Can you ditch the attribution for own content clause from the Terms of Service?

Question

Deep in the bowels of the SE Terms of Service you will find the following sentence (in section 3. Subscriber Content), with one clause highlighted by yours truly:

In the event that You post or otherwise use Subscriber Content outside of the Network or Services, whether such Subscriber Content was created by You or others, You agree that You will follow the attribution rules of the Creative Commons Attribution Share Alike license as follows:

... standard attribution rules...

I have posted a lot of content on Stack Exchange. I moderate for one of your sites... But I don't see why I'm expected to give your site attribution for my work if I wanted to post it elsewhere (eg on my Blog). Isn't it enough that I'm answering your users' questions in the first place?

I think the highlighted phrase is unnecessary. It's certainly not a legal requirement (you only demand a irrevocable license for the content, it's still ours to re-license as we wish) so having that phrase, as it is, only serves to trip people up if they do dare post it elsewhere.

I do see what I'm sure is your technical argument (it's easier to police infringing sites because they're all infringing if they don't attribute) but 99% of the infringing sites are mass-clones, easy to distinguish from single post copies.

It's not the in the spirit of Creative Commons and the freedoms that were advertised when SO and SE were started. Impinging on users freedoms outside Stack Exchange is certainly not a good reward for the people making your sites viable in the first place.

This can be remedied with a quick replacement of the highlighted portion to something like this:

In the event that You post or otherwise use Subscriber Content outside of the Network or Services, that was not entirely created by You, You agree that You will follow the attribution rules of the Creative Commons Attribution Share Alike license as follows

Answer 1

Update: We didn't just cut it from the TOS. Given that the old wording understandably concerned people, we wanted to be crystal clear, so we literally reversed it.

The old phrase:

whether such Subscriber Content was created by You or others,

has been changed to:

with the exception of content entirely created by You,

We could have just cut it, but wanted to make it explicitly clear that users can re-post their own content elsewhere as they see fit.

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Philosophy: Your content is yours.

You give up one big thing by posting it here:

• Your right to stop us (and others who see it here) from sharing it with others who can be helped by it, provided they include the required attribution.

Posting your content here should not in any way restrict your rights to use or post it yourself.

To be clear, we did not intend to apply wacky requirements that you link back to us when you post your own content that you generously shared with the world on our site.

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Answer 2

That clause contradicts everything we've ever been told about posting on Stack Overflow, which was supposed to be happening under the nonexclusive CC-Wiki license. Creative Commons' FAQ state:

Q: Can I enter into separate agreements or understandings with users outside the scope of the license?

A: Yes. CC licenses are nonexclusive. Licensors always have the option of entering into different, separate arrangements for the sharing of their works in addition to applying a CC license.

That means that we, who license content to Stack Exchange, are supposed to retain the rights to our own work, to publish it whichever other way we please, for example on our blog, without having to attribute Stack Exchange.

Now by requiring attribution even for our own content posted on the network, the clause effectively takes away that non-exclusivity. (or at least tries to.) This changes the nature of the license fundamentally, and may even be in violation of Creative Commons' terms of use - as long as the limitation is there, they may not be allowed to use the Creative Commons logo and license:

Problems arise when licensors design those terms or arrangements to serve not as separate, alternative licensing arrangements but as supplemental terms having the effect of changing the standard terms within the CC license. Except in the limited situation where more permissions are being granted, if the additional arrangement modifies or conflicts with the CC license terms then the resulting licensing arrangement is no longer a CC licensing arrangement. In those instances, to avoid confusion by those who may mistakenly believe the work is licensed under standard CC terms, we must insist licensors not use our trademarks, names and logos in connection with their custom licensing arrangement.

I know this isn't a sneaky scheme to take away our rights through the small print, but right now, technically, that seems to be exactly what it's doing. Unless there is some super powerful good legal reason for it that no one of us can think of, it needs to go.

Disclaimer: I am eight lawyers.

I sucked a lawyer's toes once and her powers were transferred to me. That's how it works, right?

1. All lawyers always lie.
2. I am a lawyer.

Answer 3

Disclaimer: I am not a lawyer.

There is a lot of hubbub in the contents which I suspect stem from a misunderstanding of what the license concept is, and what the responsibilities of each party is under the TOS. Finally I will explain what the consequences of not following this statement would be.

Executive Summary

You own the right to your content.

By posting you agree to give Stack Exchange the right to license that content as a part of a collective work under the CC-BY license.

Stack Exchange owns the right to the collective work of Stack Exchange.

If you don't follow the rules, they can terminate your access.

There is no risk to having this statement in there, while the removal may create issues with enforcement of the copyright of Stack Exchange when going after sites plagiarizing material.

General Overview of the License

I create content. It is mine.

