271

Update: I have started a GoFundMe in an attempt to have a court or arbitrator settle this.


On 2019-09-05, Stack Exchange announced that all subscriber content would be available under the CC BY-SA 4.0 license. 34 hours after this announcement, I asked in a comment if that change had been run by the legal department. In the following days, I had not received a response, so I posted a follow up comment, which was promptly removed. I did this again, and ultimately got suspended for a week for repeatedly asking a time sensitive legal question. The original comment currently has 81 upvotes, the most of any in the chain.

I contacted Stack Exchange via their contact form a week ago, and did not receive a response. It is now 17 days after the announcement, with the window (in 4.0) to correct license violations being 30 days. As such, I am asking this again in a standalone post.


Pursuant to the 3.0 license section 4(a)

You may Distribute or Publicly Perform the Work only under the terms of this License.

This single clause makes extraordinarily clear that the original work (which the content is) cannot be sublicensed. Some people have made the argument that it's not clear what the original license was, as a version was never explicitly mentioned in Stack Exchange's TOS. I don't believe this would carry weight, as the announcement makes clear that the content was originally under the CC BY-SA 3.0 license.

My non-legal opinion is that this change is not allowed under the terms of the original CC BY-SA 3.0 license.

Has the retroactive license change been run by Stack Exchange's legal department?

Yes or no. If yes, what clause allows you to do so? That's all I'm asking. Don't give me and the community sly and disrespectful comments about how we're not lawyers so we can't have opinions, which has happened in chat. I will personally interpret the lack of a response as a "no".

Per the 2018 ToS update, Stack Exchange made clear that

We don't want things to come to litigation, ever.

We don't want things to ever come to actually having a case in litigation, nobody likes it.

...

We owe it to you, the people that have put hundreds — more often thousands — of hours of work into our sites, to maintain a conservative legal profile that is exactly sufficient to avoid litigious engagement in today's legal climate. ... we also can’t allow ourselves to fall short of a sensible or reasonable level of protection.

If this is still true, why has there been no response from Stack Exchange on this matter? Not responding may as well be asking for litigation, as there is no other means to resolve this situation.

Please join me in contacting Stack Exchange requesting that they answer this question. It is highly upvoted and has received no response from staff. I have flagged this question for featuring, which was declined.

This question has an open bounty worth +50 reputation from James Jenkins ending in 5 days.

This question has not received enough attention.

