Who owns the content you post on a forum? aka, User Content Licensing

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##Preamble##

We’re working on forum customization features, and are looking for feedback on the TOS and especially our plans for User Content (Contributions) Licensing. What follows is a series of 5 posts discussing the details (seperated for easier reading and replying/quoting.)

For the record, IAMAL, no one on the team is a lawyer - there has been no overall review of these documents by a lawyer (except as noted by Wordpress - as explained below…)

##What is typically common in TOS/TOU documents?##

Looking at existing forums, the a surprising amount of trivial variability in appeared in many TOS documents - and most of that appeared to to me to be the result of lawyers having to justify the billable hours to produce a precisely customized document, not for any significant difference. (I’ve asked lawyers about this, and it is common practice to just lift a tangentially related firms TOS and massage it…) The main difference between some documents was the exact composition of a list like this:

YOU HEREBY GRANT THE PROBOARDS PARTIES A PERPETUAL, FULLY PAID-UP, WORLDWIDE, SUBLICENSABLE, IRREVOCABLE, ASSIGNABLE LICENSE TO COPY, DISTRIBUTE, TRANSMIT, PUBLICLY DISPLAY OR PERFORM, EDIT, TRANSLATE, REFORMAT AND OTHERWISE USE USER CONTENT IN CONNECTION WITH THE OPERATION OF THE WEBSITE, SERVICES OR ANY OTHER SIMILAR OR RELATED BUSINESS, IN ANY MEDIUM NOW EXISTING OR LATER DEVISED, INCLUDING WITHOUT LIMITATION IN ADVERTISING AND PUBLICITY.

(By the way, the ALL CAPS thing is an over-response to the bad-old-days of contract “fine print” scams. Unfortunately, now huge sections of some TOS agreements are all caps, defeating the whole point - since long paragraphs of all-caps are virtually unreadable. We didn’t opt for all caps the Discourse TOS template…)
Creative Commons and Wordpress to the Rescue!

Like with Privacy Policies, the sections of the TOS are pretty standard, even if the language is excessively variant. It looked like a huge challenge to create a universal template for TOS - that was until I encountered http://en.wordpress.com/tos/:

“(Note, we’ve decided to make the below Terms of Service available under a Creative Commons Sharealike license, which means you’re more than welcome to steal it and repurpose it for your own use, just make sure to replace references to us with ones to you, and if you want we’d appreciate a link to WordPress.com somewhere on your site. We spent a lot of money and time on the below, and other people shouldn’t need to do the same.)”

Bravo! At least for TOS, WordPress paid the lawyers time so we didn’t have to. This document is the 90% basis for the Discourse TOS template, and we’re passing the savings onto you! :slight_smile:

But, there is one section that often differs in ways that are very significant to most active users: The User Content License

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##User Content Licensing##

The User Content License sets limits on what the forum operator and the public can do with the content that users generate and post to the site.

The range varies widely, because there are different models for user interaction - some communities are all about sharing and remixing everything freely, and others are professional associations and share on a limited basis, and only with trusted peers.

One generic User Content License section definitely does not serve all, or even most, cases.

###The question for each community is; who gets to control (republish) user contributions?###
The plan is for Discourse to provide these options out-of-the-box:

:white_circle: Only the original poster may republish contributions
:white_circle: The original poster and the public may republish contributions (via Creative Commons)
:radio_button: The original poster and the forum operator may republish contributions [default]

NOTE: In every version of the TOS, the user retains copyright to their original contributions. Each alternative provides the minimum license required to actually store and display the content to the other users, and - if applicable - to the public, and to search engines.

For the Discourse.org sites, we chose option 2: Creative Commons - specifically a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License

Next up: Unpacking the options… [Note - these options are described as interaction design as well as content…]

First - Only the original poster may republish contributions

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This option is for sites that have users sharing content that has commercial value - such as photographers, artists, designers, etc. It provides the user the most rights and the site operator can only use the content in very limited ways related directly to the operation of the forum. This type of license is usually used with private or limited-access forums. (more…)

USER CONTENT LICENSE:

You grant [FORUM] and its users a non-exclusive, royalty-free, worldwide limited license to use,
store, display, reproduce, modify, perform, and translate your Content solely for the purposes
of operating, developing, providing, and using [FORUM]. This includes without limitation distributing
part or all of [FORUM] in any media formats through any media channels, except Content not
shared publicly ("private") will not be distributed outside [FORUM].

Following termination or deactivation of your account, or if you remove any User Content from
[FORUM], we may retain your User Content for a commercially reasonable period of time for
backup, archival, or audit purposes.

Translation: [Forum] operators may only use your contributions to run the site; i.e. display your content to other people - who can interact with it (quote it, edit it, etc.).

