441

We’d like to provide you with an update to our transition to version 4.0 of the CC BY-SA license. We realize that this is something that you care deeply about, and that our response to your concerns is long overdue. We’d like to thank all of you for your patience while we worked on a plan forward that would address your concerns.

The change to CC BY-SA 4.0 occurred on 2018-05-02 (May 2, 2018) as part of our ToS update. It was updated as part of a process that was not led by the community team and there was an internal disconnect at the time of the release.

Our move forward plan is to switch to a licensing scheme where:

  • Content contributed before 2018-05-02 (UTC) is distributed under the terms of CC BY-SA 3.0

  • Content contributed on or after 2018-05-02 (UTC) is distributed under the terms of CC BY-SA 4.0

This will correct any inconsistencies with the prevailing and advertised licenses.

We’re working on ways we can make licensing details easily discoverable on post timelines as well as API calls, and we’ll share ideas as soon as they’re coherent enough to communicate. We anticipate having the new license labeling scheme ready by April 2020 and look forward to posting updates on this as we have them.

We are still investigating the question of substantial edits to content licensed under CC BY-SA 3.0 now that we’ve switched to version 4.0. For the time being, pending final clarification on this, content will be listed with a license based on its creation date. This would mean if a question or answer was created under CC BY-SA 3.0, revisions to it made today would also be released under CC BY-SA 3.0, not 4.0.

Your feedback made it clear that your concerns were mostly about the way the change was handled, and not so much about any specific version of the CC BY-SA license. We’re looking at ways that we, as the custodians of your contributions, can make decisions about the license quickly, in a transparent and informative way, to protect your content as the world’s legal landscape changes. Our network of sites has grown to the point where it’s impossible for us to obtain permission from all contributors if a further update to the license becomes necessary and we may find ourselves in a position where we must act quickly. If such a situation arises, and we need to update to the most recent version of CC BY-SA, we will make sure to let you know. It’s our responsibility to ensure that your contributions remain open and accessible to the world, in the same giving spirit that you provided them.

Thank you, again, for your patience. We’re happy to hear any feedback you might have. Please understand that we’re unable to provide any answers to questions about licensing that could possibly be interpreted as us giving legal advice.

Update from Yaakov: Please see Creative Commons Licensing UI and Data Updates for details on UI updates related to this issue, as well as answers to all open questions left over from this post.

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    Splitting the licensing in this way looks like the most reasonable solution, thank you for that. In the same vein, should a further update to the license become necessary and you find yourselves in a position where you must act quickly, then only applying the new license to new content strikes me as the right thing to do. – Frédéric Hamidi Mar 3 at 15:30
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    I think I am not fully aware of the sequence of events, but didn't the announcement of the change to CC BY-SA 4.0 happen in Sept. 2019? What about the content between May 2018 and Sept. 2019? – Doc Brown Mar 3 at 15:32
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    Could you provide an example of what makes changing the license so time-sensitive? Lets assume I agree that Version 4 is better than Version 3 and Version 5 will be even greater, what scenario could make a switch be on a specific deadline, needed "quickly"? – nvoigt Mar 3 at 15:38
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    @FrédéricHamidi: I am pretty sure you are right, but Tim's post from Sept 2019 gives me a very different impression, starting with the words "Effective today, all [...] Content [...] will be available under the terms of version 4.0". – Doc Brown Mar 3 at 15:40
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    @DocBrown The ToS changed in May 2018, but the licensing blurb at the bottom of each page on the site was not updated then, and this has led to some confusion... – PM 2Ring Mar 3 at 15:42
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    Examples of why we'd change surround the legal landscape of the world. Either something happens with how the license is tested in a court of law, or legislation in certain countries change to require additional clarification in the license. It's all speculative at this point. These things tend to seem really unlikely to happen until they suddenly happen. – Tim Post Mar 3 at 15:53
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    @DocBrown A brief rundown of the advantages in 4.0 are buried in this answer I wrote to the original announcement. Had communication worked internally, that list would have been what we used to kick off a discussion about upgrading prior to the ToS update going out. – Tim Post Mar 3 at 15:59
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    Thank you. Stepping back from claiming that old content was relicensed solves both legal problems and many of the community's fears (“I am altering the license. Pray I don't alter it any further…”). Note that if you roll out per-post license indicators (which is the only reasonable solution) you also have a sane path to supporting MIT-licensed code snippets on SO. – amon Mar 3 at 17:18
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    In fact, the new TOS contains a hyperlink that refers to the 4.0 license. However, the TOS text still does not contain a mention of the version, and the 3.0 license was written in the footer until September 5. Do hyperlinks in TOS have legal force? How legitimate is the mismatch between the versions in this hyperlink and in the footer? I have a feeling that I was deceived. – andreymal Mar 3 at 17:30
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    @Zoe The plan right now is to make it visible in the post timeline, so folks don't have to constantly calculate it if there's a question about which one applies. There's also the API returns we have to handle, and some other edges too. I don't have 100% of all details worked out yet, but the gist of it is to make it extremely convenient anywhere folks might need to find it. – Tim Post Mar 3 at 18:01
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    @TimPost I'm not sure to what extent this change in company behavior is due to Teresa Dietrich or for other reasons. Regardless of why, though, I appreciate this new attitude and hope it continues in the various ways the company interacts with the community, not only on this Meta site but in all of the other various communication channels. – John Omielan Mar 3 at 18:49
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    Can you give an example regarding future changes to the license where SO thinks it "must act quickly"? Apropos of that, "make decisions about the license quickly" the point of a contract, license, or agreement is to obviate the need to make decisions quickly. I would urge the company to not think in terms of "making decisions quickly" and rather consider it in terms of, perhaps quickly, "requesting input/consent from the other party to the license" as you're legally required to do. – TylerH Mar 3 at 20:00
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    @user8397947 Why the complaining? They're giving us what we want here. Personally, if someone I'm working with complains when I don't do what they want and then continues to complain even when I do, I tend not to be too motivated to be helpful to that person in the future. Just be happy with the fact that there's a resolution (on this issue at least). – EJoshuaS - Reinstate Monica Mar 4 at 1:21
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    Tim, you will want to notice the comment by @andreymal above and get it run through your counsel soon. The normal treatment of such mismatches by the courts is that what the ToS said inline holds, and what they referenced is just an informational hyperlink which wasn't part of ToS themselves. In this case, I am not sure what your counsel will think after looking at the full situation, but the matter deserves a look and ideally a company statement why this or that version applied during that period. – Jirka Hanika Mar 4 at 12:55
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    With regard to what @JirkaHanika said, I still have a little money from crowdfunding. I was originally going to file next week, but I can out that off a bit now that there's some communication. If things quiet down again for an extended period, the legal option is still open to force a binding decision on a number of topics. – jhpratt Mar 4 at 13:43

20 Answers 20

361

First, thank you very much for finally giving a comprehensive update on this topic. It has been neglected far too long, from the point of outside observers. Unfortunately ...

Thank you, again, for your patience

Err, sorry. That sentence really stirs the wrong pot. Most users around here who were concerned about this specific topic weren't waiting patiently. Instead, these people were frustrated by days going by, weeks going by, months going by ... and no observable reaction to the many requests for clarification.

What you call patience, I call: the sheer imbalance of power. The community wanted real answers for months, but since we are basically powerless here, there was just an empty void. We just couldn't do anything. Polite requests didn't work. Harsh statements didn't work. GoFundMe campaigns pushing for the "legal option" didn't work. So, just to make that really clear: we weren't waiting patiently. We tried a ton of things, and nothing caused a reasonable response.

Thus, I wish that one sentence had said:

We not only understand that our response is long overdue, but we are also deeply sorry about this delay, and it won't happen again.

or something like that instead!

You see, in the end, the licence is the only thing around here that (somehow) binds SE Inc. to uphold the rights of us users, regarding our content. It might feel like a insignificant detail to many, but for those who care, it is essential. It is the only "written contract" between you and us. Neglecting issues around that "contract" for months should be a no-go.

