Plaintext
Dan Wielsch
Governance of Massive
Multiauthor Collaboration
Linux, Wikipedia, and Other Networks: Governed by Bilateral
Contracts, Partnerships, or Something in Between?*
by Dan Wielsch, Cologne
Dr. iur., LL. M. (Berkeley), Professor of Law at the University of Cologne, Chair of Private Law and Legal Theory,
Germany
Abstract: Open collaborative projects are aptation of access rules in networks to new circum-
moving to the foreground of knowledge production. stances raises collective action problems and suffers
Some online user communities develop into long- from pitfalls caused by the fact that public licensing is
term projects that generate a highly valuable and at grounded in individual copyright.
the same time freely accessible output. Traditional
copyright law that is organized around the idea of a Legal governance of open collaboration projects is a
single creative entity is not well equipped to accom- largely unexplored field. The article argues that the li-
modate the needs of these forms of collaboration. In cense steward of a public license assumes the posi-
order to enable a peculiar network-type of interaction tion of a fiduciary of the knowledge commons gen-
participants instead draw on public licensing models erated under the license regime. Ultimately, the
that determine the freedoms to use individual con- governance of decentralized networks translates
tributions. With the help of these access rules the into a composite of organizational and contractual el-
operational logic of the project can be implemented ements. It is concluded that the production of global
successfully. However, as the case of the Wikipedia knowledge commons relies on rules of transnational
GFDL-CC license transition demonstrates, the ad- private law.
Keywords: Governance, Collaboration, Multi-Author, Open Content, Open Source, Commons, Wikipedia, Net-
works, Access, Licensing, GPL
© 2010 Dan Wielsch
Everbody may disseminate this article by electronic means and make it available for download under the terms and
conditions of the Digital Peer Publishing Licence (DPPL). A copy of the license text may be obtained at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
This article may also be used under the Creative Commons Attribution-Share Alike 3.0 Unported License, available at http://
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Recommended citation: Dan Wielsch, Governance of Massive Multiauthor Collaboration - Linux, Wikipedia, and Other
Networks: Governed by Bilateral Contracts, Partnerships, or Something in Between?, 1 (2010) JIPITEC 96, para. 1.
A. Open collaborative production zation studies. But the economic viability of this
model is linked to certain conditions. As the costs
1 Open collaborative projects flourish. And they are for design and communication decline due to new
revolutionizing our understanding of innovation and technologies,2 innovation by single users and open
production practices. In the 1930s, Joseph Schum- collaborative innovation compete with and even dis-
peter placed producers at the center of economic place (closed) producer innovation in parts of the
development, saying: “It is … the producer who as a economy.3 Also we experience combinations of these
rule initiates economic change, and consumers are forms, as some of the most compelling examples of
educated by him if necessary.”1 For decades, this peer production seem to be hybrids of firms and in-
“producers’ model” shaped economic and organi- formal patterns of coordinated behavior.4
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Governance of Massive Multiauthor Collaboration
2 Open collaborative projects involve users and oth- 6 The differentiation between primary rules for access
ers who share the work of generating a design and and policy is important since the individual nature
also reveal the outputs from their individual and of property rights causes constraints for collective
collective design efforts openly for everyone to use. decision on access rules, whereas policy rules do not
Such projects can evolve when a task can be parti- have constraints of such kinds. These constraints re-
tioned into smaller modules that can be worked on sult from the strategy to use copyright and licenses
independently and in parallel. Then each partici- to build a realm of free knowledge. Through such
pant incurs the cost of doing some fraction of the an approach, the open access movement may actu-
work but obtains the value of the entire design, in- ally reinforce the property discourse as a concep-
cluding additions and improvements generated by tual framework.9 As the Wikipedia license migration
others.5 This holds true especially for online, mas- will demonstrate, the use of licenses to craft freedom
sive multi-contributor (MMC) projects such as OSS may in turn affect the meaning of that freedom. The
projects and Wikipedia (“knowledge-sharing proj- question is how far traditional intellectual property
ects”) that I want to focus on. law shall influence the crafting of a “simulated pub-
lic domain.”10
3 Characteristic for these projects is that the partic-
ipants use private ordering to construct a public
knowledge good. Whereas for markets such public I. Access rules for MMC networks
goods present a problem, it should be recognized
that from the perspective of another social institu- 7 “Network” represents a specific kind of social inter-
tion – the “network” – they are not problematic at action that combines the way decisions are taken on
all but instead are essential for its proper function. markets (by individuals that act decentralized and
As for markets, the law has developed legal forms independent from each other) with the generation
and rules for ordering. But what about legal rules of synergies (additional rents) resulting from the
for networks? Is interaction in networks governed pooling of knowledge that is usually possible only
by the law of contract, by the law of partnerships, within the firm.11
or by “something in between”?6
8 The main idea behind the concept of network is to
describe the simultaneous presence of individual
B. Elements of governance and collective interest pursuit, a “dual orientation”
for a massive multiauthor of actions.12
collaboration project 9 In an open collaborative project, users retain their
peculiar motivation (striving for reputation, fun,
4 In the past, scholarship has emphasized the char- etc.) and initiative (they are not obliged to contrib-
acter of MMC as a spontaneous order with partici- ute), and they contribute whenever they want to and
pation on an ad hoc basis.7 Less attention has been whatever they regard as interesting and appropriate.
paid to the fact that some of the most important ex- Unlike in a firm, no central coordination of contri-
amples of MMC are long-term projects. This temporal butions takes place: participants do not act accord-
aspect has implications for their legal governance. ing to the decisions in a hierarchy, just implement-
ing a given plan. Yet at the same time, the fruit of
5 In the following it is argued that governance of MMC the individual contribution is levied for the sake of
projects requires three different types of rules: collective interest. This is achieved through the le-
gal instrument of “copyleft” that instrumentalizes
ff “Access rules” that determine the freedoms to copyright in order to make it possible for others to
use individual contributions. Such rules create use the contribution freely. With the help of this “so-
a knowledge commons. cio-legal hack,” the exclusive right is not waived; in-
stead, its function is reversed from the safeguarding
ff “Policy rules” that define standards each con- of the prerogatives of the author to the safeguarding
tributor must meet in order to preserve the of the freedoms of the user.13 As a result, the right to
integrity of the complex project. They extend use the contribution is dispersed to anyone.