  • 10
    @SonictheAnonymousHedgehog That's for derivative works. – jhpratt Sep 22 at 23:23
  • 17
    Do they still have lawyers? – Zoe Sep 23 at 4:58
  • 5
    Any answer to this is exceedingly unlikely. This included, there are now 3 questions regarding this where people have been raising the same concerns, and no answer is forthcoming. – mag Sep 23 at 6:06
  • 17
    I was already afraid of that. I personally think we've come to the point where we better start a lawsuit and have this debate in court between proper lawyers instead of random ramblings from users. This will never stop. – rene Sep 23 at 6:09
  • 10
    @Luuklag okay, we need to start some where, thanks for your 0 cents. Any other takers? Let's crowdfund this ... – rene Sep 23 at 6:22
  • 7
    @EmilJeřábek I'd be surprised if a court of law upheld such a one-sided restriction. – jhpratt Sep 24 at 20:10
  • 76
    I intend on contacting an attorney if Stack Exchange does not respond to my second direct contact by the end of the day Friday. I'm surprised they're not responding, given that the statutory minimum for a copyright violation is $750 per instance. There are over 15 million questions on Stack Overflow alone, let alone answers and the other network sites. If everyone actually bothered to sue, Stack Exchange would be bankrupt. Even if they weren't aware it's a violation it's still a minimum of $200 per instance. – jhpratt Sep 25 at 20:14
  • 7
    I tried to raise awareness to this and I am also not giving permission nor future support to this platform. youtube.com/watch?v=l-zEUl2UmJo – Chris Hawkes Sep 27 at 14:10
  • 6
    @Magisch I'm not sold on the fact that it's fully enforceable, given they did not provide the means they guaranteed. Regardless, many others did opt out or cannot be held to arbitration (EU). – jhpratt Sep 27 at 14:51
  • 8
    @jhpratt did you contact an attorney and if so, what was the outcome? – Script47 Oct 8 at 11:55
  • 21
    @Script47 I have reached out to a few seeking representation. The EFF declined and forwarded it to their listing, where I have heard nothing. The FSF did not respond. My most recent contact is the Software Freedom Law Center, where I am awaiting a response. If anyone else has other ideas, I'm all ears. – jhpratt Oct 8 at 15:12
  • 15
    Stack Exchange never answer such questions, same way they won't ever answer "How much money you make?". It's their own business, literally. Let them dig the hole, they won't share their internal mistakes anyway. My guess they never thought it will cause any backlash, someone said "Hey, let's be up to date by moving to 4.0", some manager approved, and that's it, done deal. – Shadow The Princess Wizard Oct 8 at 16:44
  • 14
    @Shadow More than likely, that is what happened. My goal is to make clear that that is not acceptable, as there are legal implications of doing so. That's why I'm seeking counsel — there are statutory penalties for violating copyright, and I intend to obtain that in full. – jhpratt Oct 8 at 17:40
  • 14
    @Shadow, but it's not just their business. They are telling us we can use text/code from SO under a certain licence. If that's false we perhaps cannot use the content and could be sued for copyright issues. A false claim by a 3rd party (SO) is not a copyright defence for us. If any company is publishing information with redistribution rights, they need to be able to justify that they have authority to grant those rights if challenged. – Stuart Whitehouse Oct 8 at 20:05
  • 8
    @Stormblessed You don't think a company distributing your contributions illegally is a big deal? Suit yourself, I'm seeking the sizeable statutory damages. – jhpratt Oct 28 at 20:49
73
+250

Given the complete lack of a response after over three weeks, the answer is clear. It appears as if the answer is no, this change was not run by the legal department. There is no question Stack Exchange has seen this post, given it has a significant number of upvotes, has been present for over three weeks, and my multiple attempts at direct contact. Stack Exchange has nothing to lose by responding in the affirmative — it would effectively end any legal challenge if they could justify their change; apparently avoiding litigation is not in their interest, despite previous statements.

Per Creative Commons (who wrote the licenses!)

Upgrading from prior versions to 4.0

Existing content:

  • Who owns the rights?
    • If the contributors, then need permission to relicense. Without permission (via terms of use or otherwise), then that content remains under prior version.

Adaptations of existing content:

  • Who owns the rights to the original?
    • If the contributor, then can license new contributions to an adaptation under 4.0 but original contributions remain under prior version unless express permission to upgrade is obtained.

It is clear from this alone that Stack Exchange cannot release pre-existing content under the newer license without our permission.

Some people have made the argument that Stack Exchange's ToS allow relicensing. If that is the case, please show me what exact clause permits that. Per the ToS, I granted Stack Exchange the following permissions:

  • Access
  • Use
  • Process
  • Copy
  • Distribute
  • Export
  • Display
  • Commercially exploit

And on a "worldwide, royalty-free, non-exclusive basis pursuant to the Creative Commons licensing terms (CC-BY-SA)". Though the version is not explicitly mentioned, it is linked in the footer of that page to 3.0, and other content before the unilateral change also had 3.0 linked in the ToS. If Stack Exchange believes the "distribute" part of that list gives them the ability to relicense, please state so publicly in no uncertain terms.

Additionally, there was no notice via email of the license change, which did modify the ToS. The "last update" date still is not correct.

Stack Overflow reserves the right … to modify or replace these Public Network Terms … at any time by posting a notice on the public Network or by sending you notice via e-mail or by another appropriate means of electronic communication.

Is Stack Exchange considering the post of the license change to be a "notice on the public Network"? I know for a fact that Stack Exchange has the capabilities to have a banner notification, and there's also the standard inbox for notifications. Neither of these were used.