Before assuming that everyone should favor this license, consider that very few forums do this - and most of them are Private and/or aren’t indexed by Google. It’s surprisingly hard to get people’s permission to use anything when you have rules like this. (See the YOYOW entry on Wikipedia…)

The next option: The original poster and the public may republish contributions, is also surprisingly uncommon.

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If the contributions on this forum are meant to be freely republished and remixed by the general public, we support the Creative Commons license options. (more…)

If you want to give people the right to share, use, and even build upon a work you’ve created; you should consider publishing it under a Creative Commons license. CC gives you flexibility (for example, you can choose to allow only non-commercial uses) and protects the people who use your work, so they don’t have to worry about copyright infringement, as long as they abide by the conditions you have specified. – CreativeCommons.org

Visit Choose a License to select your desired options, and paste your CC License HTML snippet in the text box below, and it will be included in the TOS:

<a rel="license" href="http://creativecommons.org/licenses/by/3.0/deed.en_US"><img alt="Creative Commons License" style="border-width:0" src="http://i.creativecommons.org/l/by/3.0/88x31.png" /></a><br /><span xmlns:dct="http://purl.org/dc/terms/" property="dct:title">Each contribution</span> by <span xmlns:cc="http://creativecommons.org/ns#" property="cc:attributionName">every Discourse user</span> is licensed under a <a rel="license" href="http://creativecommons.org/licenses/by/3.0/deed.en_US">Creative Commons Attribution 3.0 Unported License</a>.

It will appear in the TOS in this format:

“User contributions are licensed under a [CC License Here].”

See Terms of Service - Discourse Meta paragraph 3 for an example in use.

The final option is the default, and this pattern is in use most often with public forums across web: The original poster and the forum operator may republish contributions.

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This is the most common forum license allows the site operator to do whatever it wants with the contributions. This provides the most flexibility and protection for the site operator in case they wish to use the information for things such as ad targeting (to generate revenue) or updating the software support future formats or in marketing materials. (more…)

USER CONTENT LICENSE:

If you submit anything via [FORUM] or to [FORUM] and/or its owner(s) by any method
(such as a web post, email, file transfer protocol, etc.), you grant the owner(s) of [FORUM]
a perpetual, nonexclusive, world-wide, royalty free, sub-licensable license to everything
you submit, which includes without limitation the right for the owner(s) [FORUM] or any
successor in interest or third party the owner(s) of [FORUM] designates, to use, copy,
transmit, excerpt, publish, distribute, publicly display, publicly perform, create derivative
works of, host, index, cache, tag, encode, modify and adapt (including without limitation
the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail,
scanning or other technologies) in any form or media now known or hereinafter developed,
anything submitted by you. You acknowledge that any submissions you make may be
edited, removed, modified, published, transmitted, and displayed by [FORUM], its
owner(s), successors and/or assigns and you waive any rights you may have in having
the material altered or changed in a manner not agreeable to you.

Translation: Any contribution users make may be used by the [FORUM] owner[s] for any purpose, forever.

Comments? Did we miss an important case? Are there some details you’ve stumbled over getting your TOS ducks in a row?

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Hmm, I am not a fan of this wording. What does “republish contributions” even mean? I would prefer a simpler statement for forum operators, like

Who do you want to maximize rights for on your forum?

:white_circle: the forum users
:radio_button: the general public, via Creative commons [default]
:white_circle: the forum owners

I think that is much much clearer and simpler, and selecting the option could offer more detailed explanations, as needed.

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I’m not sure “rights maximisation” is that much more accessible, and it reduces the information available for people who do understand what’s going on.

I would suggest painting the bike shed thusly:

Your users will always retain copyright on their posts, and will always grant the forum owner enough rights to include their content on the forum.

However, you can choose who else can legally distribute the content outside of the forum by default:

  • Only the user who created the content (i.e. the copyright holders)
  • The user who created the content and the forum owners
  • The general public (i.e. anyone) via a Creative Commons license
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How about a medium way between these two?

Terms Of Service: Who is allowed to republish the content posted on this forum?

  • Only the author (Read more)
  • Author and the owner of this forum (Read more)
  • Anybody (Read more)

This has the following advantages:

  • The whole thing starts with “Terms Of Service”, so it’s obvious to anybody that we’re talking about legal stuff here, not some kind of technical restrictions against Ctrl+C and Ctrl+V.
  • Each option is simple enough and cuts to the meat of the matter without going into subtleties (like explicitly declaring that the forum holder may publish the content as a part of this forum)
  • Every option has a “Read more” link which opens up in a new tab with a detailed explanation. I suggest that this explanation includes the simple, human-readable explanation first, and then the entire document (or the relevant portion) in legalese.
  • All the options are ordered in an increasing order, from least-permissive to most-permissive.