to rules about conduct and admissibility of
contributions. 10 Put in the words of property rights theory, the “au-
thority to select” the use of a resource which nor-
ff “Amendment rules” that allow for changing ac- mally is restricted to the owner gets decentralized.14
cess and policy rules, either to further develop This is the genius of copyleft: due to the fact that
the project or to adapt it to new conditions in now many users can decide independently on the
the environment (e.g., to achieve license com- use of one and the same resource, the chances for its
patibility). They serve as secondary rules.8 creative employment, for a follow-on invention, get
multiplied. The private crafting of a commons moves
selection authority to the knowledge of the individ-
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Dan Wielsch
ual user. Networks thereby enable a discovery pro- themselves nothing other than UGC. Thus, policies
cedure much the same as in markets, but the access and guidelines can be edited like any other Wiki-
of individuals to resources is extended to much more pedia page. Yet edits that would imply a change to
than a single person would have at hand, much the accepted practice, particularly such edits to a pol-
same as in firms.15 icy page, should be discussed in advance to ensure
that the change reflects consensus. Consensus is nor-
mally reached through negotiation. In order to reach
II. Policy rules for MMC networks consensus in discussions on complex questions,
“straw polls” have been used on Wikipedia almost
11 According to this view, networks generally do not since the beginning of the project. They do not form
constitute bodies of collective action but instead link consensus but just measure it by indicating “where
knots of decentralized decision-making. As Benkler the community stands.” For example, recently a poll
has emphasized, drawing on The Matrix, “There is no was held to determine the PD-Art policy. The reason
spoon.” In the case of online networks there is code, was that in some jurisdictions, photographs that are
interface, and the social relations they make possi- intended to be faithful reproductions of old public
ble. Wikis are a form of “social software,” mediat- domain 2D works of art (such as paintings) are en-
ing a social relation among individuals who have no titled to copyright, whereas in others those photo-
pre-existing relations, and are weakly tied through graphs are considered to be in the public domain.22
a group interaction whose stickiness comes from At stake was one of the main policies of Wikimedia
the possibility of shared efficacy among its users.16 Commons, according to which only free content is
accepted, i.e., images and other media files that can
12 Nevertheless, the individual users share a common be used by anyone, anytime, for any purpose.
project that is defined by its own teleology. Each
project displays its peculiar kind of complexity that 15 A closer look at the mechanisms for dispute resolu-
affords some (perhaps minimal) criteria a single con- tion on Wikipedia reveals that arbitration focuses
tribution must meet and some form of coordination on bad behavior and refuses to resolve the content
among them. The question is: How is behavior coor- of the disputes it hears. The Arbitration Commit-
dinated in a decentralized network of participants? tee tries to filter out disruptive trolls, and bans are
In a network whose only normative underpinning limited to instances of impersonation and flagrant
consists of the license users accept when they en- anti-social behavior. Not everyone is happy with this
gage in the project? The answers will remain pre- divide between substance and process.23 But it cor-
liminary since there “currently exists no theory of responds to the widely shared belief of users that
collective action in a networked digital context.”17 truth will emerge from online dialectic. It also points
to the notion (when it comes to the question of gen-
13 In the case of Wikipedia, social norms are “inter- eralization) that there has to be a “fit” between the
nally” generated by the user community itself. Wiki- community and the possible dispute resolution tools.
pedia users feel committed to five principles (“five
pillars”18) that can be summarized as a “dedication 16 In summary, over time the Wikipedia project has de-
to objective writing” and “the use of open discourse, veloped its own rules of conduct and effective ways
usually aimed at consensus.”19 Wikipedia’s policies to administer them.24 The dispute resolution system
and guidelines are based on these general princi- brings in a mechanism to review conflicts by means
ples. Both instruments are intended to reflect the of the self-generated principles and policies. Norm
consensus of the community. While policies have production thereby becomes self-reflective.
wide acceptance among editors and describe stan-
dards that all users should normally follow, guide-
lines are sets of best practices that should generally C. The amendment of access
be followed, though with occasional exceptions.20 rules in MMC networks
Wikipedia’s policies and guidelines exist to help ed-
itors determine the best course of action in a situ- 17 A third category of rules comes into play when need
ation where there is no official authority assessing for change of access rules occurs. Drawing on Hart’s
the quality of articles. Wikipedia’s arbitration plays distinction between primary and secondary rules, IP
a crucial role in framing and spelling out these prin- access rules are clearly an instance of primary rules
ciples. Although the arbitrators do not regard them- since users “are required to do or abstain from cer-
selves as bound by precedent, the Arbitration Com- tain actions.” Secondary rules instead are rules that
mittee has compiled a list of the principles from all “introduce new rules of the primary type, extinguish
of its cases to date,21 considered by some as a kind of or modify old ones.”25 Now, amendment of policy
Wikipedia proto-Constitution. rules is built around consensus. When it comes to
establishing policy rules, consented practices play
14 Since all these policies and guidelines about how
a major role. Building consensus is also the proce-
to deal with user-generated content (UGC) reflect
dure by which policy rules are changed. However,
just a (rough) consensus among the users, they are
1 98 2010
Governance of Massive Multiauthor Collaboration
consensus cannot be referred to for the amendment to reuse Wikipedia content under the GFDL license
of access rules. One difference comes to mind im- or the CC-BY-SA license.
mediately: a change of access rules does not just af-
fect internally generated normativity but extends 21 According to the definitions in sec 11, an MMC is only
to state-granted legal rights as well. In this respect, eligible for relicensing if the GFDL-licensed work it
amendment seems to require individual manage- contains was incorporated prior to November 1,
ment of property rights. Thus, changing access rules 2008. This constraint is not only necessary to protect
in principal is channeled through contract. This may the autonomy of site operators to decide whether to
conflict with the needs of the collaborative project. relicense or not. It also complies with the key con-
Anyway, the set of amendment rules serving as sec- dition of the FSF to prevent GFDL-licensed software
ondary rules in the Hartian sense has to be differen- documentation from being re-licensed without the
tiated, depending on what type of primary rule the permission of the authors. The fear was that exter-
amendment rules are related to. A good case study nally originated GFDL content would be bulk-im-
is the Wikipedia GFDL-CC license transition. ported and bulk-relicensed.
22 Though understandable, this eligibility provision
I. Wikipedia GFDL-CC splits up GFDL licensors in two groups: those who
contributed to an MMC and those who did not
license transition (namely authors of software manuals as the origi-
nal audience of the GFDL), the latter keeping their
18 With the rise of the open access movement came a autonomy to decide for dual licensing (“quod licet Jovi
variety of open license models (e.g., GFDL, CC-BY- non licet bovi”). It also required an opaque maneu-
SA, Free Art license). The idea behind this variety ver involving just the heads of FSF and Wikimedia
was to tailor the license to perfectly serve the dif- Foundation, excluding discussion among the com-
ferent needs of creators and projects. Although the munity: “While an earlier draft was published, the
core freedoms protected by these licenses are sim- specifics of the migration process have been negoti-
ilar, the licenses are incompatible with each other ated privately in order not to allow for such system-
due to their respective copyleft. A work licensed atic bulk-relicensing by interested third parties.”28
under one free public license cannot be integrated Why did FSF cooperate at all? FSF was fully aware
with work licensed under a second free public li- that something unusual was going on: “Normally,
cense; the works cannot “interoperate.”26 In conse- these sorts of licensing decisions can and should be
quence, the realm of free culture is being fractured. handled by the copyright holder(s) of a particular
Since construction of commons by private ordering work. However, because Wikipedia has many copy-
draws on the scheme of property rights, the com- right holders, the project needed some alternative
mons run the risk of being infected by the “tragedy way to accomplish this, and we’ve worked with them
of the anticommons.” to provide that.”29
19 Wikipedia especially was in danger of being caught 23 From the perspective of the individual contributor,
in such a “license trap.” Whereas at the time of its the license migration procedure was highly medi-
launching GFDL was a reasonable option for open ated: through the new release of GFDL, the one orga-
content licensing, in the meantime CC has evolved nization (FSF) afforded another organization (WMF)
to become the de facto standard in this field. So the the right to relicense all the user-generated con-
challenge was to make the millions of articles avail- tent on Wikipedia, affecting the rights of innumer-
able on Wikipedia and Wikimedia’s other wikis com- ous contributors. To be crystal clear on what sec 11
binable with the vast body of works outside Wikime- means: “Relicensing can only be done by the operator
dia that uses CC licenses. of such a website, not by any other party.”30
20 In late 2007, Wikimedia passed a resolution asking 24 The way the community was brought back in was in
the Free Software Foundation (FSF) to update the the form of a referendum among the users with the
GFDL to allow Wikipedia and similar Wikis using the help of which WMF intended to get legitimation for
GFDL to also use the CC-BY-SA license. On November the change:31
3, 2008, FSF released a new version 1.3 of GFDL.27 The
primary change is the addition of section 11 on “Re- 25 “It is expected that we will launch a community-
licensing”: “The operator of an MMC site may republish wide referendum on this proposal, where a majority
an MMC contained in the site under CC-BY-SA on the will constitute sufficient support for relicensing.”32
same site at any time before August 1, 2009, provided
the MMC is eligible for relicensing.” This new pro- 26 Indeed, a Wikimedia-wide vote was conducted be-
vision allows content already released under GFDL tween April 12 and May 3, 2009. The poll was open
to also be made available under the terms of CC-BY- to any registered user of a WMF project with at least
SA. Thus, a “dual licensing” model is implemented 25 edits in the past. From a total of 17,462 votes cast,
retroactively. Re-users are able to choose whether 75% were in favor of the change. Yet the final and
1 99 2010
Dan Wielsch
legally relevant decision was reserved for the WMF is the entirety of project-related licenses adapted to
Board of Trustees: on May 21, 2009 it passed the “Li- a changing environment? Who can handle the issue
censing update approval resolution” by which it ex- of standardization in independent licenses?