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    I can assure you that it's not going to happen again. I can not, in my wildest imagination, conceive of a storm so perfect that something like this could transpire again. There was a great deal of chaos behind the scenes. And while you've been extremely charitable with how you've worded this, I honestly feel the hurt, and I'm sorry for it. I'm just glad you're still here to say it, and thanks for staying. – Tim Post Mar 3 at 15:49
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    "I can not, in my wildest imagination, conceive of a storm so perfect that something like this could transpire again." TBH, I could not, in my wildest imagination, conceive of a storm so perfect that something like this could have transpired once. "It's all speculative at this point." x "I can assure you that it's not going to happen again" x "we may find ourselves in a position where we must act quickly" doesn't quite seem like there would be an overlap to all these three. – Piskvor left the building Mar 3 at 16:14
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    In other words, here's how this looked externally: "We do what we want. [...several months of silence...] And for now we do not want to repeat this, ever [subject to change at our leisure, just look how much any piece of paper has stopped us before]." – Piskvor left the building Mar 3 at 16:18
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    @Piskvorleftthebuilding To be fair, there have been substantial staffing changes since then (and I'm thinking of the leadership here). I can't imagine the timing isn't unrelated. – Asteroids With Wings Mar 3 at 18:28
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    ...or is unrelated. Whatever. Too many negatives 🤣 – Asteroids With Wings Mar 3 at 18:34
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    @lucid, this is a story we will have to make up for ourselves, because there is no chance in Hades that further details will leak out of SE HQ, especially at this juncture when potential is going up and faith is being restored. Tim has already said a lot. – Frédéric Hamidi Mar 3 at 19:41
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    'Thank you for your patience' is a well-established standard way in business to mention that something took a long time in a polite way. It shouldn't be taken literally. – TylerH Mar 3 at 19:55
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    +1 for "What you call patience, I call: the sheer imbalance of power." Forced patience is no patience at all. – Mason Wheeler Mar 3 at 20:03
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    @AsteroidsWithWings: staff changes...yeah. There have been...*staff changes*. Especially this past January. What does that have to do with anything? – Piskvor left the building Mar 3 at 20:03
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    Have you changed lawyers since that time @TimPost? If you haven't, your confidence that problems of this magnitude couldn't happen again seems misplaced. – curiousdannii Mar 3 at 21:53
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    @Piskvorleftthebuilding There is a brand new Head of Product and Community, reporting directly to the CEO, taking steps to fix last year's wrongs and build new beginnings. How does that not have everything to do with everything? Please don't talk to me like that. – Asteroids With Wings Mar 3 at 22:53
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    taLking steps, so far. Actual steps remain to be seen. – Piskvor left the building Mar 4 at 0:34
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    @Piskvorleftthebuilding I am not sure what you want to achieve. This very Meta question is an actual step. Why would SE take more actual steps if people are going to keep complaining no matter what? Deescalation is about not dwelling in the past and looking at the future. If you think that past actions completely and irreparably destroyed trust, then why are you still posting here? – wimi Mar 4 at 8:11
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    @wimi People complaining about people complaining is also not really nice. I think that some people are just quicker in forgiving than others and others may need more time before they say thank you. Doesn't mean it's less heartfelt, just that the trust level threshold to be reached is higher. I wouldn't think worse of those still not convinced that the company has changed. We leave the thank you messages here, so we can also leave the complaints here. Tim Post and all the other community managers are long enough in the business to gauge the feedback professionally. – Trilarion Mar 4 at 12:31
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    @TimPost Thanks for your honesty, it's great to once more read human things posted in your name that you clearly wrote and meant. Just worth saying because it's easy to forget from inside a crazy situation: none of us have any clue what happened internally, or even that anything was happening. All we know is what we see: a lot of bizarre, heavy-handed actions, a lot of silence or deflective corporate-speak, and now, some welcome humanity and nice words, but, the same CxOs and directors responsible (?) cheerfully carrying on like nothing happened. It sure looks like it'll happen again. – user56reinstatemonica8 Mar 4 at 22:50
162

I've been in lurk-only mode for a number of weeks (okay, fine, I've been sock-puppeteering), but logged back in just to say this:

Thank you.

This is great. It's all we wanted. It's absolutely fundamental to licenses (and to contracts in general) that one party neither feels entitled to, nor purports to exercise, the power to alter said licence (or contract) singlehandedly, regardless of what that change is nor how good they think the change is. It's, like, the entire point of licences (and contracts), and it sounds like the situation where Stack Overflow was doing that is now at an end. Your plan sounds, well, sound.

In keeping with my "retirement", I'll leave other meta commentary surrounding this topic to others. But since my content remains on the site, I did feel the need to express my pleasure that this is finally being resolved.

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    You are welcome. We appreciate your feedback. I wish you all the best while on your "retirement", and would be the first to welcome you back if you get sick of the sock-puppeteering. – Yaakov Ellis Mar 4 at 11:35
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Did the change really happen on May 2, 2018 as part of an ToS update?

In A new (2018) update to our Terms of Service is here, a change regarding the license was not announced. Looking at the current terms of service, a version of the CC BY-SA isn't mentioned. The change was announced in September 2019. I would like to see additional details/clarification how a license version changed without really mentioning it. How did it work?

Comment by Yaakov Ellis: "..2018-5-2 ToS linked to v4 of the CC license instead of v3.." The hyperlink may have made all the difference. That was not very obvious.

What about the change from CC BY-SA 2.5 to 3.0 in August 2010 then? Wouldn't that also require a similar treatment?

The concern in the community was that the company is not allowed to re-license the content. The current solution seems to at least not contradict this. However, the switch from CC BY-SA 2.5 to 3.0 in August 2010 seems to still contradict it. Was is legal to do that back then? Or would the old content from before August 2010 require a similar treatment?

Comment by Yaakov Ellis: "we are looking [..] to show v2.5 for posts predating this change but cannot commit to it yet" Sounds promising.

What really is the license of editing content from before May 2, 2018? Why can the company simply decide that it stays with the old license, even though it happens after May 2, 2018?

It seems that edits to the old content made under the new ToS shall for the time being remain with CC BY-SA 3.0. Is this possible under the current ToS? Or would the current ToS require everyone to contribute everything under CC BY-SA 4.0? It looks as if the company thinks it can simply decide what license a current contribution falls under. Is this observation right?

It's my understanding that CC is not backwards compatible, i.e. you cannot combine CC BY-SA 3.0 and 4.0 work under 3.0. What licensing possibilities are legally left for editing content from before May 2, 2018?

Comment by Yaakov Ellis: "..we are still investigating what the classification for these should be, and in the meantime are not going to be indicating a separate license for these edits.." This sounds like more clarification is needed on that subject. Basically currently the legal state of these edits is unclear.

Did the company give proper attribution to the content created before May 2, 2018 in the time between September 5, 2019 and March 3, 2020?

It seems that the content created before May 2, 2018 had always CC BY-SA 3.0 license, which would require attribution but CC BY-SA 3.0 wasn't mentioned during that period anywhere on the site. Was this a violation of the license of the older content?

Summary

I would be grateful for even more clarifications.

The comments by Yaakov Ellis were helpful but they also kind of highlight that there are still some legal issues to be figured out. I hope they get figured out in a timely fashion.


My personal take on all of this as of March 5 2020

The crucial license information was kind of hidden in a hyperlink in the ToS, the site footer was mostly just decoration. All content contributed before August 2010 is licensed CC BY-SA 2.5, all content contributed between August 2010 and May 2018 is licensed CC BY-SA 3.0 and all content contributed since then is CC BY-SA 4.0. Based on that everyone can figure out the license of a particular Q&A by looking at the time stamps.

The company including Jeff Atwood got it wrong twice, once in August 2010 and once in September 2019, where they gave the impression that they could re-license older content. With this Q&A here, they rectified the error and promised to help people determining the correct license of a piece of content as conveniently as possible. The footer still needs to be rectified too, there are currently three different licenses for the content. Thankfully, all these CC BY-SA licenses allow combining them and create adaptations and the adaptations need to be licensed under the same or a higher version of CC BY-SA, which we/the company did.

However, that relies on the order in time in which the modifications are applied, the license version can only ever increase or stay constant in the adaptations. This might kill the one button to automatically migrate the license version of all my content idea.