What if someone did not come to the network while the post was featured? They had no reason to believe anything changed, and the only solution that would have notified a person after the fact (an inbox notification) was not used. An email certainly would have sufficed, and I never received one myself.

The "notification" in the ToS is later clarified.

Unless otherwise specified in these Public Network Terms, all notices under these Public Network Terms will be in writing and will be deemed to have been duly given when received, … when receipt is electronically confirmed, if transmitted by facsimile or e-mail …

From the combination of these two clauses, it is not clear when the notification is considered "received". As such, unless there is an affirmative confirmation of such, it is effectively useless.

  • 5
    NB: I have posted this as a different answer despite the previous one being deleted, as it includes far more detail as to why I believe the change to be illegal. It is as much non-official as the other answer, so there is no reason to delete one but not the other. – jhpratt Oct 14 at 22:44
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    Just to be clear on ownership… Joel Spolsky is on record for having said "And the public resource, just so I am clear, all the content around the new Stack Exchange, just like Stack Overflow, is literally owned by the community. So it is under that Creative Commons license and we make data dumps available of it so that the people can contribute all that content are the community, and they have to own it." This unilateral relicensing makes a mockery of that deal. – 200_success Oct 15 at 3:41
  • 5
    IMO you need an answer from an actual copyright lawyer with real life litigation experience to resolve this. An amateur analysis of the situation isn't particularly convincing. – JonathanReez Supports Monica Oct 28 at 1:37
  • 4
    @JonathanReez This is pretty cut-and-dry. It's not like anyone is trying to interpret a complex or vague legal statute in an unusual situation. – The forest of Reinstate Monica Oct 28 at 2:39
  • 8
    @JonathanReez That's why I'm in contact with a licensed attorney. – jhpratt Oct 28 at 5:58
  • @TheforestofReinstateMonica there's another answer below claiming that it's "cut and dry" that SE was legally able to do it. I'm not sure how simple it really is. – JonathanReez Supports Monica Oct 28 at 6:40
  • 2
    @jhpratt do you want some gofundme help with legal fees? – Stop Harming Monica Oct 29 at 17:54
  • @StopHarmingMonica A few people have mentioned that. I'm honestly not sure. – jhpratt Oct 29 at 18:13
  • @jhpratt if it helps in clearing the legal situation please do start a gofundme campaign. I'd happily contribute! – Josef Nov 5 at 10:13
  • @StopHarmingMonica Just launched one. link. Share as you want, but I won't be making a post here on meta. – jhpratt Nov 7 at 22:32
  • 4
    @Josef Just launched one. link. Share as you want, but I won't be making a post here on meta. – jhpratt Nov 7 at 22:32
18

If things aren't moving quickly enough for you, consider sending a DMCA takedown notice instructing them to take down every question, answer, comment, and edit that they purport to distribute under a license you have not licensed it under. State that since they are not distributing it according to the terms of the appropriate licence, they can only be distributing it under the terms of the TOS, which do not permit SE to relicense the content or their users to reproduce it. State that you have a good faith belief that by purporting they are distributing your content under a license it does not have some of its users will commit copyright infringement and this SE is committing vicarious and contributory infringement.

This will cause then to have to make a choice quickly. The DMCA's protection from secondary liability may not even apply in this case, but it certainly won't if they don't remove the content expeditiously after receiving the notice, and they certainly won't be able to claim they weren't aware of the problem. They might also simply cure the problem by displaying the correct license.

The best thing is that this forces then to act quickly instead of going through a slow legal proceeding. You don't even need to be correct in a final analysis. You have a good faith belief that your rights are being violated, and this legal argument is certainly colorable.