ercised its option under the new GFDL.33
30 The problem is that trans-individual effects have to
27 Besides the fact that the whole migration pro- be addressed directly. Usually, emergent social ef-
cess was dominated by organizational actors (FSF fects are not lobbied for.37 This also holds true for
and WMF), what seems confusing is that the pro- licenses since these effects are not mirrored in the
cedure for changing policy rules was also applied individual interests of the licensor. Here a new idea
to the issue of license migration. Or, put more pre- comes into play: the idea of a steward or “fiduciary
cisely, amendment rules on policy rules were con- for the commons” who acts as a proxy for the pub-
flated with amendment rules on access rules. From lic. The GNU-GPL was created on behalf of the in-
the perspective of the distinctive concept of the net- numerable contributors to an open software proj-
work (as opposed to markets as well as to firms), this ect (and ultimately on behalf of the project itself!).
may seem awkward because it has to be considered This is underlined by the fact that the GNU-GPL is
that networks generally do not constitute bodies of program-independent. Similarly, Wikipedia’s insti-
collective action but just emerge from interaction tutional and technological infrastructure was set up
of autonomous individuals. However, the pressure by Jimmy Wales & Co. on behalf of the public. In
to collectivize the management of individual rights both examples the function of stewardship moved
in the Wikipedia network may indicate the need to from a charismatic individual to a foundation and
distinguish between different types of networks de- was thereby perpetuated.
pending on the grade of collective elements (but still
outside the framework of corporate law). The rea- 31 In the case of GNU-GPL, the FSF explicitly acts as a li-
son for a tendency to collectivization in Wikipedia cense steward (see § 9(1) GPLv2). The process of de-
seems to be rooted in the importance of commonly veloping version GPLv3 shows how serious it takes
built knowledge goods. this role. Before the new version was released in June
2009, the FSF held a public consultation in the course
of which four drafts were published and discussed.38
II. The idea of a fiduciary Developers have free choice to relicense their pro-
grams under the new version. If they do, users will
for the commons only be authorized to use the software under the
conditions of version 3 since its copyleft-character
28 There is an obvious tension between the individual- makes it incompatible with version 2. If they do not
istic baseline of a network of users and the necessity upgrade, the rights of the user depend on the word-
of creating and protecting the commons that nour- ing of the license notice. When it contains the “any
ish the project. The reason is rooted in the peculiar later version” clause, the user is left the option of fol-
kind of reciprocity the users must obey when they lowing the terms and conditions of either version 2
engage in the project. The individual user contrib- or 3 (§ 9(2)GPLv2, assuming that the new version is
utes without having the guarantee that others re- “similar in spirit”). When a program lacks this “in-
ciprocate. There is no obligation of reciprocity. Unlike direct pointer” – as does the Linux kernel – the user
in a partnership that is constituted by multilateral has no choice but to conform to the terms of version
contracts, in a network there is no explicit and en- 2. Relicensing Linux under GPLv3 would require per-
forceable obligation to promote a common purpose. mission from all the contributors involved – with
This puzzles not just the law but also economic the- hundreds of authors, each being a copyright holder,
ory.34 Some contend that participants benefit from this will be highly unlikely to be achieved even if the
“indirect appropriation.”35 In contrast, those who as- protagonists decide to do so.
sume (under a Humean approach) that other-regard-
ing preferences are fully capable of directly motivat- 32 In order to avoid this stultifying effect for existing
ing people regard the existence of peer production projects, the FSF requires each author of code incor-
rather as the result of a convention.36 But neither porated in FSF’s own projects to assign the copyright
point of view dispenses with answering the question to FSF so that relicensing can be done by FSF alone.
of who is taking care of the commons in a network. Like the “any later version” license notice, the re-
quest for assigning distributed rights to one desig-
29 In the beginning, it might be unavoidable – and nated copyright holder is a legal instrument that al-
even appreciated – that a single person takes ini- lows projects (!) to adjust their copyrights to future
tiative. Most likely nobody would have negotiated needs. Apart from the problem of migrating a project
the terms of the GPL. It was the quirky idea of Rich- to another license, copyright assignment to one cen-
ard Stallman: a true act of foundational sovereignty tral actor makes possible the enforcement of copy-
that was explicitly aimed at creating the conditions rights in a collaborative work with multiple authors,
for a knowledge commons. But how are the com- and it also helps to register copyrights in jurisdic-
mons being protected over the course of time? How tions where required.39 In contrast to non-FSF proj-
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Governance of Massive Multiauthor Collaboration
ects where FSF functions as a simple license steward, pedia’s licensing policy did not apply an explicit fi-
in its own projects the FSF assumes the position of duciary model.
a license fiduciary.
33 In the same vein but in a more generic approach, 1. License revision clauses
the FSFE developed a Fiduciary License Agreement
(FLA).40 As the FLA is designed to cover multiple ju- 37 So the only way individual authorization may have
risdictions under a single agreement, it lays down been obtained is through the GFDL. This would re-
that the developer grants an exclusive license on quire that FSF acted within the limits of both the
his work in countries where an assignment of copy- “any later version” clause in § 10 GFDLv1.2 and na-
right is not possible due to the droit d’auteur tradi- tional copyright law when it added the relicensing
tion. With this model agreement, developers of FOSS clause in § 11 GFDLv1.3 which conveys on the oper-
projects can assign their rights to any single per- ator of an MMC site the right to republish GFDLed
son or organization as fiduciary that returns a broad content under a CC license as well. The assumption
nonexclusive license to the developer.41 was twofold: first, that moving to version 1.3 of the
license was allowed under the “or any later version”
34 Indeed, not just independent foundations but also terms, and second that relicensing to CC-BY-SA was
major open source companies demand such assign- allowed by GFDL 1.3.