I license that content to SE under the terms of the Stack Exchange TOS with the following restrictions:

1. SE can use the content in all sorts of ways even if the Subscriber decide to delete the content later¹, including the right to claim copyright over the entire content of the Stack Exchange Network as a collective work/compilation²
2. The Subscriber is responsible for making sure SE can use the content in all those ways³

^{1: "You grant Stack Exchange the perpetual and irrevocable 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 in any medium now known or hereinafter developed (“Content License”) in order to provide the Services, even if such Subscriber Content has been contributed and subsequently removed by You."}

^{2: "The Network is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws."}

^{3: "Subscriber warrants, represents and agrees Subscriber has the right to grant Stack Exchange and the Network the rights set forth above."}

SE then licenses the content we license to them with the following restrictions:

In the event that You post or otherwise use Subscriber Content outside of the Network or Services, whether such Subscriber Content was created by You or others, You agree that You will follow the attribution rules of the Creative Commons Attribution Share Alike license as follows:

a) You will ensure that any such use of Subscriber Content visually displays or otherwise indicates the source of the Subscriber Content as coming from the Stack Exchange Network. This requirement is satisfied with a discreet text blurb, or some other unobtrusive but clear visual indication.

b) You will ensure that any such Internet use of Subscriber Content includes a hyperlink directly to the original question on the source site on the Network (e.g., https://stackoverflow.com/questions/12345)

c) You will ensure that any such use of Subscriber Content visually display or otherwise clearly indicate the author names for every question and answer so used.

d) You will ensure that any such Internet use of Subscriber Content Hyperlink each author name directly back to his or her user profile page on the source site on the Network (e.g., https://stackoverflow.com/users/12345/username), directly to the Stack Exchange domain, in standard HTML (i.e. not through a Tinyurl or other such indirect hyperlink, form of obfuscation or redirection), without any “nofollow” command or any other such means of avoiding detection by search engines, and visible even with JavaScript disabled.

So Who Owns the Content?

As Richard Tingle brings up in the comments:

which part of that gives them the pursuit power? [under the DMCA or otherwise to make claims on misuse of licensed material]

Despite not owning the copyright to Subscriber Content, they do own the right to the content as a Collective Work. As stated on copyright.gov:

Under the present copyright law, the copyright in a separate contribution to a published collective work such as a periodical is distinct from the copyright in the collective work as a whole. In the absence of an express transfer from the author of the individual article, the copyright owner in the collective work is presumed to have acquired only the privilege of using the contribution in the collective work and in subsequent revisions and later editions of the collective work.

^{This is a normal English explanation of US Title 17 Sections 102-103}

This allows SE to manage the rights to the collective work, including issuing takedown notices for content shared through SE even though they are not the owner of the individual works (the Subscriber Content).

So Why Can't They Just Change the TOS?

As Pekka states in the comments::

What if Stack Exchange goes bankrupt, and its stakeholders decide to sell it to some sort of troll company to raise at least some money, which then starts suing authors for violating the T&C? I don't think that's ever going to happen. But the deal has always been, "the stuff you post here is under a super transparent, honest license"

The license extended to Stack Exchange is for use in a Collective Work over which Stack Exchange has a license -- this does not override individual license for the individual Subscriber Content submitted by each Original Author.

Since SE never owned the rights to the Subscriber Content, as long as you are not using any other content (be it designs, layout, etc. provided by SE) that SE does have a right to, they wouldn't be able to get anywhere.

Any malicious new SE overlord would go after:

1. People using uniquely SE content (logos, layout)
2. People using 'collective work' (full question-answer threads)
3. People using individual contributions from other users

From this perspective, even an evil overlord with unlimited resources would probably place going after users reposting their own content elsewhere last, as it is the content to which SE has the least claim over (read: no claim). Even the third item on that list is a huge stretch, as the individual contribution (Subscriber Content) has a copyright owned by the Original Author, and not Stack Exchange.

It would also be absurdly easy for me, as the author, to point at the TOS and explain that SE is suing me for re-using my own original content to which I never transferred the rights.

If you want to be extra safe (read: paranoid) you should:

1. Keep identifiable records showing you as the content creator with date and time showing creation prior to posting on Stack Exchange
2. For all posts where you have not done the first step, follow the rules in the SE TOS for properly attributing posts you have made (since they are already available CC-BY, no harm in providing them CC-BY elsewhere)

What are the Consequences Anyway?

So let's say this really evil corporation takes over, and decides that you haven't properly attributed your own Subscriber Content that you are the Original Author of. What can they actually do about it?

Stack Exchange may also terminate or suspend any and all Services and access to the Network immediately, without prior notice or liability, if Subscriber breaches any of the terms or conditions of this Agreement. Upon termination of Subscriber's account, Subscriber’s right to use the Services, access the Network, and any Content will immediately cease.

So they could terminate your access to the service and your account. This is not the end of the world. An evil organization who co-opts Stack Exchange could do that anyway without any need to show your violation as explained here:

Although Stack Exchange and the Network will make reasonable efforts to store and preserve the material residing on the Network, neither Stack Exchange nor the Network is responsible or liable in any way for the failure to store, preserve or access Subscriber Content or other materials you transmit or archive on the Network. You are strongly urged to take measures to preserve copies of any data, material, content or information you post or upload on the Network.

The Services, Content, Network and any Software are provided on an "as is" basis, without warranties of any kind, either express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose or non-infringement. Stack Exchange makes no representations or warranties of any kind with respect to the Network, the Services, including any representation or warranty that the use of the Network or Services will (a) be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) meet your requirements or expectations, (c) be free from errors or that defects will be corrected, (d) be free of viruses or other harmful components.