I just created a new test account on one of the Stack Exchange network websites. I noticed that before I post, Stack Exchange network websites never make me click an "agree" button to agree to release my posts as Creative Commons.

And the network Terms of Service say, "The ... Content ... and any Software are provided ... without warranties of any kind ... including ... non-infringement."

Given all that, can I truly safely assume that anything on any Stack Exchange network website really is Creative Commons licensed?

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Yes. Before you post you where advised to read the faq, where the CC licensing is documented. –  Yannis Jan 17 '12 at 8:06
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But see meta.stackoverflow.com/a/19466/177022 –  unforgettableid Jan 17 '12 at 8:27
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@unforgettableid - the statements you link to in your comment are just a couple of guys opinions. Why are their opinons worth any more than the opinions of the couple of guys who set this site up and thought that the current situation was clear enough? (And more than likely, took proper legal advice on whether or not their opinions were correct, before trying to build a massive family of websites out of it) –  RobM Jan 17 '12 at 8:58
    
Related: meta.stackoverflow.com/questions/78167/… –  Pëkka Feb 26 '12 at 18:06
    
@Rob don't forget that there are many, many jurisdictions. For example, as CodeInChaos mentions below, if SO's licensing ever becomes the concern of a German court, the license being mentioned in the TOS is not going to be deemed clear enough. –  Pëkka Feb 26 '12 at 18:08
    
@Pekka'sReputationBordello - quite right. You'd assume (yeah, I know, I know) that the legal opinion sought at the time included the point that this would be an international site with an international audience, and the implications of that. Which makes the point about the German legal position worrying. Still IANAL here in the UK, let alone anywhere else. –  RobM Feb 26 '12 at 18:22
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3 Answers

up vote 9 down vote accepted

IMO you can't. For two reasons:

  1. The agreement is pretty hidden, making it potentially unenforcible
  2. Perhaps the poster simply didn't have permission to contribute the content in the first place. While that's technically his fault, it's still you who has the issues.

Stackexchange obviously can't do anything about the second issue. But they could at least reduce the likelihood of the first.


I wouldn't be surprised if (German) courts would consider the way it currently works on SO invalid. Just because something is written in the ToS, does not mean it is valid.

This mainly depends on whether the clause is unusual/surprising. One could argue that you expected your answer to be used on the target website, but not redistributed with such broad terms.

I think that stackexchange should make it clear that the user licenses the content as CC-BY-SA as part of the form itself. I'd put a sentence like "By posting your question/answer, you agree to release your contribution under the CC-BY-SA 3.0 License" between the text area and the submit button.

For example wikipedia uses:

By clicking the "Save Page" button, you agree to the Terms of Use, and you irrevocably agree to release your contribution under the CC-BY-SA 3.0 License and the GFDL. You agree that a hyperlink or URL is sufficient attribution under the Creative Commons license.

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+1 this is something that could blow up in SE, Inc.'s faces one day. Jeff has a relaxed stance on this stuff and I appreciate that a lot - especially in today's world of silly disclaimers and paranoid legal fears dictating business practice everywhere. But a simple "I agree" click-through agreement when signing up would make things that much safer –  Pëkka Feb 26 '12 at 18:01
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Note that no amount of click-through legalese will ever protect you if you decide to re-use something the original poster didn't have the right to post in the first place (your reason #2). This is effectively impossible to guarantee. –  Shog9 Feb 26 '12 at 18:15
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From the Terms Of Service you link to:

 3. Subscriber Content

You agree that all Subscriber Content that You contribute to the Network will be licensed under the Creative Commons Attribution Share Alike license. You grant Stack Exchange the right and license to use, copy, cache, publish, display, distribute, modify, create derivative works and store such Subscriber Content and to allow others to do so (“Content License”) in order to provide the Services.

By using Stack Exchange, you agreed to the TOS. Questions?

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I agreed? Wikipedia's "Browse wrap" article discusses this topic in US law. From there, it seems that to get implicit agreement to a contract, a website must conspicuously say there's a contract. E.g. in Hubbert v. Dell Corp. a buyer was told 3 times while ordering that "All sales are subject to Dell's Term[s] and Conditions of Sale". Compare Specht vs. Netscape: the plaintiffs would've had to scroll to reach the EULA, so it was deemed unenforceable. –  unforgettableid Jan 26 '12 at 1:52
    
Just because ToS contain some clause, that doesn't mean that the clause can be enforced. Courts find ToS clauses invalid quite often. –  CodesInChaos Feb 26 '12 at 18:08
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And the network Terms of Service say, "The ... Content ... and any Software are provided ... without warranties of any kind ... including ... non-infringement."

That's because any such guarantee would be foolhardy. Even if we made you sign your name in blood to a piece of parchment before signing on to the site, it's all but impossible to verify that what you post is your original work - if you decide to re-post copyrighted material from some private document you have access to, we won't find out until the real author comes calling...

Yeah, we handle those situations in compliance with US law, but anyone copying your posts in the meantime is still at risk.

Sorry. This is the ugly truth of copyright law - there's no possible way to build an iron-clad defense in advance. Heck, the bankrupt, discredited SCO is still going after IBM. If you want to feel warm and fuzzy about not getting sued, don't re-use or quote anything. And then knock on wood...

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Yeah... this is true, of course, and quite reasonable. Still, a click-through agreement would be helpful at least for the case of original posters saying, "wait, what? My content is now CC-Wiki? SO didn't tell me that, so you can't use my contributions!" Most jurisdictions don't enjoy the lavish "fair use" and takedown provisions that you guys have in the US (as long as SOPA doesn't pass, at least). Elsewhere, a copyright infringement allows you to bill, or sue, the offender straight away –  Pëkka Feb 26 '12 at 18:52
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@Pekka: well, that might aid us in covering our collective asses, and may help your defense if someone does decide to sue you over it - but even in the US, there's absolutely nothing stopping someone from taking you to court if they just want to cause you trouble. –  Shog9 Feb 26 '12 at 19:14
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yeah, true. I can also kinda see Jeff's point about resisting legal BS... but I remain in favour of showing a small checkbox - it doesn't do any harm, plus it's fair to inform the user what license they are agreeing to (and how cool it is!) –  Pëkka Feb 26 '12 at 19:17
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It's not even just about legal stuff. It's about telling users clearly what you're doing. –  CodesInChaos Feb 26 '12 at 19:42
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@CodeInChaos: if you feel the current situation isn't clear, then that's a much better reason to add something. I don't really think we need a big scary "click through to sign your soul away" UI for that though, but if you want to suggest a little "here's the ToS you're agreeing with when posting" blurb next to the Post button for new users, go ahead. –  Shog9 Feb 26 '12 at 22:07
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@Shog9 - meh, the standard behavior on the internet is "by submitting this you give us the right, in perpetuity, to do whatever we want with it". I can't see why, by using cc-wiki, we'd need to be more obnoxious than say Facebook, Google, or any random internet forum. –  Kevin Montrose Feb 26 '12 at 23:58
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