ments. Here the problem of copyright fragmenta-
tion in a distributed developer network is aggravated 38 The centerpiece of this strategy is the “future re-
because exploitation of code by means of dual li- vision” clause in § 10 that reserves FSF the right to
censing requires bundling of copyrights in a single publish new versions of the GFDL. A new release af-
authority that can dispose of the program as a com- fects the legal position of a copyright holder because
plex whole. The downside of such copyright assign- § 10(2) grants the user the option to follow the terms
ment to a commercial entity is the introduction of of either the new or the preceding license version –
an asymmetry in the relationship between the com- irrespective of whether open licenses are construed
pany holding the copyright and all other parties that as contractual licenses (e.g., under German law) or as
conflicts with the credo of FOSS to guarantee equal bare licenses (under U.S. law).44 Thus, by submitting
participation among users.42 a text to Wikipedia, an author has agreed in advance
to multi-license his work under the present and the
35 How did these instruments for overcoming the subsequent versions of the GFDL. Although the re-
collective action problems in multiauthor collab- licensing constructively does not take place before
orations work in the case of Wikipedia’s license the moment the user decides to use the work accord-
migration? ing to the new terms, it actually occurs at the time
the FSF publishes a new license version. Although it
seems quite unusual that the licensee is granted the
III. Wikipedia: Amending public right to change the conditions of the license based on
licenses in MMC networks the “proposal” of a third person (FSF), this is noth-
ing unknown to the law45 since – and to the extent
that – the third person was authorized by the licen-
36 As already mentioned, changing the access rules for
sor to make binding decisions on the content of the
a collaborative work generally implies the permis-
new license.46
sion of each and every single author. In this respect,
instruments of collective decision-making such as
39 With regard to the range of authorization, two as-
a vote among contributors cannot have any legiti-
pects in § 11 GFDLv1.3 seem problematic: (1) FSF del-
matory function.43 Even if there had been a higher
egates its authority to make changes of the license
rate of participation in the vote on the transition,
terms effective to another entity. (2) By making con-
myriad Wikipedia authors did not explicitly approve
tent accessible under a CC license as well, the new li-
the relicensing of their contribution under different
cense terms differ significantly from the GFDLv1.2;
conditions. Also, the Wikipedia authors did not as-
in fact, the very idea of the GFDL revision was to fa-
sign their copyrights to WMF nor did they provide
cilitate the migration to a new type of license.
a broad exclusive license that would have allowed
WMF to relicense all the articles. By submitting text 40 First, for the sake of foreseeability, the license agree-
directly to Wikipedia, the author grants a non-exclu- ment generally has to fix a specific license steward
sive license for reuse to the public. Thus, WMF, like whose identity is determined or is at least determin-
the rest of the world, only would have been able to able. But as long as the FSF itself determines the de-
exert the rights of a non-exclusive license, but these tails of relicensing – as was done in § 11 GFDLv1.347 –
rights do not cover the right to republish the con- the sub-delegation of the right to put into force new
tent under a different license. Generally, only the license terms to MMC site operators appears just as
copyright holder is entitled to do so. In short, Wiki- a part of the implementation procedure.
1 101 2010
Dan Wielsch
41 The harder question is whether the changes in common commitment of which is to promote the
GFDLv1.3 are covered by the revision clause of § 10 idea to “freely share in the sum of all knowledge.”
GFDLv1.2 – ultimately, whether the CC-BY-SA 3.0 li- Thereby the contributor should be aware of the fact
cense qualifies as a “revised version” of the GFDL. § that his work is part of and integrated into collab-
10(1) GFDLv1.2 requires that new versions have to be orative projects that are run by WMF (sic!) and that
“similar in spirit.” This abstract wording is boon and are set up to promote a specific goal (equal partic-
bane. On the one side it may be argued that inserting ipation in knowledge society) with specific instru-
§ 11 acted as a bridge of legitimation. For a signifi- ments (open access). This requires the author to ac-
cant group of GFDL licensors (i.e., the Wikipedia con- knowledge peculiar access rules that depart in some
tributors), the irrevocable publishing of material un- respects from the norms of copyright. In addition to
der GFDLv1.2 no longer assured “effective freedom” explicitly accepting an open license model, for in-
in creatively using their documents (cf. the pream- stance, each text is subject to editing without con-
ble of the GFDL) but amounted to a “license lock in” sent of the author.
that had the potential of impeding productive use of
the text. In this perspective, amending GFDLv1.2 by 45 Following the same rationale, interpretation of the
adding § 11 may indeed have saved the spirit of the terms of use may also presume implied terms that
former version. It restores effective freedom of use supplement the agreement in the interest of mak-
for the “locked” material by opening up the door to ing the objective of the Wikipedia project effective.
another open content license that also has a copyleft Thus, the fact that the terms of use did not explic-
as its core characteristic (due to the “share alike” re- itly provide for the possibility of linking Wikipe-
quirement). It is thereby ensured that any modifica- dia contributions to free content outside Wikipe-
tions also remain publicly usable. To any later actual dia is the very reason to fill in the gap. Relicensing
re-licensing of GFDLed material (as carried out by the in order to achieve license compatibility with other
site operator) then applies a slightly different test as open content is essential for expanding access to
the “similar in spirit” clause in GFDLv1.3 would have free knowledge. So the legal requirements for valid
to be construed in the light of § 11. prior consent have to be determined in light of the
fact that the author knew at the time of submission
42 On the other hand, the broad and open wording is at that he placed his work in the context of a collab-
odds with carefully drafting and interpreting limi- orative project with a peculiar objective having its
tations of scope in licenses that must be in line with own inner logic.
copyright.48 The licensor must be in the position to
recognize in advance which future use his work will 46 This approach gets support from a view that recon-
be subject to.49 At issue here are the limits of prior structs franchising and just-in-time networks in legal
consent. Where are the limits of valid authorization? terms as “connected contracts.” These business net-
The debate on GPLv3 showed quite plainly that even works pursue common projects, making use of coop-
similarity of spirit in one and the same license family eration between autonomous firms. As was shown,
can be a matter in question. The less obvious point specific network effects – that is, not when network-
is that dual-licensing is in the “spirit” of the original ing seeks to profit from simple scale or collectiv-
GFDL where the license added is crafted by a com- ization advantages, but rather when added value is
pletely different organization (CC). Which way out? sought by means of the facilitation of multilateral
communicative connections between network mem-
43 There seem to be two alternative legal construc- bers (information, cooperation, exchange) – can only
tions to overcome the uncertainty of individual au- be achieved when the stipulations of each bilateral
thorization: first, an interpretation of license/con- contract are dedicated to the securing of desired net-
tract that imposes elements of objective intention work effects.50 This results in a tangible reduction
on the license (or contract); second, a collectiviza- in private law autonomy within individual bilateral
tion of property rights that subjects the individual contracts. Various social coordination mechanisms
position to the authority of the group (such as in of an extra-contractual nature (e.g., mutual obser-
partnerships). vation, anticipatory adaptation, cooperation, trust,
self-obligation, trustworthiness, negotiations, en-
during relations) give form to the overall network
2. Objective interpretation of license order, leaving their indelible mark on each bilateral
contractual relationship.51 Connecting contracts in
44 By submitting text to Wikipedia, authors agree not networks means that autonomous bilateral legal re-
just to their text being licensed to the public under lationships are superimposed by emergent sponta-
GFDL and/or CC license but also accept everything neous orders, the peculiarities of which the law pro-
else in Wikipedia’s terms of use that are – unlike the tects through heteronomous obligations – ultimately
policies and guidelines – not subject to modification to be spelled out by the judge when he has to inter-
by the community. These terms require an author pret the contracts.52
to grant “broad permissions” to the general pub-
lic when contributing to “Wikimedia projects,” the
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Governance of Massive Multiauthor Collaboration
47 If the GFDL is classified as a contractual agreement replicate at the level of the encyclopedia as a linked
between author and user (such as under German network of articles. The main idea of this approach,
copyright law), these insights can be transferred to therefore, would be to fill in the governance gap of
Wikipedia’s license regime. The online encyclope- relicensing uncertainty in the network by simply
dia then appears as based on myriad connected con- substituting individual for collective authority.