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    Does somebody know the different URLs of the ToS over the years? I would like to compare them. – Trilarion Mar 3 at 20:41
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    It looks like on May 22, 2018 (the first Wayback Machine snapshot of the TOS page), the TOS linked to Creative Commons 4.0 in the second-last paragraph of section 6. However, the footer stated all content was licensed under CC 3.0. The footer was only updated on September 5th 2019, coinciding with Tim's meta post at thee time. – doppelgreener Mar 3 at 21:47
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    You can find the older TOS by exploring Wayback Machine snapshots. On April 30 the TOS was still at stackexchange.com/legal (which I found by looking at a snapshot for the Stack Overflow homepage); here's a snapshot: web.archive.org/web/20180430233828/https://stackexchange.com/…. Wayback Machine has snapshots of this page dating back as far as early 2011. The TOS at that location never mentioned a specific version at that time either (in 2011 or 2018), but still linked to a version of the license just like the current one does. – doppelgreener Mar 3 at 21:50
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    The confusing over the license versions was raised for the 2 May 2018 TOS change, but there was no official response for some time. – curiousdannii Mar 3 at 21:52
  • @doppelgreener Thanks. Does anyone know where the ToS were before 2011? – Trilarion Mar 3 at 21:54
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    @Trilarion I believe there simply was not a TOS prior to 2011, e.g. someone talks here about not being able to find one in 2009: meta.stackexchange.com/q/13976/152515 (and someone else confirms it doesn't exist) – doppelgreener Mar 3 at 22:02
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    I can't really believe there wasn't a ToS prior to 2011. There must have been some kind of license agreement even then?? – Trilarion Mar 3 at 23:02
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    The 2018-5-2 ToS linked to v4 of the CC license instead of v3. As to the change from 2.5 to 3, we are looking into the possibility of adding these changes to post timelines as well (to show v2.5 for posts predating this change), but cannot commit to it yet. – Yaakov Ellis Mar 4 at 11:30
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    As far as the license for edits to v3 posts after v4 is in effect — as Tim wrote above — we are still investigating what the classification for these should be, and in the meantime are not going to be indicating a separate license for these edits. As far as "why can the company decide…" and "did the company give proper attribution…", I can't comment on those at this time, as we cannot give anything that can be construed as legal advice in this matter. – Yaakov Ellis Mar 4 at 11:34
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    @Trilarion as I said, and as Tim wrote above, we know that we have more things to decide here (some of which can only be done through our counsel and some of which require more research). But we did not want to wait on everything to have an answer before releasing the update above, and proceeding with the actions that we know we can make now. So yes, we see the urgency. We are continuing to work on this internally. But I cannot commit to a date at this point to provide an answer on the outstanding questions. – Yaakov Ellis Mar 4 at 12:17
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    @YaakovEllis I find the claim that the change happened in May 2018 to be disingenuous (and a bit of a slap in the face, TBH). Ultimately, the truth of the claim would have to be decided in court by a judge deciding that a user reading the >2018-05 ToS could reasonably have been expected to notice the change in the direction of a link, and that this change takes precedence over the version number noted in the footer. Do you, and your counsel, really think that that would hold up? – E.P. Mar 6 at 15:20
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    Note also that the 3.0 license is mentioned in the very footer of the ToS that's being used to argue for the 2018 dateline. This could quite conceivably make a court decide that the document is ambiguous and cannot be used for this purpose. – E.P. Mar 6 at 15:22
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    So, with that in mind: why, why oh why, insist on stretching the 4.0 line back to 2018 instead of the 2019 announcement? You already have mixed-license content, the only thing that changes is what date is used to separate what licenses. If the idea is to put the legal foundation of the agreement with the content-owner community on a solid footing, why rely on this type of shaky interpretation, and what is the gain from doing so? – E.P. Mar 6 at 15:25
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    @E.P. I don't know why the company decided the way they did, but one could easily argue that the other interpretation (CC BY-SA 3.0 until September 2019) is equally shaky. By not updating the footer in line with the ToS text they made a mistake and are in trouble either way. Now they have to decide for the most legal way out. I guess their lawyer advised them for this solution. A court decision might be much more solid, but also much more expensive, at least for us. – Trilarion Mar 6 at 16:27
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    @Trilarion I find the site going for years without a formal ToS unsurprising in the least. Making websites for other people it's a boring thing that customers (who aren't big enough to have a legal team) at best don't want to be bothered with stopping whatever important stuff they're doing to create one. – Dan Is Fiddling By Firelight Mar 6 at 22:12
81

Thank you for finally acknowledging that there were serious issues with your approach to licensing our content. Explicitly marking the license of each post is messy, but the best approach.

However, two major concerns and one minor remain:

  1. If SE agrees that it didn't have the right to change the license of posts contributed under 3.0 to 4.0, then surely the same legal arguments apply to the 2.5 to 3.0 change. This apparently happened on 8 April 2011. Whatever technical solution ends up being implemented should also be capable of showing those really old posts as CC BY-SA 2.5.

  2. Please fix the page footers to remove the "attribution required" link, as it violates the CC trademarks and was apparently deliberately removed from the TOS.

  3. Currently the version number is not explicitly mentioned in the TOS, it is only revealed in the link to the license. Please explicitly add the version number to the text of the TOS each time you mention the CC BY-SA license. You should also consider changing it to say "4.0 or later", although note that that would add another epoch to the licensing history, as posts from between 2 May 2018 and whenever the TOS was updated could only be 4.0. Please also change the text of the TOS to say "CC BY-SA" rather than "CC-BY-SA".

Has there been an internal review into how all these mistakes happened? Have you changed lawyers since then? Because any lawyer worth their salt should know what an integration clause is and should never have approved the old TOS including SE's bespoke "attribution required" rules. Competent lawyers would have told you that you can't upgrade people's posts from the CC BY-SA 3.0 to 4.0 license without their express permission. These are not complicated legal questions.

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    List item 2 is new to me. Looks like we have quite a backlog. – Frédéric Hamidi Mar 3 at 21:45
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    @FrédéricHamidi Only seven years new. – curiousdannii Mar 3 at 21:45
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    Head Desk – Frédéric Hamidi Mar 3 at 21:47
  • From a quick reading of CC changes, 4.0 allows relicensing under future versions (which was not explicit under previous versions) - would this apply for the Stack, or only for those reusing Stack content elsewhere? ie, when 5.0 comes out, could all the 4.0 content be automatically marked as 5.0 without issues? – Adeptus Mar 4 at 6:55
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    @Adeptus I'm pretty sure it's the same as for the earlier versions: you can share the original work under its original license but derivative works under the license, a later version of the same license, or a compatible license. – curiousdannii Mar 4 at 6:59
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    We are considering both 1 and 2 for our upcoming updates (or the second round of updates). As far as changing the ToS to include a version number (as well as language like "…or later"): updates of this sort to the ToS are definitely on our list of things to attend to. – Yaakov Ellis Mar 4 at 11:26
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    Yes, there has been an internal review into how these mistakes happened. However, at this time we can't give any more details than was given above. Nor can I speak publicly about which employee did what, and when, and how. Suffice it to say: we definitely regret the way in which this happened, as well as the accompanying internal and external communication failures that contributed to the event itself as well as to our delay in responding. – Yaakov Ellis Mar 4 at 11:27
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    @YaakovEllis Thank you. :) – curiousdannii Mar 4 at 11:39
65

Thank you to everyone that worked on this.

For the first time in months I feel optimistic about Stack Exchange's future. I hadn't realized how much I missed that feeling.

Yes, the licensing split isn't a perfect solution. And yes, there are concerns that need to be addressed. But I can unequivocally say it feels like the community relationship is moving in a positive direction.

So for now, I'll put aside the usual meta cynicism to just say, thank you.

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    You are welcome. We really appreciate your appreciation! – Yaakov Ellis Mar 4 at 11:21
64

As the person who largely started the whole discussion around licensing, I have a few questions.

  1. Why did it take just shy of six months to get any answer? Not even a "we're looking into it" in six months. I know I had sent a number of emails and contact requests both publicly and privately (even to the company's lawyers). I imagine someone else did as well.

  2. As others have mentioned, between May 2018 and September 2019, the footer still indicated 3.0. For anyone that joined between these dates, who is to say they were aware of the "correct" license they were contributing under, given a version was not (and to this day is not) explicitly stated in the Terms of Service? What a hyperlink leads to may be sufficient, but that's a very fine line.

  3. Are you certain that Stack Exchange is still allowed to distribute old content under a 3.0 license? Under CC BY-SA 3.0, any violations terminate your CC license (and therefore your ability to distribute it as such) immediately. You unquestionably have the right to distribute it, as you have a non-exclusive license per the ToS; we're talking about a secondary license in this case.

