested and create a blog post or something like that. --Michaeldsuarez 00:33, 13 December 2011 (UTC)
(ec) Agree w/ wmidoing, not a good idea; anybody and everybody who's interested in this is already here. Seb az86556 00:34, 13 December 2011 (UTC)
I would absolutely love to see a blog post from Geoff. But I don't think a broad call for participation is what's needed here. There has been a great deal of processing here; what's ultimately important is less "did enough people get to speak up" than "were the important issues addressed." We've had a lot of smart, thoughtful people putting in long hours on the ToU, and I'm pretty confident that for the most part the important issues have been raised and dealt with. Reporting that a long and in-depth process is coming to a close makes sense; requesting that a lot of people try to find new issues that haven't already been deliberated, I don't think that would be helpful this late in the game. -Pete F 00:40, 13 December 2011 (UTC)
Geoff will see this and may be able to make a blog post, but, for what it's worth, we've been making broad appeals. :) In October, I sent this message to all of the pages listed here. A week or so later, it was sent out again, to this list. There have also been multiple announcements made in mailing lists, AIR, although I'm not sure the details there. Geoff also did an Office Hours, where this was part of the conversation. --Mdennis (WMF) 11:46, 13 December 2011 (UTC)
Agreed -- Maggie, you have certainly been doing a great job getting the word out (and I thought so even before I saw this list of venues!) -Pete F 01:45, 16 December 2011 (UTC)
I agree that Maggie has done a great job here getting the word out. I will think about doing a blog post, though time is a little tight with the holidays and SOPA ongoing. I wonder if an IRC chat on the TOS would be useful? If there is a strong vote for a blog, I will find time to write it. :) Geoffbrigham 02:05, 20 December 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Maggie Dennis (WMF) 20:17, 26 December 2011 (UTC)

Closing of Discussion: December 31?

Given that community comments and suggestions are slowing, I would like to propose that we close our discussion on the proposed terms of use on December 31. This will have allowed us approximately 4 months to discuss and revise the proposed TOS. Given the number of translations, my hope is that we are giving our international community sufficient time to provide feedback as well. I frankly feel the proposed TOS is a stronger document because we took the time to review and revise based on your response, suggestions, and revisions. If people see strong reasons not to close on December 31, I would be most appreciative in your letting me know. Geoffbrigham 01:40, 6 December 2011 (UTC)

I've decided to spread the word about the possible conclusion of these discussions on enwiki: [3], [4], [5]. If anyone can do the same for non-English wikis, then please do so. Hopefully, everyone will have a chance to say something before these discussions end. --Michaeldsuarez 14:12, 6 December 2011 (UTC)

shopping online

I'm not sure what the commercial speech originally added here [6] was supposed to prove. Perhaps it was a response to my comment immediately above. In any case, I think it does show the need to limit ads and commercial speech in Wikipedia. Smallbones 14:31, 15 December 2011 (UTC)

Previous litigation

To justify these terms of service, please list all litigation in which the Foundation has been involved. Is there an actual problem, or is this simply some lawyer getting carried away? What other non-profit web sites have been involved in litigation and have benefited from EULA terms? -- 16:58, 15 December 2011 (UTC) (This is User:Nagle on Wikipedia. For some reason I'm not logged in on Meta today.)

You may be interested in the section #Reasons for the New Terms of Use above. -Pete F 21:42, 15 December 2011 (UTC)
Hi Nagle. As Pete points out, I have detailed the reasons for the terms of use above. We are involved in significant litigation worldwide and of course we will have more litigation in the future. When I worked at another major Internet company, we constantly quoted from our terms of use to support litigation arguments such as: (1) we are only a hosting service; (2) we are not liable for content; (3) we take no responsibility as to accuracy; etc. In addition, as I explain above, a solid TOS deters legal threats and allows us to explain to lawyers who want to sue us as to why they should not. Read my section above, and, if you have more questions, I'm happy to respond. Geoffbrigham 00:28, 16 December 2011 (UTC)
I believe the scope of this document transcends what is required to safeguard the Foundation in legal situations. It looks to me that it has grown to the size of something that is not necessary if the intent is only to protect the Foundation during litigation. Cptnono 23:35, 18 December 2011 (UTC)
Is legal protection the sole valid reason for having terms spelled out? Don't you think it's reasonable to provide a little education to users, like saying that we have a "goal of providing free information to the widest possible audience" or that "We happily welcome your participation in this community"? That's probably not necessary to protect the WMF during litigation, but it doesn't seem to be harmful. WhatamIdoing 00:53, 20 December 2011 (UTC)
As I pointed out at the top of the talk page, there are numerous reasons for a TOS. (I specify 11 reasons after my intial message.) Also I have deleted significant amount of text (including text that is arguably protective of the Foundation) to respond to the community concerns. And, when we talk about what is really necessary, I submit that it is appropriate to look to the user agreements of like-minded organizations. When we do that, we see for example at Mozilla and Creative Commons that their TOS' are no less complicated than ours, even though one might argue that the legal risks are arguably lower for those organizations. I definitely hear Cptnono's point, but, in light of the above, IMHO, I think this TOS feels about right when we talk about education of the community and additional legal management. Geoffbrigham 18:56, 20 December 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Maggie Dennis (WMF) 20:16, 26 December 2011 (UTC)

