DOKK Library

Governance of Massive Multiauthor Collaboration

Authors Dan Wielsch

License CC-BY-SA-3.0

                                                       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,

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.

This article may also be used under the Creative Commons Attribution-Share Alike 3.0 Unported License, available at http://

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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    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

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    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

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    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.

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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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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

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    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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    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         
   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-      
   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
   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-    
   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
   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

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                                        Governance of Massive Multiauthor Collaboration

     Review 375, 378 (2005), available at            27 See
     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
   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                             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 [Licensing update/Imple-
15 To be precise: in very big firms. Cf. Moglen, Synergy 5 (2006),              mentation] or
   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                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.                   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-         
   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                     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
   does not have firm rules”).
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-
   lines, but which may still be well within the actual Wikipe-
   dia policies.”)                                                           41 A kind of reverse public licensing!
21 Available       at                     42 Cf. Moody, Coming up with a Copyright Assignment Strategy
   Wikipedia:Arbitration/Index/Principles.                                      (
                                                                                dex.cfm?entryid=2708&blogid=14); Meeks, Some Thoughts on
22 The de facto and de jure policies were not in agree-
                                                                                Copyright Assignment (
   ment.    Cf.
                                                                             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).

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                                                                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.
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.
54 Cf. German Federal Court of Justice, GRUR 2005, 860 (862)
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
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
60 Cf. Weber, The Success of Open Source, 2004, p. 150
61 Cf. Moody, Coming up with a Copyright Assignment Strategy

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