  4. What influence, if any, did Stack Exchange's new Chief Counsel (or whatever the proper title is; I can't find it right now) have on this final decision? Was it run by her and/or the company's top attorney(s)?

  5. Do you regret this situation happened, or just how it unfolded? What is your process going forward if it is decided that the license should be changed? Will the community be consulted beforehand?

I look forward to a complete and thorough response, ideally a bit sooner than six months from now.


#3 may tread the line of legal advice, so it's understandable if you can't answer it.


Given the number of days since the first "response", it looks like Stack Exchange is still stuck in its old ways. No response to most of the issues I raised will be given, apparently. I've still got a GoFundMe open — it's the only way to force their hand. I will file next week more than likely, assuming no response is provided.

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    "Was it run by her and/or the company's top attorney(s)?" On one hand I would assume that all matters regarding the content license are run by their attorney(s), but on the other hand, the announcement of the May 2018 ToS change doesn't mention the license change even once, so there may have been at least an internal communication problem and that was bad for the users who did not receive enough information. An announcement of a ToS change should ideally include all relevant changes in a generally understandable language. – Trilarion Mar 4 at 9:28
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    There were notices given that we have been working on it (see Aaron Halls transcript of his meeting with Prashanth as well as Teresa's post two weeks ago). That said, there were definitely some pretty significant internal communications failures that led to this scenario in the first place, and in our taking so long to respond to it. We definitely regret that things happen the way that they did. The Chief Counsel has definitely been involved in the formulation of the post above. – Yaakov Ellis Mar 4 at 11:09
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    I can't answer 2 and 3 because they do relate to legal advice. Moving forward, we are establishing very clear internal processes for the review of any significant public communications by SME's an inside the company (and outside, if appropriate), as well as CMs and other relevant parties. This process will include moderators in the review process as well. (We hope to post more details soon on these processes). – Yaakov Ellis Mar 4 at 11:14
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    So as it stands, Stack Exchange still may not have the right to distribute the content as CC BY-SA 3.0, because it may have been revoked the instant you purported to distribute it under 4.0. That's far more of an issue than you realize, even if you're not able to answer it personally. I wouldn't mind hearing what the company's attorneys have to say in that regard. – jhpratt Mar 4 at 13:32
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    And also, I don't think a single person posting a transcript really counts as "notice". It was still months before that happened, and there was never a response on any posts solely relating to licensing. The "internal processes" should be shared publicly to ensure this never happens again. – jhpratt Mar 4 at 13:34
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    @jhprattGOFUNDMERELICENSING While SE definitely violated the 3.0 license as you explain, I'm not convinced dwelling on this point is helpful or relevant. (1) Even if the CC license terminates they can still distribute per the ToS fallback license. That sucks more for downstream users as they can no longer enjoy the CC license for content received via SE, but doesn't noticeably affect SE. (2) One argument SE could have made is that they did have the right per the ToS to unilaterally relicense content to 4.0. If so, they'd be a licensor not licensee and would be unaffected by termination. – amon Mar 4 at 13:45
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    @amon Yes, they unquestionably have the right to distribute it. However, they cannot purport it to be under a license it is not. That opens them up to secondary liability. – jhpratt Mar 4 at 14:44
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    @amon For some time there was apparently no TOS at all. And it's not clear that any license granted by the TOS is enforceable, since users are not forced to accept the TOS to create an account or continue to use the site when the TOS changes. All I saw last year was a dismissible banner mentioning TOS changes. My main account never even saw that banner. IANAL, but IMNSHO, SE is on very thin ice with regard to their ability to distribute their entire history of content. – StackOverthrow Mar 4 at 21:57
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    @amon not asking a question because the answer would suck for downstream users is not a good approach for legal issues IMO. – Josef says Reinstate Monica Mar 5 at 12:14
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    @YaakovEllis Will an answer be provided with regard to why it took ~5 months to get a "response", if you're willing to call it that? (4) and (5) are also very important points that people deserve to know the answer to. – jhpratt Mar 5 at 23:59
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    @jhprattGOFUNDMERELICENSING: You're wondering what the attorneys have to say. I can make an educated guess; as long as nobody complains formally there is no need to even have an opinion on the matter. I mean that literally. This is civil law; in the absence of a dispute no dispute is assumed. And parties to a dispute do not need to acknowledge the existence of such a dispute to others. To understand the importance of this, observe that the CC license is important to redistribution. Defining the exact parties to a case will be an issue on its own, and SO is best off by not trying to do that. – MSalters - reinstate Monica Mar 10 at 16:05
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    @jhprattGOFUNDMERELICENSING Stack Exchange may have violated their abillity to use the content under the CC BY-SA 3.0 terms, but the content is unquestionably still licensed under those terms as the licensor is the original content producer (individual users)--SE just facilitates the licensing. That being the case, it would not seem to be inappropriate to continue to display the fact that it is licensed under CC BY-SA 3.0 as that is relevant information for others wishing to use it. If it is necessary to specify under what terms the content is distributed that could be indicated elsewhere. – called2voyage Mar 10 at 17:05
  • IANAL, but it seems to me that indeed, as @called2voyage notes, paragraph 7(a) (and 8(a) and 8(b)) of CC-By-SA 3.0 should protect downstream users regardless of whether SE's license was terminated or not. In particular, paragraph 7(a) says that section 8 survives termination, so downstream users should still continue to receive a valid license from the original author(s) even if they received the work from SE after SE's license was terminated. – Ilmari Karonen Mar 11 at 13:32
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    @jhprattGOFUNDMERELICENSING, something to consider if/when you are filing a suit: section 8(e) of the CC BY-SA 3.0 seems to be incompatible with the additional license that SEInc. wants as part of their TOS. – Bart van Ingen Schenau Mar 11 at 16:05
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    … I do admit that, as a layperson, it's not clear to me whether and to what extent the paragraphs 8(a) and 8(b) of CC-By-SA 3.0 actually have any direct legal effect, or just serve as reminders of something that is effectively true anyway (due to the license being granted to everybody). In either case, however, they (and/or the facts they restate) are clearly not affected by the termination of the upstream license, whether due to the explicit survival clause in 7(a) or due to the fact that the termination of one license does not per se affect any licenses granted (before or after) to others. – Ilmari Karonen Mar 11 at 21:28
35

Some might feel it's off-topic here, but I think this is the right place, so here goes.

After Tim's controversial announcement there was some silence, which led a user to ask a new question: Will concerns regarding the move to CC BY-SA 4.0 elicit any further dialogue from Stack Exchange, Inc.?

There was no answer until a couple of days ago, but this is not what worries me. What worries me is hidden in the comments: starting here, some users discussed that there was a bounty on that question, whose text read:

Looking for an answer drawing from credible and/or official sources.

Will you please just reply already? We need answers. This being ignored will not improve relations between users and the company, nor will it increase your already low trust.

It was deleted. Well, admittedly, it wasn't the most polite message ever (though I think editing it would have been much better than deleting it). But here comes the problem: the offending message also disappeared from Archive.org's Wayback Machine. The snapshots containing that message were removed, and instead they pointed to others which didn't contain the bounty. It seems they were restored after a while, but only after those users reported it. If it was just a coincidence, it strikes me as a very odd one.

So, the point is: did SE's staff reach out to Archive.org asking to remove those snapshots? That would be an orwellian alteration of the past, absolutely intolerable.

What happened? Did you ask for it? Why?