[subjective opinion]On a different note, I’d suggest that you make the “Anybody” option the default one. The Internet has enough of this copyright nonsense already. The cases where you really want to impose such legal limits are few (as noted above - basically only private forums). The vast majority of forum posters and owners either don’t really care about who reposts their words, or are pro-sharing (like me).[/subjective opinion]

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I like this evolution! It’s getting better every pass. :slight_smile:

As long as having the forum moderator make a mandatory choice as part of starting up the system, this is OK. The problem is that it doesn’t meet the observed majority case in existing forums - so if this is not part of mandatory config, we should probably go with the forum-can-do-anything-it-wants option.

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[quote=“frandallfarmer, post:9, topic:4261”]I like this evolution! It’s getting better every pass. :-)[/quote]My edition is the best! Don’t listen to anybody else! :smile:

[quote=“frandallfarmer, post:9, topic:4261”]The problem is that it doesn’t meet the observed majority case in existing forums[/quote]I thought that the objective of Discourse was to make forums better. :wink: Still, you have a good point.

I just wonder - did all those forums out there get such licenses because they actually wanted that, or because that was the default that their forum software came with?

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You have the same suspicion I do, and I want the default to be Creative Commons.

The other rational default for artists, writers, and photographers who will be publishing content on a forum that they want to keep control of is “only the (post) author”.

But the accepted “standard” of the forum owners can do whatever they want with your content is not healthy IMO.

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Ok so barring any objections it is decided, based on the feedback above we will go with:

Your users will always retain copyright on their posts, and will always grant the forum owner enough rights to include their content on the forum.

Who is allowed to republish the content posted on this forum?

:white_circle: Only the author
:white_circle: Author and the owner of this forum
:radio_button: Anybody

The default is creative commons, though forum admins will be admonished to change this to taste in the setup instruction post that comes with every new forum install.

Selecting any one of the above options will expand it and describe more about it so you know what you’re getting into before selecting… I didn’t see a need to include an explicit “read more” link there, it can happen on initial click of the radio option, but before clicking the OK button.

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Except that you haven’t answered/resolved your own original question: “What does republish even mean?”

(Pedanticus note: you change from future to present tense between the two sentences)

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Please see the beginning of this topic, where the TOS sections are in the appropriate level of detail. Each option defines that slightly differently (since Open sets no restrictions, other than original copyright, and the other options must be more explicit.)

For example:

This is the level of detail provided in typical in dozens of TOS agreements reviewed across the web.

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[quote=“Benjol, post:13, topic:4261”]
Except that you haven’t answered/resolved your own original question: “What does republish even mean?” [/quote]

I have warmed up to it. At least the definition is fairly simple, if somewhat ambiguous:

re·pub·lish
/rēˈpə.bliSH/
Verb
Publish (a text) again, esp. in a new edition.

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This may be best split off as another topic: A thought I had was you might have a forum where most content posted by users was just conversations that they don’t mind licensing under CC for the world to reuse. But occasionally, a poster might want to post something more valuable to them that they wish to retain exclusive right to. Or vice versa on a forum with tightly controlled content.

A feature that would make Discourse (once again) more nuanced than traditional forum software would be the ability for posters to mark particular posts as containing content they do or do not want to release to the world at large. The forum owner would set whether posters were able to mark some posts as entirely theirs, or whether they always had to at least give the forum owner control of the content.

So something like this:

User Content Licensing setting |  Per-post settings? | Options user see
Only the author                | Disabled            | Only the author
Author and the owner           | Disabled            | Author and the owner
Anybody                        | Disabled            | Anybody
Only the author                | Enabled             | Only the author*, Author and the owner, Anybody
Author and the owner           | Enabled             | Author and the owner*, Anybody
Anybody                        | Enabled             | Only the author, Author and the owner, Anybody*

The starred options are the defaults. So basically, the user can choose from the three options themselves, with this enabled, with the exception that if the forum owner has said in the TOS that they can republish content, the author of the post cannot take that right away.

Too complicated?

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I appreciate the sentiment, and great post, but… yes.

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maybe someone will eventually make a plugin for this. :stuck_out_tongue:

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OK, so this thread has died, but since I’m nearing the installation of my own Discourse site, and need to address this issue, I’ll attempt to revive it.

We too plan to use CC-BY-NC-SA as our content license, and it’s all well and good that it is documented that way in the site’s TOS. However, if there’s no indication on the topic pages of the license, I’m concerned that it won’t be as effective.

Has anyone experimented with a page footer to hold site contact details, license information, etc.? I know it’s probably anathema to the Discourse team (from a design, not legal, perspective) to support such a thing, but if our legal team requires it, I’d like to be able to do it without having to hack up Discourse too badly.

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