The Edge of the Creative Commons

As you may or may not be aware, last year I left TV Tropes (TVT) on unfriendly terms.  I may have been banned, but the feeling was certainly mutual.  I felt that the TV Tropes policy on keeping things "family friendly" had gone to a ludicrous extreme, eliminating academic discussion of things that made administrators and advertisers uncomfortable.  I was not alone in leaving TVT.  I was banned for noting that their "panel of people who determine what content is appropriate" is in fact a "Censorship Panel" -- but others just saw the way that the wind was blowing and left.

When I left, I wanted to leave open the possibility of forking the project, so I did a low-speed crawl of the website, that gathered up source pages, and did under 200,000 requests over the course of seven days.  I hadn't really planned on running a wiki, but I wanted to gather content before it was all censored and/or deleted.

At that time, the wiki had a message in the footer:

This wiki is licensed under a Creative Commons Attribution-Share Alike 3.0 Unported License.

That was before I told a forum that I had done a siterip.  Fearing that I might use this data to fork the wiki, the TV Tropes website unilaterally changed it's license to the CC-BY-NC-SA 3.0, adding the NonCommercial clause to the license.  Note that these are not compatible licenses -- CC-BY-SA derivatives must be CC-BY-SA licensed; CC-BY-NC-SA derivatives must be CC-BY-NC-SA licensed.  They never asked the wiki editor's consent to make the change.  This happened in July of 2012. 

I don't believe that this move was, in fact, legal.  The barrier to editing, the "Getting Known" page, was, in its entirety:

Being known on the wiki means that the software is aware of your wiki handle (user name). It reserves the use of your handle for you, and provides some services to known people that are not available to completely anonymous folks. Posting and editing are reserved for people 13 years of age or older. By posting or editing here, you are stating that you are at least 13 years old.
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(spaces will be removed)
Password:   
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Create Know-age!
You can also use this form to just set/reset your cookie on this machine, if you are already known. Put your handle and password in the boxes above and press:

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Looking over that, I never granted TV Tropes any rights to relicense content that I wrote.    I never granted them any explicit license, in fact.

I simply assumed, that as an editor of a wiki that displays a CC-BY-SA license, that my content would be distributed under those terms.  As the EFF notes, posting something online can come with an implied license to distribute the content under the terms stated on the website.  I don't dispute that.   I granted an implied license (and hereby explicit) to distribute all content I wrote on tvtropes.org under a CC-BY-SA 3.0 license.

But I did not grant them any ability to change that license.  And when you distribute CC licensed content outside the terms of the license, their license to use your work -- and all derivative works -- is terminated.

As I got around to launching a new wiki to compete with TV Tropes, these issues came back into the foreground.  People started asking if we could copy over content from TV Tropes.  And the answer was not "no, they're using a different license from us"; instead we told people "no, because we cannot be sure that the content is not copyright infringement".

This sparked a reaction over at TV Tropes.  Someone asked about the license in this thread.   Then, on On November 11, 2013, one of their administrators posted this on the Administrivia/Welcome To TV Tropes page: 

By contributing content to this site, whether text or images, you grant TV Tropes irrevocable ownership of said content, with all rights surrendered ...

We are not required to attribute content you contribute to you, nor do you retain ownership of anything you contribute. Anything you contribute may be deleted, modified, or used commercially by us without notification or consent, to the extent permitted by applicable laws. For that reason, we strongly recommend that you do not post material on our site, whether in text or image form, that you wish to receive commercial benefit from in the future.

Well...!  I definitely did not expect that.  The TV Tropes administration has the cojones to not only assert ownership over my writing and relicense it, they also claim the authority to delete the evidence of the deed.  I guess they already violated the ShareAlike clause, so they might as well violate the Attribution one as well.  All while claiming to be a site honoring writers.  This is beyond the pale.

I could just send a DMCA request, requesting that they take down all of the pages that I edited -- and all revisions thereafter, because they're derivatives of my work.  This is how CC-BY-SA works.  And, as I said earlier, the CC license infringement terminates the CC license.  Legal action by myself and my allies could take out a huge swath of the TVT wiki.  But I didn't start a wiki to get into the content deletion business, so this idea makes me very uncomfortable.

At the same time, they are violating the rights of hundreds of writers on the site, by claiming ownership without even telling them.  There is still nothing in user registration that announces their "we own your work, so don't expect to ever profit from it" policy.  The page editor says that the site has a CC-BY-SA-NC license, but do not actually ask users to place their edits under this license.  Users are never directed to any kind of Terms of Service.  They do The Wrong Thing at every step of the way.

So if I don't stand up for these people, who will?  If a website is allowed to transition from Creative Commons to private ownership, that undermines the entire structure of the information commons.

In fact, their actions undermine the stability of both of our wikis.  Because only got an implicit license to distribute content -- and make multiple claims about what said implicit license means -- it undermines faith in the older CC-BY-SA license that we use to distribute data.  All The Tropes' license could be held invalid because of the outrageous claims coming from TV Tropes.

The legal situation for TV Tropes, however, is far worse.  Unlabled mixes of CC-BY-SA and CC-BY-NC-SA content are copyright infringement.  Period.  If an editor agrees to relicense his content under the new license, that's legal.  If we transfer ownership to TVT, that would be legal.  But I certainly haven't done either, and neither have my colleagues at All The Tropes.  So all pages that I edited which are still distributed at TVT are infringing.  All editors of those pages may also be copyright infringers, because they release a revision under CC-BY-NC-SA.  The weird mixed licensing situation at TVT is simply not tenable.

All The Tropes and TV Tropes are in a Mutually Assured Destruction situation, and I don't see a way out of it.  I am not a lawyer; maybe it's about time I hired one.