  • Wouldn't it be better to send a C&D, rather than a DMCA which removes content? I would like my content (posted previous to the ToS update to which I have agreed to by continuing to use the site) to remain, but not under a license which I did not contribute it under. – The forest of Reinstate Monica Oct 28 at 3:00
  • 11
    The advantage of the takedown is that it carries real legal consequences if they don't respond immediately, but it does have potentially undesired consequences. Maybe you can split the difference and send a C&D letter that says it they don't cure the infringement within two weeks you will send them a DMCA takedown notice. I would check with a real lawyer about it. – rockwalrus-stop harming Monica Oct 28 at 3:47
  • 1
    If you're from the EU you can make a GDPR request first for a copy of all data linked to your account. – Stop Harming Monica Oct 28 at 10:52
  • 3
    @OrangeDog You don't even have to be from the EU. Stack Exchange honors GDPR data dump requests regardless of your location. I'm from the US and got my dump successfully a few days ago. – user307833 Oct 28 at 18:17
  • DMCA only applies for copyright violations and SE has a separate permission from all users to display their contributions on all SE websites, so you won't be able to claim copyright infringement. You would only be able to send a DMCA to someone other than SE for making use of your content, but even then you'd only be able to send a takedown notice for a use that violates CC SA 3.0, but doesn't violate CC SA 4.0 - and that would be very hard to find. – JonathanReez Supports Monica Oct 28 at 19:38
  • 1
    @JonathanReez: SE still has secondary liability for their user's acts of infringement, and at least in the Ninth Circuit, there is case law that the copyright owner doesn't even have to find a specific direct infringer for SE to be guilty of secondary infringement. – rockwalrus-stop harming Monica Oct 28 at 23:00
  • Sure, but that seems like hard legal battle if SE rejects your DMCA request. – JonathanReez Supports Monica Oct 28 at 23:14
  • 2
    @JonathanReez: If they reject the request, they lose any protection from secondary liability that the DMCA would have given them. It actually makes the legal battle easier. That doesn't mean that a legal battle is ever easy. – rockwalrus-stop harming Monica Oct 28 at 23:50
  • @Mego that's good, but they are not legally required to do so – Stop Harming Monica Oct 30 at 13:55
  • 1
    @StopHarmingMonica They kind of are. Unless they start requiring users to submit proof of EU citizenship with GDPR requests, they cannot afford to turn requests down, lest they accidentally turn down a genuine request from an EU citizen and have to pay huge fines. – user307833 Nov 1 at 1:19
6

My reply does not fit in a comment, so posting as an answer. Sorry if this is not appropriate.

I'm not a lawyer so take this with a grain of salt. However, I do have some experience regarding content rights from running a photo community, where this topic is even more important. I'll share my experience and take, and will leave it up to you to value it or not. Don't see it as advise, just information and food for thought.

Basically, I agree with @jhpratt.

That seemingly long list of rights SE is claiming on content is in fact the bare minimum for a site to display user-generated content in common and practical ways. It's a content usage license found everywhere in countless varieties. Translated into practical purposes, this is what it will allow:

  • Simply showing your content (in various ways)
  • To do so without expiration
  • Showing (parts of your content) on social channels or future first party products

The claim to do the above even after your explicit removal of content seems an aggressive claim, yet is highly common. This is typically in place to avoid integrity problems. As a simple example: in a forum thread, if any important participant's messages were deleted, it could render the entire thread useless as all context is gone.

It is a reasonable and practical claim to make for that purpose. Even in Europe, GDPR user data deletion requests do not oblige the site owner to delete the user's forum messages, at best they would be anonymized. At least this is the consensus I've read about many times, but don't quote me on it.

Nothing in the text suggests a claim to relicense. A claim to relicense has to be very explicit as it is an extreme and very uncommon claim to make. It is basically a full transfer of content ownership. If that was the intend, the legal claim could be a whole lot shorter: we take full ownership and claim unlimited control of your content.

Which is not the case, instead, specific claims are made. And the claims made are the same claims made at any user-generated content site. You cannot even run such a site without the above bare minimum claims.

The only hot word in the claims is "modify". Very likely this is for the purpose of displaying content in altered form or it could refer to moderation, your content being changed by others.

A far-fetched interpretation of "modify" could be that it allows for anything. This is extremely unlikely:

  • The wording is too vague to hold up in defense
  • As said, all other claims would be unneeded, as it would overrule them
  • It goes totally against earlier claims made (content is owned by community)

So no, SE does not seem to claim the right to relicense. They do seem to be taking that right though. I don't know enough about CC to know whether this is legal, but from what I read, probably not.