tracts, each providing access to specific but linked
text fragments. In order to unleash and protect the 50 As a starting point, it has to be noted that copy-
synergies of cooperation among contributors, legal right law is ill-adjusted to cooperation among large
interpretation of the license terms may assume an groups of dispersed creators. This holds true for all
obligation of the licensor to agree to a relicensing national legal systems as they are historically orga-
that achieves interoperability with other free con- nized around the idea of a single centralized cre-
tent and thus promotes the semantic value of the ar- ative entity (a single person or a single corpora-
ticle network. At least, the law could protect the net- tion). The phenomenon of multiple authors is only
work synergies by assuming that the licensor would grasped through the idea of a joint plan: where the
act in breach of good faith when he refuses permis- work cannot be attributed to a single person, the law
sion for relicensing. makes recourse to a single plan. At the end, the law
is unable to consider the idea of distributed knowl-
48 Notwithstanding such legal strategies to justify a edge. The difficulties of grasping Wikipedia’s col-
compelling relicensing, the idea might be contem- laborative creativity under German copyright law
plated whether it would have been preferable to in- are symptomatic. The main provision for coopera-
clude an “opt-out” provision in the relicensing clause tive creation is sec. 8 UrhG that requires creators to
of the new GFDL. Such an option was indeed applied pursue a joint project leading to a coherent work.
in the case of relicensing images contained in Wiki- This does not preclude collaborations that are cre-
pedia.53 Here, a license migration template system ated successively. But in such cases, each partici-
was created and embedded at the end of each GFDL pant has to contribute according to a shared master
tag so that all existing GFDL images could be sorted plan.54 The individual contribution must be subject
both by bots and by humans to filter the ones eligible to some sort of collective intentionality. This usually
for relicensing. Additionally, copyright holders were results in a unitary product that can be exploited as
explicitly encouraged to dual license their content a whole. If these conditions are met, then joint own-
on their own initiative, either by adding a {{cc-by- ership among the authors comes into existence by
sa-3.0}} tag to the image description and changing operation of law. In consequence, the authority to
the GFDL tag to {{gfdl|migration=redundant}} dispose of the work is assigned to the collective of
or by replacing the existing GFDL tag with contributors.
{{gfdl|migration=relicense}} which automat-
ically appended a CC-BY-SA tag after the GFDL tag. 51 But the logic of Wikipedia’s evolution is different.
Presumably, WMF chose this way because images are In a distributed network, there is no master plan
not collaborative content but distinct stand-alone directing the individual actions. The bulk of copy-
works. They lack the peculiarities of continuous edit- rightable content in Wikipedia consists of many
ing and successive “re-creation” by the community. original article entries written by a single author
For exactly these reasons the opt-out strategy could according to his personal idea and innumerous de-
not be applied to the articles in Wikipedia. They are rivative works of the original contributions. Wikipe-
of a highly collaborative nature and are the products dians contribute their pieces voluntarily, whenever
of emergent networking synergies in the strict sense. and to whatever they personally deem appropriate.
Even if the gaps caused by the exercise of opt-out Even by considering that the legal prerequisites for
rights could have been filled by other contributors joint ownership in copyright are less demanding
in the course of time, an opt-out strategy would have than the criteria for regular joint ownership based
been incompatible with any approach that focuses on private partnership under the German Civil Code
on the protection of the productivity of the network. (where the partners must incur legal obligations to
promote the shared objective), Wikipedia authors
hardly qualify for joint ownership in the sense of
3. Collectivization of property rights sec. 8 UrhG without overstretching the idea of col-
lective intentionality.
49 A second approach could question the premise of in-
dividual property rights in the text corpus of Wikipe- 52 And even if they did qualify, what would be the con-
dia. At least each “article” could be viewed as a col- sequence with regard to the problem of decision au-
laborative effort. This would not necessarily deny thority? The governance regime of joint ownership
the existence of individual rights to a text fragment, in copyright is very rigid. The decision to publish
and especially the moral rights of an author would the collaborative work under a new license would
remain unaffected. But it would assume second order require permission of all of the co-creators. In order
“group rights” attached to the articles as instances to avoid this cumbersome and costly procedure, col-
of collective creativity. Such a construction would laborators quite often set up a private partnership
1 103 2010
Dan Wielsch
and stipulate that a majority decision is sufficient.55 of a group in which the individual member is actually
Such contractually implemented governance pro- dependent upon the rest and vice versa (e.g., for do-
cedures – that would be applicable to a relicensing mestic peace). In the first instance, the obligations
decision – are absent in the case of Wikipedia. Here, stated are not about taking into account the legally
unanimity would be required. So the idea to fill in the protected interest of other individuals, but to protect
governance gap in MMC networks by having a look the integrity of one and the same space of interac-
at statutory provisions for joint ownership does not tion that is inhabited by all of the owners. Similarly,
solve the problem. The default rules for joint own- the authors of Wikipedia “inhabit” a common space
ership in copyright law – even if applicable – redi- of shared knowledge. Legal recognition of the “con-
rect to the default rules for general partnerships in nectedness” of contributions then also would take
private law. A fruitful application of the legal notion place by assuming a special relationship (“rechtliche
of partnership would require an explicit multilateral Sonderverbindung”) that imposes restrictions on the
contracting for majority rules. But this just did not individual right holders in order to protect and even
happen in the case of Wikipedia. to promote the integrity of the emergent network
products. Obviously, this comparative reconstruc-
53 Interestingly, if we stay with the default rules for tion of Wikipedia resembles much more the indi-
copyright collaboration and partnership, we are re- vidualistic baseline known from the approach men-
ferred back to a well-known principle: according to tioned of seeing networks as connected contracts.
sec. 8(2) UrhG, a co-author may not refuse his per- Instead of drawing on any initial form of collectiv-
mission for republishing the work contrary to good ization, it rather starts from the individual positions
faith. The reasons to assume a breach of good faith and then tries to legally recognize the emergence
will be pretty much the same as in contract law: the of the network by making recourse to the idea of
decision to withhold relicense permission amounts sources for obligations whose legal nature is some-
to a frustration of the project’s objective. where in between contract and tort.
54 Finally, qualification of Wikipedia articles as “linked 56 In conclusion, at least in their present form, individ-
works” in the sense of sec. 8 UrhG also hardly seems ual as well as collective legal concepts have difficul-
possible. It is not only arguable whether the contri- ties grasping the special needs of open MMC proj-
butions could be exploited separately as required by ects to review their license regimes. Therefore, the
this provision. First of all, a legally relevant linking network type of cooperation must receive adequate
only becomes effective when the contributors con- legal recognition. Anyway, it is worth noting that
clude a partnership in the sense of sec. 705 German under both approaches a similar rationale seems to
Civil Code. Again, the copyright provision requires decide on the legitimacy of a relicensing.
a preceding act of collectivization that cannot be as-
sumed in the case of Wikipedia authors.
