Was the retroactive change to CC BY-SA 4.0 approved by Stack Exchange's lawyers?

Question

Update: I have started a GoFundMe in an attempt to have a court or arbitrator settle this. It has raised a decent amount, but more will be necessary to retain counsel.

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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.

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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.

Answer 1

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.

Answer 2

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.

Answer 3

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.

Answer 4

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.

Answer 5

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/https://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.