Does the license given to stackexchange forbid the “additional terms”, terminate the license, making it useless? [closed]

Question

The term of service of stackoverflow add "additonal terms" to creative commons license. In this question Are the SE additions to the Creative Commons attribution requirements enforceable? the answer was this clause was not enforceable. Is it possible that beyond not being enforceable, this clause is actually a breach in license terms, which would make the whole license terminate. After termination, a creative commons license should be basically useless, for the purpose redistribution term.

Here are what I call "additional terms" added on stackoverflow term of service.

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

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.

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)

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.

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.

Answer 1

Your basis for arguing a legal problem appears to be that CC-BY-SA forbids "You" from adding any additional restrictions besides attribution-related ones.

There are two problems with this. The first is of course that SE's additional terms are quite clearly attribution-related, which your post admits by calling them the "attribution clause". The second is that you have the wrong understanding of "You" in CC-BY-SA and are identifying the wrong party's responsibilities. It's restricting the final user of the content from using their attribution display for anything involving implied sponsorship or similar. So if I published a book made from SE material (perfectly legal, without compensating SE or any contributors at all), I would have to properly attribute everything, but could not claim it was published by SE in doing so. It has nothing to do with the party granting the license to use at all. The term "You" is capitalized to avoid confusion in the license and does not change its meaning throughout.

There is no problem here, or if there is, it's a lot subtler than your post allows for, and you've shown no evidence for it.

Answer 2

I am not a lawyer, but have some awareness of contract law after 15 years having to negotiate contracts, and nothing in here is even close to illegal. I think the extent of your knowledge is the problem - so you should check with your lawyer.

You can contribute anything you like to Stack Exchange content, and there is an understanding that any return you get from it is in the form of rep (from the community, not from SE) and privileges as a by product of rep - but once posted, the content on this site is no longer yours.

You have agreed to that. It doesn't matter what SE decide to do with the content - they have an irrevocable licence to do with it what they like.

Your recourse if you don't like the terms is to not post content. It is that simple.

Answer 3

The solution to the matter is somewhat addressed here (though with no answer). The problem is that there seems to be a conflict between what CC SA 3.0 says (the relevant bits are in §4), and what the SE TOS says. One condition of the CC license is that

You may not offer or impose any terms on the Work that restrict the terms of this License or the ability of the recipient of the Work to exercise the rights granted to that recipient under the terms of the License.

This means that according to the CC license, if material was copied to SE under that CC license, SE cannot impose additional restrictions, such as the requirement to link to user profile:

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

as well as the peculiar requirement to link to the question, not the quoted answer:

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

Also missing from the SE license is the CC self-perpetuation clause (required under CC) and the no-change language.

The confusion no doubt arises from looking just at this part of the SE license:

You agree that all Subscriber Content that You contribute to the Network is perpetually and irrevocably licensed to Stack Exchange under the Creative Commons Attribution Share Alike license.

However, there is in §13 a merger clause:

This Agreement (including the Privacy Policy), as modified from time to time, constitutes the entire agreement between You, the Network and Stack Exchange with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof.

The CC license gives rise to one understanding, but the SE license differs: it explicitly says what form the attribution must take. The SE license incorporates most terms by reference (to the CC license) but also explicitly states its own terms. The merger clause effectively says "what we say goes". When there is an apparent contradiction in what you would understand the agreement to be according to CC, and what it would be according to SE, it is what SE says that counts.

Suppose that a user were to post content copied from elsewhere, where that content was under the unvarnished CC SA license. The user is obligated to reproduce or link to that license, and then anyone who sees the material on SE knows what the terms are for using that material. The fact of having posted external content on SE does not eliminate the original license conditions. However, the user's own content is subject to a different license. SE could rewrite the TOS to copy in virtually all of the CC but change those bits that it wants to. But that is unnecessary: 95% of the terms can be incorporated by reference, the remaining that are to be changed are explicitly changed in the SE TOS.

Answer 4

Basically yes, according to all right granted to stack exchange in particular the right to redistribute the work. The grant agreement is the 3. of the license which doesn't survive to the termination. There is some bits of the license which survive, but it is just to enforce the no warranty clause (5.), the liability clause (6.) and the termination clause (7.)

Here is my reasoning.

First here in the term of service of stack exchange https://stackexchange.com/legal is the license the author of content gave to stackexchange.

You agree that all Subscriber Content that You contribute to the Network is perpetually and irrevocably licensed to Stack Exchange under the Creative Commons Attribution Share Alike license. 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, except as otherwise set forth herein, 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.

"You" refer here as an user behaving as an author.

As far as I understand, the only licence given to stackexchange by users as an author is the CC-BY-SA 3.0 license (https://creativecommons.org/licenses/by-sa/3.0/legalcode )

As the most famous GPL license, CC-BY-SA has a copyleft term, implying the right given in the license can't be removed.

CC-BY-SA 3.0 text in 4.a "You may not offer or impose any terms on the Work that restrict the terms of this License or the ability of the recipient of the Work to exercise the rights granted to that recipient under the terms of the License." (Here You reference to the distributor of the work hence stackoverflow company)

"You" here is stand for the stackexchange company

Among these right, there is a particular right on 4(c) of CC-BY-SA 3.0 license

The credit required by this Section 4(c) may be implemented in any reasonable manner;" (extract of CC-BY-SA 3.0 terms)

And this is the right for an user to implement it in ****any**** reasonable manner. This right is is restricted by the following enforcement in the same term of service of stackexchange

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

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.

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)

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.

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.

"You" here refer to user of content and especially redistributor of content.

So my step conclusion is that the stackexchange company break the term of the license. So the following part of the license should apply:

This License and the rights granted hereunder will terminate automatically upon any breach by You of the terms of this License. Individuals or entities who have received Adaptations or Collections from You under this License, however, will not have their licenses terminated provided such individuals or entities remain in full compliance with those licenses. Sections 1, 2, 5, 6, 7, and 8 will survive any termination of this License.

At this point, only sections 1,2,5,6,7,8 survive, It is essentially to make sure that the termination clause (7.) stay without removing the no warranty clause (5.), and the liability clause (6.) which protect the sender of the license. Basically all the purpose of the license is left and in particular the license grant (3.) which give to stackexchange right to distribute the work doesn't stand anymore.

To address a comment given bellow, there is no custom licence of stackoverflow in the term of service. The only licence given by an user about it's "Subscriber Content" is explicitely the "Creative Commons Attribution Share Alike" (with a link to CC-BY-SA) as it is quoted in the first extract given in this answer.

To address the other comment given by same user, the stackoverflow doesn't add additional term to the licence, but add restriction in the way the user can use the distributed work.

CC-BY-SA 3.0 text in 4.a "You may not offer or impose any terms on the Work that restrict the terms of this License or the ability of the recipient of the Work to exercise the rights granted to that recipient under the terms of the License." (Here You reference to the distributor of the work hence stackoverflow company)

"offer or impose any terms on the works" is not limited to modifying the license (actually you are not allowed to modify the license.) It include all other means including the part of the term of service;

Note that stackoverflow doesn't receive a license different than CC-BY-SA 3.0 He just ask only for this license. He just add additional terms to the license by another way (the term of service) which apply only to the redistributor of the work. Adding this terms makes a breach on the license which make it terminate for the stackoverflow purpose.