"Management of websites" section

An editor is interpreting the existing language as implying that the ultimate appeal of community sanctions/ArbCom bans etc may be made to the WMF. The editor has concluded this by the following route: the draft terms of use states "The community has primary responsibility to address violations of Project policy and other similar issues. At the Wikimedia Foundation, we rarely intervene in community decisions about policy and its enforcement." This implies that the WMF may intervene and overrule anything the community does if necessary. I think this interpretation is a stretch but perhaps if the intention of the draft text is to appoint the WMF as the forum of last resort for all disputes perhaps it could be expressed more explicitly?  Roger Davies talk 13:56, 16 December 2011 (UTC)

I hope Geoff will forgive me for stepping on his turf for a moment, but I am pretty darn certain that the very last thing the Foundation would want is to become the final appeal for decisions made on individual projects: not only do they not have the resources for handling something that scales very poorly, but they historically do not want to get involved in day to day governance of the various projects.
What this statement says to me is that they [the WMF] may occasionally intervene of their own impetus in cases where legal or foundation issues may impact a project, not that issues internal to the projects may percolate back to their level. — Coren (talk) / (en-wiki) 18:37, 16 December 2011 (UTC)
I agree that the WMF does not want to waste their limited resources on such things, but the fact is that they have the legal and moral right to do so if they choose to. In the case of a truly egregious problem (I dunno: a group of men at some small project decided to ban all women?), then I suspect that they would do so.
I'd be surprised if people hadn't already attempted to make the WMF overturn such decisions. Perhaps there's already a boilerplate response sent to such people. WhatamIdoing 18:57, 16 December 2011 (UTC)
It is conceivable that a rogue group could take control of a small project and in those circumstances I would expect the WMF board to intervene to correct that situation. In TOS terms this would mean the WMF board is the court of final appeal. Anyone can petition the board to intervene. They would however, like the US Supreme court, have the right to refuse such a petition. This, like the right to fork discussed previously, is something that the board may consider adding to the TOS in the future, through a formal board resolution, but have not done yet. Personally I think they should. Filceolaire 20:56, 16 December 2011 (UTC)
It's not a stretch, of course they overrule anything. They own the place. Seb az86556 22:10, 16 December 2011 (UTC)
They own the place and they have root access to the servers so they can do anything however the continued success of the project depends on the cooperation of editors, who they don't employ or control, and the trust of readers, who can easily go elsewhere for information, and donors who can choose not to donate. Being seen to be fair in how they operate the site helps achieve that cooperation and trust and having a clear set of principals set out in the Terms of Use is part of that. Filceolaire 23:17, 16 December 2011 (UTC)
True; I was simply making the above comments plain and simple. As for trust — if some clique of weirdoes comes to the consensus to turn a wikimedia project into a site that sells groceries online, I expect the foundation to pull the plug. And I trust they'll do it. Seb az86556 07:33, 17 December 2011 (UTC)
@Roger Davies. Even if the Foundation has the right to overrule local consensus that doesn't mean that every banned user has the right to appeal to the Foundation. In most countries you appeal to the Supreme court, not the head of state. WereSpielChequers 01:02, 18 December 2011 (UTC)
Every banned user has the right to appeal to the WMF (you can't stop people sending emails) but the WMF has the right to refuse to hear their appeal (e.g. if they fail to even allege a suitable case). There are lots of places where, until recently, you would petition the King for redress if you felt you had been badly treated. In the UK the prosecution still represents the Crown and until very recently a subcommittee of the House of Lords (i.e. the Law Lords) was the court of final appeal in the UK so having the legislature or executive be the court of final appeal is not unheard of.Filceolaire 02:13, 18 December 2011 (UTC)