D. Legal governance of
55 Dismissal of all possibilities to deduce a group right
from copyright law does not mean that there is no MMC networks
legally relevant proximity between the right hold-
ers in Wikipedia articles. An example in which a le- 57 In order to find the basic elements a governance re-
gal system assumes obligations between indepen- gime for MMC networks such as Wikipedia should
dent holders of property rights is the German law consist of, two aspects have to be combined: one
on condominium, i.e., on separate ownership of in- is about a representative for the network’s access
dividual apartments in a multiple-unit building. Ac- rules, the other is about the principles this repre-
cording to the German Federal Supreme Court, the sentative shall observe.
legal relationship among the owners is to be qual-
ified as a community sui generis.56 The provisions 58 The main difference between a contractual and a
in the German Condominium Act spell out the legal group-right model pertains to the structure of deci-
consequences of such a special relationship and im- sion-making. The authority to dispose of the access
pose obligations on the personal property of each rules for the use of content relocates from the indi-
homeowner with the aim to guarantee an orderly co- vidual to the community. But to make collectiviza-
habitation of the multitude of owners in one and the tion operable, some form of representation of the
same building and to preserve the necessary com- group is necessary (even a majority rule is a form of
mon facilities (esp. sec. 13-15 GCA). In contrast to representing the decision of “the group”). The prob-
copyright law, the collective binding of individual lem of individual authorization then shifts to the
property rights under condominium law does not issue of representation. As some propose, “rough
build on any collective intention of owners to pursue and ready representation”57 may be sufficient in a
a shared plan, nor does it require a preceding agree- highly dispersed group of creators. So if the Wikipe-
ment to exploit their rights collectively; the multi- dia network of articles is reconstructed as consisting
tude of owners are regarded as a community simply of group rights, the vote conducted on the relicens-
by operation of law in order to facilitate inner affairs ing question may have provided the required “rough
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Governance of Massive Multiauthor Collaboration
and ready” consensus of the group. WMF then just cense steward may be under a fiduciary duty. The
acted as a manager for the vast group of Wikipedia true principal of this fiduciary relation would be the
authors who were represented by those users par- commons itself. In the case of GFDL, this approach
ticipating in the vote.58 even gets some support from the wording of the li-
cense text in which the FSF commits itself to issue
59 If we come around the other way, from the individ- only new versions that are “similar in spirit”, focus-
ual perspective, we touch on the limits of prior con- ing the required loyalty to the idea of effective free-
sent. The problem here consists in the actualization dom to use the published work.
of will against changed conditions. Again, the issue
appears as one of representation. Does the shift to 61 The license steward’s subjection to obligations may
a dual licensing represent the “old will” of the li- be justified by considering that hosting a public li-
censor? The discussion of license and contract law cense is a public function. After the author has pub-
demonstrated that any intent of the individual li- lished his work irrevocably under the terms of a pub-
censor has to give way to substantial objectiviza- lic license, the issuer of the license terms is the only
tion, either in the form of extensive interpretation one who is both legally entitled and in the factual po-
of the license, the assumption of implied terms, or sition to change the license conditions. The license
heteronomous networking obligations. In fact, the steward is the only authority who has access to the
only way for the individual to influence the modifi- perpetual publicness of the license. He can dispose of
cation of the license conditions substantively – in the the freedoms the contributors contracted for in the
sense of Hirschman’s “voice” – is to exert influence project. Having the authority to change the license
on the license steward who is exclusively authorized means being able to govern the structure of inter-
to change the standard terms. Standardization is ex- action among the project’s participants. Absence of
actly the price to be paid by an alternative to copy- temporal limitations in private acts is hardly known
right that is itself based on property rights.59 In the in private law (except for the law of foundations).
words of economic thought, the sovereignty of own- Private law usually presupposes limited periods of
ers is traded for the reduction of transaction costs. validity of contracts or of the bindingness of public
offers. The problems arising from public licensing
60 Indeed, both veins of analysis lead to the idea of a are grounded in the enterprise of re-constructing a
representative who takes care of the project’s ac- public domain with the help of private law forms. It is
cess rules. At first glance, it may be intuitive to vest crucial for the law to recognize this and to respon-
this responsibility in the group of contributors. How- sibly handle the public function of the license used.
ever, the model of collective decision-making seems
less convincing when the group of right holders is 62 In private law, the problems de facto standards raise
highly fluctuating and standards for a “rough and may come closest to the challenges of public license
ready representation” seem difficult to determine models. Under certain conditions, competition law
if not arbitrary. Authors whose rights are affected will apply the essential facilities doctrine with re-
may have contributed just once and a long time ago spect to the relevant product market, the access to
so that overall participation in a vote is likely to be which is controlled by the holder of the de facto stan-
very low. Most importantly, the copyright a con- dard. Competition law then may constrain the free-
tributor does acquire is not for private exploitation. dom of the right holder to refuse access and may
From the outset, an MMC author’s copyright in a de- even impose positive obligations to cooperate on
rivative work is “levied” through the copyleft for him which normally would require a contract. Simi-
the sake of public use and common knowledge. The larly, even though contractual relations between the
(public) license the copyright is subject to does not simple license steward and the project participants
seek to protect individual profit originating from are missing, the license steward may be subject to
direct reciprocity but rather a kind of “diffuse reci- duties that arise from his actual power to influence
procity”60 that can be regarded as characteristic for the behavior of the users. It becomes manifest that
interaction in networks. This public dimension of issuing a public license is equivalent to standard set-
the rights involved can be better accommodated by ting. Maintaining a public license (which constitutes
the bilateral approach because it counsels for a tri- a public good) is a public function. As indicated, this
angulation of the issue of representation. Consid- public function should be acknowledged through a
ering that the terms of the license constitute the fiduciary relation the license steward is subject to.
commons nature of the published work focus shifts
automatically to the steward of the license model 63 In such a fiduciary model attention of the law con-
applied. He could be directly bound to serve the in- sequently should shift to the question what loyalty
terest of the commons, much the same as manag- to the “interest of the commons” requires. First, it
ers are legally committed to act in the interest of seems reasonable to call for a good “corporate gov-
the company that can be distinguished from and is ernance” of the license steward. Entities acting as
emergent to the interests of individual sharehold- a license steward should provide strong and sta-
ers. Even where no formal fiduciary agreement ex- ble governance structures that include the major
ists (such as in the non-FSF projects) the simple li- players and that avoid the possibility of disruptive
1 105 2010
Dan Wielsch
change.61 From this perspective, independent foun- lic self-commitment to stay within the limits of § 10
dations seem preferable. Other than commercial en- GFDL. Yet it is up to the licensor and user to litigate
tities that act as license stewards (such as the major on the exact limits of the revision clause.