I suspect good intend though, which I consider important. Moving from CC3 to CC4 does not suggest a power move that is deeply in their self interest. As far as I know, it does not really give much additional control of your content, nor does this open up ways for SE to use content in ways most people would not expect. In fact, if you read what's new in CC4, it even gives slightly more control to content owners.

I cannot answer your original question (was it passed by lawyers?), but at face value, it does not seem a move that was well researched.

I conclude that you are likely right. The next question is at what cost do you want to be right? If such a move is technically not legal yet has done no actual harm to your rights nor has it benefited SE much, is it worth it to pursue the path you're on?

Imagine if after a long and costly personal journey you'd win. The consequence would be that SE cannot move to CC4, as it would need permission from every user ever. Therefore, all the improvements to CC4 would not be realized.

Where is the win? There is none. The best case scenario is a loss.

  • 6
    Note that my concern isn't with CC 4.0 per se, it's more about SE's unilateral relicensing. If they can get away with it here, who's to say they can't relicense to whatever else they want? – jhpratt Oct 29 at 4:09
  • @jhpratt Understood, it's an arrogant move yet without much consequence. Relicensing to something more restrictive is unlikely as it means a transfer of ownership, practically speaking. SE would be very unwise to even try that so I would not worry about that. Current situation is that you're right but will not win (a TOS update can fix this), yet even if you win, nothing is truly won other than making a point. Will leave it to you to consider if it's worth it. My take: let this be a big fat warning to SE to take licensing serious in the future, yet do not legally fight this now. – Ferdy Oct 29 at 13:20
  • 1
    @Ferfy A ToS update does nothing at this point, as they've been distributing it illegally for nearly two months. – jhpratt Oct 29 at 18:11
  • @jhpratt Don't know about that, I'll take your word for it. I do think that when in trouble, they can email all users about a new TOS that is opt-out. So when you do nothing, you approve the update. I cannot judge as to whether this is legal but I assume it is as it seems a common practice. – Ferdy Oct 29 at 19:20
  • And if SE can get away with it here, then any other company can also get away with changing license terms. – Stop Harming Monica Oct 30 at 13:57
6

More of an addendum:

I appreciate your efforts to acquire clarity regarding this topic, and if a lawsuit is the only way to get SE Inc. to respond, then be it.

In order to support your efforts:

  • That small header on your question about the GoFundMe ... probably doesn't draw much attention.
  • Maybe another question can help with that.
  • Beyond that, I agree with some of the comments on that new question: that GoFundMe needs more details. The exact scope/goal, what happens to the money in case the goal is reached, but the money can't be spend as planned, ... such things.
  • 2
    It would also be interesting to know how OP is planning to sue SE with just a $1000. Elsewhere it was mentioned that a lawyer would be willing to take up the case for free, hoping for a payout, but then why is a GoFundMe needed at all? – JonathanReez Supports Monica 2 days ago
4

This has been answered elsewhere, but the ToS includes two license clauses, one of which is CC-BY-SA, and the other is this:

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.

Retrieved from https://web.archive.org/web/20131014025738/http://stackexchange.com/legal, and there's a similar clause in the current version.

More broadly, of course SE isn't going to make public statements about this kind of thing on demand, that not only encourages more noise by people quibbling over things, but if it's an official statement it can have concrete legal ramifications.

Regarding copyright law, this is the section of the US copyright code that establishes the "rights"

Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pan-tomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copy-righted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work pub-licly by means of a digital audio transmission.

Retrieved from https://www.copyright.gov/title17/title17.pdf

As far as I can tell, SE has granted themselves all pertinent rights via the above ToS, so SE possesses those rights via an unlimited license. Copyright law doesn't say anything specific about this situation because a license is handled by contract law, which is it's own thing. But if you have a right, you can make a contract that further grants access to the work in question that exercises that right.