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    I think this should be a distinct question, not hidden in a huge number of answers here. – GhostCat Mar 4 at 8:03
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    I do see the bounty on the web.archive.org link that was provided by other users (note: this predate post notices moving to the top of the post, so the bounty is below the question). So I don't know about anyone reaching out to archive.org, and I do see this bounty message on the archive page there. – Yaakov Ellis Mar 4 at 11:18
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    The official story behind that deletion was "human mistake" - you can read about it here. That said, I am somehow confused by your claims - who are the "users who reported it"? – BlueSoul Mar 4 at 11:22
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    @YaakovEllis As I wrote: "It seems [the missing snapshots] were restored after a while". Everything looks fine now, sorry if I wasn't clear enough. The point is, why did they disappear for some time? – Fabio says Reinstate Monica Mar 4 at 14:42
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    @BlueSoul Thanks for that link, I wasn't aware of it. Anyway, animuson explains what happened here, on this site. Fine. But what I want to know is why some snapshots were removed from archive.org. If that was the result of a request by SE, it can't be an "honest mistake". Then again, according to a comment there, "The [Internet Archive] can be weird and glitchy." If it was a glitch of theirs, again, fine (though as I said, I find it a very odd coincidence). And I didn't want to name the "users who reported them", but I referred to the users who posted the comments on that question. – Fabio says Reinstate Monica Mar 4 at 14:52
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    @FabiosaysReinstateMonica ok, seen now and apparently the original claim you referenced came from someone that I trust wouldn't go around spreading false rumors just for fun. Odd indeed I would say. – BlueSoul Mar 4 at 15:00
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    So, the bounty shouldn't have been removed and we've talked about this internally. There's been an uptick in the moderation needs and folks from other teams who were CMs or moderators in the past have been helping out when they can, and guidance didn't reach everywhere it needed to go. Regarding the Internet Archive, that's just a coincidence. While they will generally cooperate with companies that want to clean up PII leaks or something, they don't arbitrarily remove unflattering things; you've gotta have a damn good reason. That wasn't us. – Tim Post Mar 4 at 15:59
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    @TimPost Thanks! What you say makes sense, and I'm really happy to read it wasn't you. Honestly, I knew I was probably on a witch-hunt, as the bounty message was too meaningless to justify the effort to remove it from archive.org, but this is far too important to have even a shade of doubt. I'm glad this is cleared. As far as I am concerned, incident closed. – Fabio says Reinstate Monica Mar 4 at 17:19
  • @FabiosaysReinstateMonica In situations like that, it might make sense to store pages on-demand at archive.is. They don't obey robots.txt and don't remove stored pages on request. – Idolon Mar 8 at 13:55
33

Please provide a way for a member to mark all contributions as licensed under CC-BY-SA 4.0 . In a single button if possible which works across all communities the member has joined. Maybe with a confirmation dialog.

I've indeed opposed the unilateral change. But I'm happy to relicense as CC-BY-SA 4.0 if politely asked for.

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    After they have the single contribution license tracking in place, that makes indeed sense. Maybe have two buttons, a migration button for each single content and a license migration button for all existing content. – Trilarion Mar 4 at 9:05
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    I don't know if it will make the initial release of updates (which will do things like identify the current version of each post in its timeline), but we definitely plan on adding the ability for a user to upgrade the licenses for all of their posts, as well as indicate whether or not they approve automatically upgrading post CC license version numbers in the future should the standard license for content on the site change. – Yaakov Ellis Mar 4 at 11:04
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    @YaakovEllis Kinda off topic, but I really appreciate that you are taking the time to process and respond to all of these issues and concerns. It previously felt like meta feedback was piped directly to /dev/null (especially on the announcement that triggered this licensing tragedy …). So please continue what you're doing, please continue broadcasting your intent even about such smaller-scale things, and I hope that in between meta comments you also find the time to actually implement this stuff :) – amon Mar 4 at 15:42
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    What happens when other people have edited your contribution? Either with minor modifications, or more aggressive edits. Note that they also have rights. I suppose if nobody else has touched a work of yours, it's very clear cut. – Gregory Currie Mar 5 at 11:19
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    @GregoryCurrie You are right. That will probably kill this idea. If the company cannot change the license of the existing content, then the users cannot do so either. Even if I would mark all my contributions to be under license X, they would still also exist under the original license given at the time of creation. The only possibility would be multiple licenses. I could additionally mark all my CC BY-SA 3.0 content to be also 4.0, but then figuring out what possible licenses modifications can have, becomes really complicated. – Trilarion Mar 5 at 12:03
  • @Trilarion Once the author agrees to 4.0, it's SE can choose to only distribute under a 4.0 license. SO is under no obligation to continue to distribute any version which is licensed under 3.0, even if those are identical content. People who obtained it prior to the 4.0 license being agreed to by the author would still have a 3.0 licensed version (and anyone getting it from that person would also be 3.0), but all people who obtained it as a 4.0 work wouldn't have an inherent right to a 3.0 license, unless they also obtained a version originally distributed under 3.0 (e.g. an archive.org copy). – Makyen Mar 7 at 21:02
  • @Makyen Yes, although in practical circumstances it might be hard to prove that someone didn't download a data dump or obtained a previous version from somewhere. The difficulty with only distributing as 4.0 by SE is that edits that are still under 3.0 could then not be combined anymore with content licensed under 4.0, as I understand it. And it's unrealistic that they get the approval of all people who contributed content between 2010 and 2018, some of them may even be already dead. It would only work for works where all contributors decide that they want to switch to 4.0. – Trilarion Mar 8 at 9:37
29

Firstly, thank you. This announcement is very welcome. It is nice to know that our concerns were heard and addressed.

Additionally, thank you for being so gracious with hearing our frustrations. We are upset because we care about this platform and our communities.

However, we didn't know that our concerns were being heard and addressed until just now.

This change shows you're willing to take our concerns seriously and to try and make changes that agree with the community, but it'd be nice to have just a quick update that acknowledges that you hear us and are taking it seriously. It's hard to keep track of how quickly the seas of Meta change, so for things that cause such a stir as this, comments and answers from SE employees on various Meta posts can get lost.

I think a lot of us feel like there's not a quick enough reaction time to issues that the community raises. The Loop is a step in the right direction, but it's not a mechanism for expressing these time-sensitive concerns.

A quick "We hear you" post would go a long way, and probably would have saved all of us a lot of grief, helped the community to actually give you guys some slack, and helped this to not turn into the fiasco it became

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    but it'd be nice to have just a quick update that acknowledges that you hear us and are taking it seriously. - they did that all the time, we just always thought it was empty promises, and didn't believe them. – kscherrer Mar 3 at 16:42
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    @kscherrer Fair enough. Perhaps updates on the concrete steps that they are going through and planning to complete might help, and maybe as a featured post. I'm not able to keep up with everything that gets mentioned in a comment on every meta post, but I'll definitely see a featured post. – maxathousand Mar 3 at 17:08
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    This is helpful feedback as we improve our communications with the community, thank you. The "quick enough reaction time" is something that is especially helpful to point out. We're working to balance "quick enough" and "making commitments we can follow through on". Seems like a "we're on it" may be good enough immediately even if we need more time. – Sara Chipps Mar 3 at 19:10
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    @SaraChipps Thanks for the response. I'd say a visible acknowledgement is valuable, even if you haven't figured out how to address it yet. I think if people could see that their grievances are being heard at a reasonable volume, they wouldn't feel the need to get so much louder. Again, it's very reassuring that you all have taken measures to address the concern with the licensing—my only request was that the progress that you all were making towards fixing it was more transparent. Thanks for the hard work. Stay strong! Many of us are feeling much more optimistic about where we're headed. – maxathousand Mar 3 at 19:57
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    @SaraChipps I mentioned this to Yaakov somewhere else, an intent and openness to discuss things before they are implemented goes a long way. A ton of feedback was probably indirectly taken into account for this particular decision, something which could've been done with a "Hey, we're planning on doing this, how would you guys like it to be done?". I know for sure that a ton of people really valued the split license decision taken, for instance, and it's something a discussion, rather than edicts, helps with tremendously – Sébastien Renauld Mar 3 at 21:38
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    @kscherrer "They did it all the time"? When? I see lots of questions that went unanswered. Like this one. – Fabio says Reinstate Monica Mar 4 at 3:26
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    Note that timelines do help, even if they're 6-to-8 or off by more than a year, because it indicates a commitment to further action. So we hear you and will get back to you in 6 to 8 is even better than we hear you (but might not do anything) imo. – Erik A Mar 4 at 8:45
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    @SaraChipps This wasn't a communications issue -- the problem was ultimately caused by the fait accompli style of handling, which left you no room to maneuver when issues were pointed out (and which then caused the communications problem to be so complicated); when you announce changes ahead of time, you have enough room to respond if it turns out that you need to. It's encouraging that you seem to be taking the comms observations on board, but it's unfortunate that the changes to the comms strategy don't seem to contemplate these structural issues. – E.P. Mar 5 at 20:39
29

Why "quickly"?