open source companies), foundations would have
no incentive to implement an asymmetric licens- 65 In conclusion, legal governance of MMC networks
ing model if copyright were assigned to them; they is a complex task. Governance of decentralized net-
would not be tempted to use their position as the works translates into a composite of organizational
formal holder of copyright and market the software and contractual elements. The entity of the license
under a non-free license in order to achieve compet- steward represents a new actor at the transnational
itive advantages. The problems can be found else- level that needs to be bound to principles of good
where: sustainable funding will be crucial to pre- organizational governance. However, the substan-
serve the foundation’s independence. Also the tial standards that guide the exercise of his public
governance structures of such a foundation have function to shepherd the public license issued are
to be absolutely transparent and permeable for cri- to be taken from private law. Here the principles of
tique. Due to the public function of a license stew- transnational private law deserve special attention.
ard, it might be useful to define the criteria an en- Legal governance of MMC networks meets the idea
tity must meet in order to act as a license steward. A of transnational private law – which in turn should
similar model already exists in the field of consumer open up to the peculiarities of social interaction in
protection law where directive 98/27/EC on injunc- networks. The production of global knowledge com-
tions for the protection of consumers’ interests de- mons is in need of a transnational law for networks.
fines a “qualified entity” that may bring actions for
an injunction against infringements harmful to the
collective interests of consumers. In summary, the
problem of network governance partially transforms * For instructive discussion I would like to thank Michael Grün-
into the question of good organizational governance berger, Klaas Eller, and Jürgen Fenn.
of the public license steward. 1 The Theory of Economic Development, 1934, p. 65.
2 These technologies include powerful personal computers,
64 Another main part of network governance in this standard design languages, representations, and tools; the dig-
itization of design information; modular design architectures;
sense is the compliance of the license steward
and low-cost any-to-any and any-to-all communication via
with the rules of private law. When drafting the li- the Internet. Cf. Baldwin & v. Hippel, Modeling a Paradigm Shift,
cense text, the license steward must carefully con- MIT Sloan School Working Paper, p. 23 (available at http://pa-
sider general principles such as transparency and pers.ssrn.com/sol3/papers.cfm?abstract_id=1502864).
certainty. In addition, the license steward shall be 3 This also calls for an adjustment of government policies as open
guided by those rules that apply to the relations be- collaborative innovation is social welfare-enhancing relative
tween the users of the license. For instance, the FSF to closed producer innovation. Policymakers should encour-
may indeed implement changes whose refusal by a age the new models – by providing a sound legal environ-
ment for them!
licensor would appear against good faith. This focus
4 Hetcher, Hume’s Penguin, or, Yochai Benkler & the Nature of
on the legal relations of those whose rights are af-
Peer Production, Vanderbilt Journal of Entertainment and
fected by the public license – the decentralized net- Technology Law 11 (2009), 963 (973), available at http://law.
work relations – seems essential to the public func- vanderbilt.edu/publications/journal-entertainment-tech-
tion of the license steward. Through § 10 GFDL, the nology-law/archive/download.aspx?id=4166; Lessig, Remix,
usage conditions for the work of the author are sub- 2008, p. 178.
jected to a dynamic reference to the current ver- 5 Baldwin&v.Hippel, Modeling a Paradigm Shift, MIT Sloan School
sion of the license. If the license steward exceeds his Working Paper, p. 16 (available at http://papers.ssrn.com/
sol3/papers.cfm?abstract_id=1502864).
power to release new versions because those ver-
sions are not “similar in spirit,” the new license ver- 6 Similarly, a “third way” has to be considered in order to ad-
just the traditional concept of property to accommodate dis-
sion is not authorized by the right holder and does tributed creativity. Cf. Merges, Locke for the Masses: Property
not apply to the use of his work. In consequence, the Rights and the Products of Collective Creativity, 36 Hofstra
user does not have permission to use the work ac- Law Review 1179, 1190 et seq. (2008), available at http://law.
cording to the new conditions. Litigation on this con- hofstra.edu/pdf/Academics/Journals/LawReview/lrv_issues_
flict would take place between the licensor and the v36n04_BB1-Merges.pdf (“What we are after is something be-
user. For example, the right holder would bring ac- tween the complete absence of an affirmative right, ... and a
full-bodied, full-fledged IP right. Something like exclusive (or
tion of copyright infringement against the user, ar- semi-exclusive) rights to be held by groups who exert collec-
guing that the work was used in a way not covered tive labor...”) [emphasis added].
by GFDLv1.2 but only by CC-BY-SA 3.0. The user, in 7 Cf. for example McGowan, Legal Implications of Open-Source
contrast, would claim to be authorized by the new Software, University of Illinois Law Review 241, 253 (2001),
GFDLv1.3 as published by the license steward. If the available at http://local.law.umn.edu/uploads/images/254/
user is defeated, the license steward is discredited. McGowanD-OpenSourceFinal.pdf.
Even though he cannot be forced to exercise his dy- 8 See infra III.
namic power to change the license terms in a spe- 9 Cf. Elkin-Koren, What Contracts Can’t Do: The Limits of Private
cific way, he would nevertheless run afoul of his pub- Ordering in Facilitating a Creative Commons, 74 Fordham Law
1 106 2010
Governance of Massive Multiauthor Collaboration
Review 375, 378 (2005), available at http://papers.ssrn.com/ 27 See http://www.gnu.org/licenses/fdl-1.3-standalone.html.
sol3/papers.cfm?abstract_id=760906. 28 Erik Moeller, Deputy Director, Wikimedia Foundation at the
10 Cf. Lessig, Re-Crafting a Public Domain, 18 Yale Journal of Law foundation-l mailing list, available at http://lists.wikimedia.
& the Humanities 56, 83 (2006). org/pipermail/foundation-l/2008-November/046996.html
11 Thus the social structure of OSS projects only appears as a (emphasis added).
„neither-nor“ when compared with the characteristics of the 29 http://www.gnu.org/licenses/fdl-1.3-faq.html.
market and the firm. When qualified as an institution of its 30 Erik Moeller, Deputy Director, Wikimedia Foundation at the
own the two-sided deficit turns into an „either-or“! foundation-l mailing list (emphasis added).
12 Cf. Teubner, Networks as Connected Contracts, 2008, p. 64 31 Wikimedia representatives always use the expression “sup-
(available at http://ssrn.com/abstract=1233545). port” instead of “legitimation,” which seems more adequate!
13 Cf. Wielsch, Zugangsregeln, 2008, pp. 211 et seq. 32 Erik Moeller, Deputy Director, Wikimedia Foundation at the
14 Cf. Alchian, Some Economics of Property Rights, Il Politico, 30 foundation-l mailing list.
(1965), 816 (818). 33 http://meta.wikimedia.org [Licensing update/Imple-
15 To be precise: in very big firms. Cf. Moglen, Synergy 5 (2006), mentation] or http://wikimediafoundation.org/wiki/
10 („If the GNU GPL were a firm, it would be the single larg- Resolution:Licensing_update_approval.
est software development firm in the world, far larger than 34 Under German law it is not easy to explain why the GPL
Microsoft.“, available at http://ec.europa.eu/idabc/servlets/ qualifies as a mutual contract. Under U.S. law the problem
Doc?id=23833). appears in a different form but is substantially the same
16 Cf. Benkler, There Is No Spoon, in The State of Play: Law, Games, (“consideration”).
and Virtual Worlds (Jack M. Balkin & Beth Simone Noveck 35 Benkler, Coase’s Penguin, or Linux and the Nature of the Firm,
eds., 2006), p. 247. 112 Yale Law Journal 369, 405 fn. 76 (2001) defines “indirect
17 Cf. Hetcher, Hume’s Penguin, or, Yochai Benkler & the Nature appropriation” as appropriation of the value of one’s effort by
of Peer Production, 11 Vanderbilt Journal of Entertainment means other than reliance on the excludability of the prod-
and Technology Law 963, 972 (2009), available at http://law. uct of the effort.
