[Licom-l] Deleted Content

Mon Apr 20 17:11:09 UTC 2009

I believe the drafters of the GFDL (primarily law professor Eben Moglen)
knew that "publish" has a precise legal meaning that is distinct from
"making public."  I also freely concede they did not anticipate the issue of
"hidden" texts -- which probably means the drafters should be understood as
having been neutral on the question.

That said, I would point out that my interpretation is not only legally
defensible but also involves the least amount of thinking and juggling and
confusion with regard to implementation.

I would add that, in my view, text is "live" even if hidden, so long as it
is possible for some administrator to recover it be inspecting the database.

If we want to keep this simple, we won't overthink this based on edge cases.

--Mike

On Mon, Apr 20, 2009 at 9:30 AM, Robert Rohde <rarohde at gmail.com> wrote:

> On Mon, Apr 20, 2009 at 9:07 AM, Mike Godwin <mgodwin at wikimedia.org>
> wrote:
> >
> > I'm sorry for being unclear.  My answer in this hypothetical would be
> this:
> >
> > Whether the article is "live" or not is, in my view, orthogonal to the
> > question of whether it is part of the MMC that is being relicensed.  A
> > "dead" article, or an article that was scarcely viewed before it was
> hidden,
> > is part of the MMC by virtue of the fact that it can be restored at some
> > later date.
> >
> > The confusion lies in the conflation of the notions of (1) publication
> and
> > (2) made publicly available.  Although in common language, the two
> notions
> > are identical or close ot it, in legal terms they are analytically
> distinct.
> > Hiding an article for lack of notability (for example) doesn't make it
> > nonpublished. It has still been published, and you can't unring that bell
> by
> > hiding it. (Also, making the article available at all and having it exist
> in
> > the MMC database, though hidden, is still publication for legal purposes,
> in
> > my view.)
>
> I realize and accept that there is a distinction between being
> "published" (which may be a historical fact) and being "publicly
> available".
>
> However, my concern turns on the fact that GFDL 1.3 refers to a right
> for content to be "republished" under CC-BY-SA.  Perhaps the legal
> understanding is different from my understanding, but in order for
> content to be "republished" it seems like there needs to be a new (or
> at least ongoing) act of publication.
>
> The framers of the GFDL could have created a right to "relicense"
> content under CC-BY-SA, in which case I would agree that where that
> content currently resides doesn't matter.  But since they explicitly
> framed it in terms of being "republished" I am wondering whether or
> not it the license migration can be said to apply to content that is
> at no point live during the window of time for republishing under
> CC-BY-SA.
>
> -Robert
>
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