Everything here makes sense and is a welcome update. I was just a bit confused by:

We’re looking at ways that we, as the custodians of your contributions, can make decisions about the license quickly, in a transparent and informative way, to protect your content as the world’s legal landscape changes. Our network of sites has grown to the point where it’s impossible for us to obtain permission from all contributors if a further update to the license becomes necessary and we may find ourselves in a position where we must act quickly.

Do you have any examples of what such a situation might be that would require fast action? Even if hypothetical? In other communities (OSM, Wikipedia), licence changes have occurred over periods of years, not weeks or months.

(I'm not saying you're wrong, I'm just surprised.)

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    This paragraph seems to induce more confusion than clarity. They already acted quite quickly, the license changed on May 2, 2018 within a day. It cannot get much faster. What seems impossible though in general is changing the license of old content, neither quickly nor slowly. – Trilarion Mar 4 at 9:34
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    @Trilarion: It's fairly easy to change the license on an author-by-author base, as long as the author agrees. That could literally be a single tickbox, and given the minor nature of the change you might even pre-fill that checkbox. (i.e. implied consent). For Open-Source this is a known problem, because you often need a license on the whole work, but Stack Overflow can deal with different licenses (as shown here, with a split by date) – MSalters - reinstate Monica Mar 10 at 16:12
  • @MSalters-reinstateMonica Edits of contributions should still present the same problem that also open source code has, SO can deal with different licenses in those cases only because the CC licenses allow what they did, that is strictly increasing the version number. Not sure that also works if the version number does not increase anymore for consecutive edits. Also, I'm not sure that implied consent is really legal everywhere in the world. – Trilarion Mar 10 at 16:43
  • @Trilarion: No, edits of contributions can be licensed CC4 even if the original was CC3, because the CC3 license did allow that. As for implied consent, there's a famous case where a software company put their EULA in an edit box, and a user deleted parts of the EULA text (!) before agreeing. This was considered implicit consent in court; the company should have disabled the Ï agree" button. Also, because implicit consent is legal by default, the GDPR adds additional requirements for explicit consent in certain cases. That's clearly an exception which affirms the general rule. – MSalters - reinstate Monica Mar 10 at 17:18
27

Your feedback made it clear that your concerns were mostly about the way the change was handled, and not so much about any specific version of the CC BY-SA license. We’re looking at ways that we, as the custodians of your contributions, can make decisions about the license quickly, in a transparent and informative way, to protect your content as the world’s legal landscape changes.

It seems you understand my point of view. I'm on the "life is too short" side of the fence on this issue. I don't want to spend time thinking about it; I've got other things to do.

Can I tick a box that says "I'm okay with 4.0 compatible licenses" and never think about this again for the rest of my life?

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  • What are 4.0 compatible licenses? Maybe you mean something like the one button license migration idea of Anonymous Coward. – Trilarion Mar 4 at 9:30
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    I don't know if it will make the initial release of updates (which will do things like identify the current version of each post in its timeline), but we definitely plan on adding the ability for a user to upgrade the licenses for all of their posts, as well as indicate whether or not they approve automatically upgrading post CC license version numbers in the future should the standard license for content on the site change. – Yaakov Ellis Mar 4 at 11:03
  • @YaakovEllis: That's great to hear, thanks :) – V2Blast Mar 5 at 3:19
24

Thank you for this. I believe this is a huge step, however I still have concerns.

My first concern is pretty serious, and it's exactly what curiousdannii brought up. The license wasn't unilaterally changed once, but twice. The big difference between the 2.5 to 3.0 and 3.0 to 4.0 change was the level of community trust in the company. We had extreme amounts of trust in Jeff, Joel, and the other leadership back in 2011 that has eroded significantly, especially in the last 6-9 months. Since it's clear that the company recognizes that they do not have the right to change the license without permission of the author, I'd like to understand why the annotation of licensing isn't being applied to the posts made prior to the conversion to 3.0 as well and what makes that change different, from a legal perspective. I'm not a lawyer, but it seems like you're acknowledging a mistake that was made twice, but only fixing one even though the solution is the same.

My next thought is more of where we go from here. Does the fact that at least two licenses (with the need for more being acknowledged) open the door for us to choose our own licenses? I can understand not wanting a wild west - some licenses may not be compatible with how the network uses and distributes content. However, some may be. Starting with CC BY-SA 3.0 and 4.0 is a good start, but will there be mechanisms to allow me, as an author, to upgrade all of my 3.0 content to 4.0? If given the choice as required by the license, I will most certainly opt-in. But how about other, compatible licenses? CC BY and CC0 are both less restrictive and may be good early candidates. Could I opt my contributions into one of these licenses or others to ensure it's used not only used appropriately on the network, but allowed for use in the manner that I best see fit by other people in a way consistent with usage on the network.

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    If each post in the database has its own license then it would be easier to allow people to mark their posts as CC0, CC BY, or MIT. But lets fix the existing issues first. – curiousdannii Mar 3 at 23:37
  • @curiousdannii I would hope that would be the approach taken, especially since there's an acknowledgment that there may be events that will require new contributions to be under a new and different license with short notice. – Thomas Owens Mar 3 at 23:53
  • Multi-licensing sounds possible, each contribution could have a list of licenses attached. Figuring out the license of combined works might be an obstacle though. And that would require at least one more change of the ToS. – Trilarion Mar 4 at 9:38
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    We are looking into also showing the 2.5 license number on posts predating that change. Cannot commit to it yet. As far as allowing users to choose which license to use, that is a bigger issue that I can't comment on or commit to right now. – Yaakov Ellis Mar 4 at 11:20
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    @YaakovEllis Thank you. I do hope that displaying the appropriate license (2.5, 3.0, and 4.0) is the first priority. I would also hope that the second priority is a way for the author of the content to opt into upgrade to the "current" license for their contributions easily. The support for user-selected licensing is a pretty big wish. – Thomas Owens Mar 4 at 13:04
  • @ThomasOwens Note that you can't upgrade or revoke a CC licence. So it would be dual licensed if anything. – Gregory Currie Mar 5 at 12:08
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    @GregoryCurrie That's incorrect. If I own the work (which I do), I can change the license at any point in time. People who received it under the old license don't have the old license revoked (I believe all the CC licenses are irrevocable - I know that CC BY-SA is), but they can always receive it again under the new license. I guess, effectively, there may be copies out there under both licenses, but you can control the license at the point of distribution. – Thomas Owens Mar 5 at 13:25
  • @ThomasOwens I think you'll find that I am correct. As you said, the CC BY-SA licences are irrevocable. You can dual licence however. Once it is published with a specific CC licence, it will, at a bare minimum, have that licence. Even if you decide to change the licence notice, others are free to treat it as the old licence as it was published with that licence. You can of course, stop distributing it under CC BY-SA 3, but that doesn't mean the licence no longer applies, it does. Any existing copies of the work can be used as if it was licenced under CC BY-SA 3. – Gregory Currie Mar 5 at 13:56
  • @ThomasOwens While it feels like an academic point, it has a real impact when talking about derivative works. If it was ever published under a CC licence, it will have that licence. Derivative works licenced under CC BY-SA 3, don't become invalidated if the original work gets "upgraded" from CC BY-SA 3 to CC BY-SA 4. This is because CC BY-SA 3 is irrevocable. If you could transition your work from CC BY-SA 3 to CC BY-SA 4, that would mean that all derivative work becomes invalid. Which is why one of the reasons the CC licences are irrevocable. So, as I said, at best, you can dual licence. – Gregory Currie Mar 5 at 14:05
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    @GregoryCurrie If I post something on the Internet licensed to anyone who obtains it under CC BY-SA 3.0, anyone who obtains it must follow those rules forever (and the same to people who obtain it from them and so on). I can then upgrade the license to CC BY-SA 4.0. Anyone who obtains it after that point must follow CC BY-SA 4.0 rules (and people who obtain it from them or derivative works and so on). The same work, depending on where it's obtained from and when, may be under different licenses. I suppose that is dual licensed. I can't force people who got it under 3.0 to follow the 4.0 rules. – Thomas Owens Mar 5 at 14:15
  • @ThomasOwens Excellent. I also do wonder what such a feature would effectively mean when there are multiple people worked on the one piece of content, when an edit history represents a chain of derivative works. – Gregory Currie Mar 5 at 14:51
  • @GregoryCurrie Same. Maybe it's not feasible because of the edits. At that point, you're so deep in nuances and weeds that I'm a bit out of my league. Especially since some edits may have been approved or accepted by the author or other users if the user making them didn't have permission to push edits without review. So there are several actors involved. – Thomas Owens Mar 5 at 14:57
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    Replace "The license wasn't unilaterally changed once, but twice" with "The license wasn't misrepresented once, but twice" – Prof. Falken Mar 6 at 11:32
  • @ThomasOwens You can always choose to have the content you've authored and posted here available under a license in addition to the CC BY-SA license mentioned in the TOS. There are many users which state that such licenses are granted either in their post(s) or in their profile. What can't be done is have it not also licensed under the CC BY-SA license mentioned in the TOS. A person who obtains a copy can then choose which incense they desire to use from the licenses you've granted and under which it's still being distributed as of the time and from where they obtain a copy. – Makyen Mar 7 at 21:30
21

Our network of sites has grown to the point where it’s impossible for us to obtain permission from all contributors if a further update to the license becomes necessary and we may find ourselves in a position where we must act quickly.