vanderbilt.edu/publications/journal-entertainment-tech- 36 Cf. Hetcher, Hume’s Penguin, or, Yochai Benkler & the Na-
nology-law/archive/download.aspx?id=4166, drawing on ture of Peer Production, 11 Vanderbilt Journal of Entertain-
Noveck, Democracy – The Video Game, in The State of Play: ment and Technology Law 963, 983 et seq. (2009), available at
Law, Games, and Virtual Worlds (Jack M. Balkin & Beth Sim- http://law.vanderbilt.edu/publications/journal-entertain-
one Noveck eds., 2006) p. 258 (“There is no account at all in ment-technology-law/archive/download.aspx?id=4166 (argu-
the legal literature about the relationship between technol- ing that collective-action problems are not synonymous with
ogy and collective action.”) the tragedy of the commons and should not be framed within
18 See http://en.wikipedia.org/wiki/Five_pillars_of_Wikipe- the limits of an iterated prisoner’s dilemma).
dia (“Wikipedia is an encyclopedia,” “Wikipedia has a neu- 37 Ladeur, Kritik der Abwägung in der Grundrechtsdogmatik,
tral point of view,” “Wikipedia is free content,” “Wikipedians 2004, p. 13.
should interact in a respectful and civic manner,” “Wikipedia
38 http://germany.fsfe.org/projects/gplv3/europe-gplv3-
does not have firm rules”).
conference.de.html; http://www.eolevent.eu/?q=fr/
19 Benkler, as cited in Hoffman/Mehra, Wikitruth Through Wiki- speeches2009.
order, 59 Emory L.J. 151, 161 (2009), also with reference to
39 Explicitly mentioned by the FSF in its FAQ.
the critics.
40 An overview of version 1.2 from 2007 is provided by van den
20 Wikipedia: Simplified Ruleset (“There is no strict set of rules.
Brande, The Fiduciary Licence Agreement: Appointing legal
Instead there is a set of policies and guidelines, the latter of
guardians for Free Software Projects, International Free and
which you can choose to follow. You might see people do
Open Source Software Law Review 1 (2009), 9, available at
things that are plainly not in accordance with these guide-
http://www.ifosslr.org/ifosslr/article/view/6/5.
lines, but which may still be well within the actual Wikipe-
dia policies.”) 41 A kind of reverse public licensing!
21 Available at http://en.wikipedia.org/wiki/ 42 Cf. Moody, Coming up with a Copyright Assignment Strategy
Wikipedia:Arbitration/Index/Principles. (http://www.computerworlduk.com/community/blogs/in-
dex.cfm?entryid=2708&blogid=14); Meeks, Some Thoughts on
22 The de facto and de jure policies were not in agree-
Copyright Assignment (http://people.gnome.org/~michael/
ment. Cf. http://commons.wikimedia.org/wiki/
blog/copyright-assignment.html).
Commons:When_to_use_the_PD-Art_tag/Straw_Poll.
43 For a different conception, see infra IV.
23 Cf. Hoffman/Mehra, Wikitruth Through Wikiorder, 59 Emory
L.J. 151, 194 (2009) citing a critic that complains “Wikipedia 44 These constructive differences result from broader differ-
seems only to enforce policies about conduct; policies about ences of the national legal systems. Anyway, both construc-
content are not enforced.” tions do provide for effective enforcement of open licenses.
See Jaeger, Enforcement of the GNU GPL in Germany and Eu-
24 Hoffman/Mehra, Wikitruth Through Wikiorder, 59 Emory L.J.
rope, 1 (2010) JIPITEC 34, para. 20.
151, 191 (2009).
45 In German contract law, § 317 I BGB is designed for a simi-
25 See Hart, The Concept of Law, 2nd ed., 1997, at 81 (“Under
lar situation.
rules of … the basic primary type, human beings are required
to do or abstain from certain actions, whether they wish to 46 Cf. Kreutzer, in: ifross GPL, § 9 notes 22 and 23.
or not. Rules of the other type are in a sense parasitic upon 47 Arguably, GFDL 1.3 sec 11 does not specify which SA license
or secondary to the first; for they provide that human beings operators of MMC sites can use for relicensing. From the per-
may by doing or saying certain things introduce new rules of spective of definiteness this may seem problematic. In fact,
the primary type, extinguish or modify old ones, or in various Wikimedia chose the “unported” license.
ways determine their incidence or control their operations.”) 48 For a recent example regarding public OSS licenses, see Ja-
26 Cf. Lessig, Re-Crafting a Public Domain, 18 Yale Journal of Law cobsen v. Katzer, 535 F.3d 1373, 1381 (Fed Cir. 2008) emphasiz-
& the Humanities 56, 77 (2006).
1 107 2010
Dan Wielsch
ing the need for a careful interpretation in line with copy-
right principles.
49 For a critique of the broadness of § 10 GFDL, see Hietanen, Wiki-
media Licensing Policy Change – A Conundrum (http://www.
wipo.int/wipo_magazine/en/2009/06/article_0004.html).
50 Cf. Teubner, Networks as Connected Contracts, pp. 74 et seq.
51 Cf. Teubner, Networks as Connected Contracts, p. 88 (“Inter-
nal network decision-making is simultaneously subordinated
to the contradictory demands of bilateral exchange and mul-
tilateral connectivity”).
52 As to franchise systems, a case study would be: German Fed-
eral Court of Justice (BGH), NJW-RR 2003, 1635, 1637 (“Apollo
Optik”) as summarized in Teubner, Networks as Connected
Contracts, p. 86. The Court found a franchiser to be under an
obligation to pass on networking advantages such as purchas-
ing advantages to the franchisees.
53 http://en.wikipedia.org/wiki/
Wikipedia:Image_license_migration.
54 Cf. German Federal Court of Justice, GRUR 2005, 860 (862)
„Fash“.
55 The same strategy is often chosen by a collaboration of mul-
tiple performing artists who try to avoid the unanimity re-
quired by sec. 80(1) UrhG.
56 German Federal Supreme Court, BGHZ 163, 154 (172)
57 Merges, Locke for the Masses: Property Rights and the Prod-
ucts of Collective Creativity, 36 Hofstra Law Review 1179, 1190
(2008), available at http://law.hofstra.edu/pdf/Academics/
Journals/LawReview/lrv_issues_v36n04_BB1-Merges.pdf.
58 The minimum of 25 edits required by an author to participate
in the vote corresponds to Merges’ suggestion to limit repre-
sentation to “the most active contributors.”
59 Cf. Elkin-Koren, What Contracts Can’t Do: The Limits of Private
Ordering in Facilitating a Creative Commons, 74 Fordham Law
Review 375, 378 (2005), available at http://papers.ssrn.com/
sol3/papers.cfm?abstract_id=760906.
60 Cf. Weber, The Success of Open Source, 2004, p. 150
61 Cf. Moody, Coming up with a Copyright Assignment Strategy
(http://www.computerworlduk.com/community/blogs/in-
dex.cfm?entryid=2708&blogid=14).
1 108 2010