  • 10
    That's irrelevant to this situation. Nowhere in that quoted block is relicensing mentioned. If they said CC BY-SA 3.0 or any later version of the license, there would be no issue. They didn't do that. – jhpratt Oct 9 at 0:46
  • 3
    Re-licensing isn't a distinct right under copyright, they granted themselves the full spectrum of rights, which implicitly allows them to distribute that content under whatever license they like. – Kevin Granade Oct 9 at 0:51
  • 14
    They gave themselves specific rights: use, copy, cache, publish, display, distribute, modify, create derivative works, and store. That's not the "full spectrum". If they had the rights to distribute under whatever they wanted, why would they need to include the CC BY-SA 3.0 in the ToS? – jhpratt Oct 9 at 0:53
  • 6
    So that folks who reproduce said content know what licence and conditions are expected of them? – Journeyman Geek Oct 9 at 0:57
  • 5
    @JourneymanGeek My point is that if they can distribute as they wish, they don't need to include a secondary license in the ToS, since they can license at will. After all, they (supposedly) have the ability to do that, yes? – jhpratt Oct 9 at 0:58
  • 14
    jhpratt is correct. Dual licensing is a thing, but the one you quote is not a god clause. It doesn't involve giving away statutory copyrights. First: we have licensed our contributions under CC-BY-SA 2.5 or 3.0 (depending on timeframe). Second, we have also (via this ToS) licensed the contributions to SO for the listed purposes, none of which is exchanging the CC-BY-SA 2.5 licence for 3.0 or 4.0. – Lightness Races with Monica Oct 9 at 1:02
  • 7
    Interestingly, though, this clause would protect SO from having to nuke all the content if they're found in contempt of the CC licences, because it would leave them still with the right to use the content to provide the Services (i.e. SO itself) – Lightness Races with Monica Oct 9 at 1:04
  • 5
    It literally does, I don't see how you can come to the conclusion that, "I grant SE the perpetual and irrevocable right and license to distribute such Subscriber Content and to allow others to do so in any medium now known or hereinafter developed" doesn't mean "distribute however I want". – Kevin Granade Oct 9 at 1:39
  • 8
    Any medium != any license – jhpratt Oct 9 at 4:09
  • 3
    Regardless whether you are are correct, this is not an answer to the question. – Stop Harming Monica Oct 9 at 11:19
  • 2
    The poster has several invalid premises which render the question moot and the answer adresses those misunderstandings. – Kevin Granade Oct 9 at 14:47
  • 1
    @KevinGranade No it doesn't. You have not showed me how I grant all rights when I post. The ToS is clear in that the list is explicit. If I have invalid premises, by all means address them one by one. – jhpratt Oct 9 at 16:52
  • 4
    @jhpratt: IANAL, but the "allow others to do so" part does seem to constitute (limited) permission for SE to sublicense the content. That said, the clause grants this permission (and the others listed in it) only "in order to provide the Services". Arguably, a reasonable reading of this phrase only covers things like allowing a CDN to cache the SE websites, not relicensing all of the Subscriber Content under a new CC license version. Of course, the clause is vague enough that a good lawyer could surely also argue the opposite. – Ilmari Karonen Oct 10 at 12:00
  • 2
    Now that I don't trust the corporation (for reasons that they helpfully reminded me of just now), this sounds like it might be a way to lock up the content for themselves. They have a licence to reproduce it as much as they like, but since the CC licence history is muddled, nobody else can safely reproduce it. One of the values of a free licence is that users can fork a project with bad leadership, but no legal department is going to want to touch this without knowing what is covered under what licence. While SE is free and clear under the additional licence in the ToS. – Toby Bartels Oct 14 at 7:59
  • 3
    Down vote for this part of the answer, which is risible: More broadly, of course SE isn't going to make public statements about this kind of thing on demand, that not only encourages more noise by people quibbling over things, but if it's an official statement it can have concrete legal ramifications. SE SHOULD make public statements, for the reason that SE's refusal to do so has fomented far more "noise by people quibbling over things" due to ambiguity from the current state of affairs. SE is NOT non-profit, i.e. SE has the means for access to legal counsel. – Ellie Kesselman Oct 22 at 5:20

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