Nowhere in the terms of service does it give Stack Exchange the right to unilaterally change the licence for my contributions. Even in the most dire circumstances, that doesn't magically mean SE has additional rights over what was agreed.

It’s our responsibility to ensure that your contributions remain open and accessible to the world, in the same giving spirit that you provided them.

There is an overriding legal obligation to ensure contributions are licenced in accordance with the agreement reached with the owners of the copyright of those works. These licences are specifically designed, by experts, to meet ensure the contributions "remain open and accessible to the world". It would take a very strong argument to convince me that Stack Exchange needs to breach the licence to fulfill the objectives of the licence itself.

In my mind there are three clear aspects to this issue:

  • Communication
  • Nature of CC BY-SA 4
  • Legal

Indeed communication was a primary one, and not too many people are concerned about the nature of CC BY-SA 4.

However, Stack Exchange has not expressly said they breached the conditions of the licence, or our agreement, and I suspect they never will. They have given no indication that they would avoid doing so in the future; Indeed they have suggested they will update the licence whenever they deem it necessary.

The solution in my mind is rather very simple. Works have the licence they were created under. Modifying existing content is always allowed, and the content keeps the existing licence. If a new licence is decided in the future, users have to agree to that new licence before they can post new questions or answers, but they can always modify existing content under its existing licence.

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    "..they can always modify existing content under its existing licence..." You can do so, but then you probably cannot upload the modification to SO because they want every new contribution, even modifications of existing content under version 4.0. That certainly can be discussed and would roughly result in you being able to choose from a set of possible licenses when contributing. Might go a bit against their desire to keep it simple. – Trilarion Mar 5 at 9:51
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    @Trilarion I'm aware that my solution may not fulfil the wishes of SE, but there is an argument to be made that modifying existing content to upgrade the licence may not be possible without the approval of all contributors to that work. Which means, I may not have the unilateral right to "upgrade" the licence on modification if others have also contributed to the work. Which is why it's simpler from a legal perspective to keep the licence for existing works static. I don't think it's reasonable for users to pick the licence they wish to use, especially when others can modify the contribution. – Gregory Currie Mar 5 at 11:15
  • In this case, for CC BY-SA licenses with version >1, it seems that one can license contributions to adaptations also with a later version of the license. See creativecommons.org/share-your-work/licensing-considerations/… – Trilarion Mar 5 at 11:33
  • @Trilarion This gets very muddy, very quickly. The contributions of the other authors would remain under CC BY-SA 3, but the initial work (and subsequent contributions) by the same author could be upgraded. This would mean that the content the user sees would no longer be a single consistent licence, but a mixture of different licences. In addition, the other authors contributions would appear to be in breach of CC BY-SA 4 (as their contributions are marked as CC BY-SA 3) but this is not the case, as when they created their adaption, the work was licensed under CC BY-SA 3. – Gregory Currie Mar 5 at 11:45
  • @Trilarion The other question is, is a given bit of content a chain of adaptions, or shared-authorship? – Gregory Currie Mar 5 at 11:47
  • I would opt for chain of adaptations, there is clearly a timeline describing the whole process and along that timeline the version of the license only increased, so I would go this way. Something we may not be able to do is applying edits out of their timely order, for example applying an edit of 2019 first and then one of 2009. It can only be the other way around. If you think that adaptations changing the license version were not possible at all, this issue should probably discussed in its own question. – Trilarion Mar 5 at 11:56
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    @Trilarion When the adaptions were created the base work was under a difference licence. Changing the timeline of edits would be needless, and would not work. A Creative Commons licence can't be revoked, so the adaptions are legally fine, provided they were legally fine when they were created. Theoretically all content currently under CC BY-SA 3 can't be "upgraded", but it can be dual-licence with CC BY-SA 4. – Gregory Currie Mar 5 at 12:05
  • @GregoryCurrie: any decent attorney will advise licensees never to admit to a license breach before the licensor complains. It's civil law, if the licensor thinks that it's allowed to upgrade the CC license then that's the truth as far as the law is concerned. Not even the authors of the CC license can change that. – MSalters - reinstate Monica Mar 10 at 16:24
  • @MSalters-reinstateMonica A decent attorney will advice not to breach licence in the first place. I wouldn't say what you're saying is exactly true. A licensor has control over their own work. If they agree to what the authors in the CC license said, they are bound to those conditions (to the extent covered by the licence). That's what it's there for. The licence has an explicit no-revocation clause, meaning the licence also protects the licensee. The licensor is bound to that clause. – Gregory Currie Mar 11 at 2:33
  • @MSalters-reinstateMonica So, effectively, anyone that received the work under CC 3, still has a licence to that work under CC 3. You could probably make an argument that you could "upgrade" the licence if you could prove there were no copies of that work in existance. But given there are dumps of SE that are downloadable, there are almost certainly copies of that work when it was under the old licence. – Gregory Currie Mar 11 at 2:42
  • @MSalters-reinstateMonica I think you're right though. You could say: "Going forward, this is now under CC BY-SA 4". You just wouldn't really be able to legally act on anyone that is using it as if it was under CC BY-SA 3. – Gregory Currie Mar 11 at 2:45
17

If there is a desire to be able to upgrade licenses again in the future, perhaps the ToS should be updated now so that all future submitted content is licensed under CC-BY-SA 4.0 or later.

You'd still have to deal with legacy content trapped under 3.0 only or 4.0 only; but it would allow for relatively painless upgrades in the future and never having to support more than 3 license levels. i.e. the payoff would be X years in the future when upgrading from 5.0 to 6.0 you could do so and not have any legacy 5.0 only content left on the site.

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    While I would like that, I'm not sure it would be legal. Where I live, I cannot legally agree to something I don't know yet. – nvoigt Mar 3 at 15:45
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    We're still looking at the specifics of how to implement that, as well as a transparent procedure we'd follow in the event that something in CC BY-SA 4.0 didn't hold up in a court somewhere and there was an urgent need to upgrade. That's still a bit of a wire frame in the plan we've got now, but we'll address it (and kick off a subsequent discussion around the particulars). – Tim Post Mar 3 at 15:45
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    @nvoigt That's how most GPL licensing works; notably, it wasn't done with the Linux kernel and so therefore that will be on GPLv2 forever. I'm not saying I'm super happy about agreeing to a license that I have no control over, but there is precedent. – Xiong Chiamiov Mar 3 at 18:24
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    How meaningful is an "or later" option, really? Who defines what is a later version of the license? What if I create a license that I call CC BY-SA 5.0, and you've published and licensed some content under "4 or later,". Can I then publish the same or a derived work under my CC BY-SA 5.0? Or suppose you stipulate that any later version of the license must be published by the same organization, to try to prevent that. What if the org name or makeup changes? Or they release 5.0 that goes against the spirit of older versions? – cp.engr Mar 4 at 6:07
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    @cp.engr CC-BY-SA 4.0 has a Compatible License mechanism built-in that addresses these concerns. An "or later" clause could leverage that mechanism. In practice, upgrade clauses have yet to show problems such as those envisaged by you, but have had numerous benefits (such as allowing Wikipedia to migrate from GFDL to CC-BY-SA licensing). – amon Mar 4 at 6:30
  • @nvoigt: One option available is to ask for a CC-latest license for all your existing content, not just content created after the ToS goes into effect. That effectively means that if you want to post a new question today, you have to grant a CC4 license for all your existing questions and answers, even if they were originally licensed under CC3. But SO would still need to treat original content as CC3 until that happened, so database-wise this is not a huge improvement. – MSalters - reinstate Monica Mar 10 at 16:19
16

Please allow us a way to exempt content! To quote a post on meta about this:

tl;dr: Right now we are not allowed to cite outside sources (unless they are compatible with cc by-sa 4.0) or use images under fair use exceptions in our posts. Creative Commons provides guidance how to fix this, lets implement it.