For perspective, we get appeals of this type fairly frequently. I can't recall a single time that we've stepped in to overturn a legitimate decision of a community body on a matter like this. There have been a handful of times where a local community is tiny and we've gone in and mediated a compromise or something, and I can think of one time where a local community was unable to stop someone from violating some significant rules (who was also just about the only active admin) and we've gotten involved there. But as a general rule, if a community is at "critical mass", we don't get involved. And yes... I have a boilerplate response for that. :) Philippe (WMF) 02:52, 19 December 2011 (UTC)

So the current system is that such appeals are routed to Philippe (WMF staff) and he deals with them with minimal oversight by anyone else, calling on others for help on an ad hoc basis. This works well because Philippe does a good job. If at some stage in the future the WMF board or the community decide to create a more formal system then the TOU can be ammended to refer to this. --Filceolaire 13:36, 19 December 2011 (UTC)
Thanks for this discussion. I appreciate Roger's point, but, if I read this thread correctly, we presently do not see a need to change the language. If I have that wrong, please let me know. (As a sidenote, this process with the TOS has been so interesting for me. It is requiring us to bring our group understanding on process, protocol, and practice together. I have learned so much and I'm quite appreciative to those who have participated.) Geoffbrigham 19:13, 20 December 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Maggie Dennis (WMF) 20:15, 26 December 2011 (UTC)

How about a redline?

... or at least a diff? Svanslyck

Of what? The diff tools work fine for that page... Philippe (WMF) 02:46, 19 December 2011 (UTC)
If you mean a comparison to the existing one, then practically every word outside the ==7. Licensing of Content== section is new, and practically everything in that section has been either re-phrased or re-organized. WhatamIdoing 01:08, 20 December 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Maggie Dennis (WMF) 20:15, 26 December 2011 (UTC)

Criminal liability for breaching the TOU

There have, I believe, been a number of cases where poeple have faced criminal prosecution for breaching the terms of use of a website. Wikipedia and the other WMF sites operate around the world including countries where governments seek to control the information circulated about them and might wish to use such prosecutions to harass editors.

Is there a form of words we could include in the TOU to make clear that, for instance, using a sockpuppet is not cracking even if it is accessing our site in an unapproved manner.

Do we want to include a form of words that mean that, even if you hack into our servers and bring the entire system down it should be treated as a technical rather than a criminal problem? What about if you hack into our donor database and use it to steal money? --Filceolaire 13:35, 19 December 2011 (UTC)

Pardon me, but why should it be considered that a technical problem? I don't agree at all that bringing the entire system down should have no repercussion. Quite the contrary, and I think the WMF would be irresponsible to include such a statement. Snowolf How can I help? 13:44, 19 December 2011 (UTC)
I agree but that leaves us with the problem of where to draw the line between that and having a sock puppet and the bigger problem of how to find a form of word which can apply to a rogue prosecutor determined to enforce our Terms of Use in the courts while still leaving open the possibility of criminal sanctions for more serious attacks. Any one have any ideas? Filceolaire 17:29, 19 December 2011 (UTC)

This appears to have been largely solved by the US courts already (and the US law is all that the TOS can realistically address); see, e.g., this summary. Additionally, it would be pretty difficult for a rogue prosecutor to bring a trivial case (your sockpuppet example) with the WMF publicly denouncing him for overreaching, which is the realistic outcome of any such effort. As a result, I'm not convinced that we need to say anything. Saying nothing would probably have the best outcome, allowing the WMF to denounce idiotic prosecutions and to support prosecutions for serious crimes (your theft example). WhatamIdoing 01:15, 20 December 2011 (UTC)
Thanks WAID. That makes sense. Filceolaire 13:09, 20 December 2011 (UTC)

This section has been reviewed. If there are new issues or outstanding concerns related to this, please start a new conversation. Maggie Dennis (WMF) 20:14, 26 December 2011 (UTC)