When you read the Creative Commons FAQ it literally explains how to fix this, so please do. Reproducing it in it's entirety here seems counter productive, but the point is that when a user right now quotes an external source (e.g. on StackOverflow this could be documentation) he's publishing it under a CC license which the user isn't allowed to. Similarly when — especially on other network sites — users think they post an image under fair use exemptions, in reality the exemption doesn't apply, as a fair use exemption doesn't allow republishing someone's copyrighted content under a CC license.

In other words, if my understanding is correct the footer should include something like

Except otherwise noted user contributions licensed under cc by-sa 4.0 with attribution required

Source: https://wiki.creativecommons.org/wiki/Marking/Creators/Marking_third_party_content

And then the ToS should include some type of exemption allowing users to exempt certain parts of their user contribution if they themselves are exempted under fair use/citation law.

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    Forgive my ignorance, but how can fair use ever not be allowed? – Prof. Falken Mar 9 at 9:44
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    @Prof.Falkencontractbreached Fair use gives you a limited set of rights. To make an extreme example, imagine that 20 different reviewers use a different minute of content from a 20 minute short movie in their critique and each of them would publish their review as CC0, that would then mean someone would be able to cut up those reviews and reconstruct the entire movie and claim it was CC0. To put it differently, fair use allows you (assuming you are in the US) to use content in a certain very specific way, it does not allow you to give other people any rights over the content (which CC does). – David Mulder Mar 9 at 9:47
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    Ah, so what you are asking for is a way to allow fair use quoting on SE, but mark these contributions as "not CC-BY-SA" so people (readers) know they can't use the contributions under CC-BY-SA terms? – Prof. Falken Mar 9 at 9:52
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    Not only that they know, but in the first place the copyrighted content can't be published under CC, so we as authors can't provide SO a CC license in the first place. This is especially an issue with images, as with the images we can't even go down the "The CC license only applies to the rights you have in the work" as SO/SE explicitedly requires you to give them a CC license for the image you upload. – David Mulder Mar 9 at 10:25
15

Our network of sites has grown to the point where it’s impossible for us to obtain permission from all contributors if a further update to the license becomes necessary and we may find ourselves in a position where we must act quickly. If such a situation arises, and we need to update to the most recent version of CC BY-SA, we will make sure to let you know. It’s our responsibility to ensure that your contributions remain open and accessible to the world, in the same giving spirit that you provided them.

Does this mean that another split will happen, or does CC BY-SA 4.0 actually allow you to update without consent? Looks like you are confirming 3.0 doesn't since you are "walking the change back" and putting the "old" content back to CC BY-SA 3.0.

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    I think it's important to note that they never walked anything forward, nor back. They misrepresented that content was under version 4 which was actually under version 3. – Prof. Falken Mar 5 at 8:13
14

Okay, suppose that the 4.0 license really came into effect on 2018-05-02.

But there was a period from 2019-09-05 to 2020-03-03, when the 3.0 license was not mentioned anywhere: neither in the TOS, nor in the footer.

It means the CC-BY-SA 3.0 license is still violated, and your rights were terminated automatically on 2019-09-05. These rights are not automatically restored after the violation has been eliminated.

In this case you must accept any takedown request related to the content published before 2018-05-02.

This answer is not a legal claim and I'm not a lawyer, it just describes my view of the situation for other users.

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    SE does not need any rights under the CC-BY-SA licence. It can do pretty much anything with the content under the additional licencing terms embodied in the Terms of Service. Only third parties are bound by the CC-BY-SA licence (unless the author of the content also granted them another licence). – Emil Jeřábek Mar 3 at 19:13
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    While I am by no means an expert, I'll note that in many (most?) publicized cases of open-source viloations the copy-right holders have accepted "OK! OK! We'll make it better!" as sufficient as long as the violator relents before the court documents are filed. Presumbly to encourage "making it better" as the first response to learning that there is a violation, and to make a stark contrast between the outlook when viloators do make it better and the risk when they hang on until copyright holds feel they have to file. – dmckee --- ex-moderator kitten Mar 3 at 19:13
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    @EmilJeřábek3.0 I'm not a lawyer and I can be wrong, but the old TOS says "You [...] licensed to Stack Exchange under the CC[...] license" and the other terms of the TOS just repeat the CC terms and don't contradict it, as I think. – andreymal Mar 3 at 19:24
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    See e.g. opensource.stackexchange.com/questions/5663/… , from folks that actually understand this stuff. – Emil Jeřábek Mar 3 at 19:34
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    @EmilJeřábek3.0 actually RubberDuck is also not a lawyer. – andreymal Mar 3 at 19:42
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    @EmilJeřábek3.0 even if your and RubberDuck's interpretation is right, there is still no right to relicense content (except as described in CC). So I think something is violated anyway. – andreymal Mar 3 at 23:09
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    Of course. But what is violated by SE by relicencing the content without authorization of the copyright holders are primarily the Terms of Service. – Emil Jeřábek Mar 4 at 8:24
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    @EmilJeřábek3.0 I just want to call out that Q&A was back in the CC-by-CA 3.0 days and andremal is correct that IANAL. – RubberDuck Mar 5 at 20:50
14

Thank you for this advance. I'm cautiously optimistic that you (meaning SO Inc) have understood the issues and are moving in the right direction.

In that vein, I have some suggestions for what you indicate are your current concerns:

We’re looking at ways that we, as the custodians of your contributions, can make decisions about the license quickly, in a transparent and informative way, to protect your content as the world’s legal landscape changes.

Some of the answer is quite simple: by not breaking the contracts you have made, and sticking fully to the letter of the contracts you have signed. The problem with the relicensing is not (just) the communication, but the fact that it was illegal and that it violated the contract that allowed you to publish content-you-don't-own in the first place. If you want the problem to stop, you absolutely need to stick to the contracts.

(The fact that it violated that contract is clearly documented elsewhere, including in a dedicated page by the authors of the license themselves, and should have been caught by your legal office if they are competent and have a position who is assigned to look at legal issues from the perspective of us, the providers of the content-you-don't-own that you want to monetize. You do have such a person, right?)

It's kinda concerning that you're still "looking at ways" to "make decisions about the license" quickly without acknowledging this. You need to fulfil the conditions of the license, or you lose the right to distribute it under the conditions that you want (as well as the trust of this community). If what you meant was that

  • you're looking for ways in which to communicate effectively with the content-owner community,
  • to explain any future changes to your handling of the content and how they are consistent with the existing contracts (which includes old contracts for old content)
  • as part of a two-way communication process where the content-owner community can point out flaws in your interpretation
  • and where you will actually go back and fix those problems before implementing changes that break the contracts you have signed,

then that's great, but you need to actually say all of that.


And, while we're here, wouldn't this be a great time to stop claiming that chatroom conversations are licensed under "cc-wiki" or CC BY-SA 2.5? (just saying).

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13

Can I safely Code Review old posts?

Question askers post code in questions on Code Review. I post all changes at the end, take my top voted answer.

If I answer a post from before 2018-05-02 and post an updated version of the code am I safe? Do I need to add a disclaimer that the post is CC BY-SA 3.0? If I do, can I do that without violating the current TOS?

Are the users that posted answers, with a final version, around 2018-05-02 safe?

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    The CC BY-SA 3.0 license allows you to publish derivative works under the 3.0 or later license, so you're fine to do code review on 3.0 posts. – curiousdannii Mar 3 at 21:48
3

Better late than never

In light of the recent controversies, I applaud you all for finally addressing one of the biggest issues for the community. There's still more issues to work out, but I hope this is your corporate way of apologizing and fixing what you messed up.

It's a step back toward the path the community wants you on. You still have a lot of damage to repair and you will never fully recover to what you once were. The damage SE Inc has caused to a number of people will forever leave a scar on its reputation and the people it harmed.

We all have our eyes on you and it's now up to you to rebuild that trust.

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