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According to a moderator statement in meta that I read, Stack Exchange claims a "license" on the answers and questions which a user has posted.

From a copyright standpoint can a claim be made or a DMCA takedown override this "license", whatever it is?

  • While you can't revoke the license, you are free to click the 'delete' button. :) Granted, high-rep users will still be able to see (and potentially undelete) the post. – reirab May 20 '16 at 0:40
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Users grant StackExchange a licence:

You agree that all Subscriber Content that You contribute to the Network is perpetually and irrevocably licensed to Stack Exchange under the Creative Commons Attribution Share Alike license.

That should be determinative, but there was also some question as to whether StackExchange users can be deemed to have agreed to these terms. For this reason, I'll also review some case law relating to what are known as "click-wrap" agreements where the terms are made available via a hyperlink.

In my opinion, StackExchange's way of displaying links to their Terms of Service during registration meets the requirements that have in the past been sufficient for courts to deem the user to have read and agreed to those Terms of Service. See for example, Schnabel v. Trilegiant Corp., 697 F. 3d 110 (2012), especially the section titled "Notice" for reference to other cases:

A person can assent to terms even if he or she does not actually read them, but the "offer [must nonetheless] make clear to [a reasonable] consumer" both that terms are being presented and that they can be adopted through the conduct that the offeror alleges constituted assent.

Specht v. Netscape Communications Corp., 306 F. 3d 17 (2002)1 frames the notice test in terms of a "reasonably prudent offeree" and whether they would "have known of the existence of license terms".

In Guadagno v. E Trade Bank*, 592 F. Supp. 2d 1263 (2008), the court found that clicking on an acknowledgement icon near an underlined, highlighted link to an agreement was acceptance of that agreement:

In the instant case, a highlighted, underlined link to the Agreement was directly above the acknowledgement box, along with notice that "The following contain important information about your account(s)." A reasonably prudent offeree would have noticed the link and reviewed the terms before clicking on the acknowledgment icon.

I think the most similar case is Fteja v. Facebook, Inc., 841 F. Supp. 2d 829 Dist. Court, SD New York (2012), although not at an appellate level.

In order to have obtained a Facebook account, Fteja must have clicked the second "Sign Up" button. Accordingly, if the phrase that appears below that button is given effect, when Fteja clicked "Sign Up," he "indicat[ed] that [he] ha[d] read and agree[d] to the Terms of Policy."

This is very similar to StackExchange's sign-up process:

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That court outlined a lot of case law and concluded that "Fteja assented to the Terms of Use and therefore to the forum selection clause therein".

A DMCA takedown could be successful if submitted by somebody other than the StackExchange user where that other party asserts copyright ownership in the contributed material. This could happen if a StackExchange user infringed copyright by posting material that they didn't have the right to reproduce.

1. Opinion authored by now Supreme Court Justice Sotomayor.

  • One might also argue that at least on some of the SE sites, users should be more knowledgeable than the average person about copyright law (e.g. Writing) and/or the fact that user-generated content is usually licensed in some way to the site operator (Software Engineering, Stack Overflow). "If the product is free, you are the product" is a somewhat well-known saying, after all. – Jörg W Mittag May 20 '16 at 0:33
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    actual subjective knowledge by the clicker hasn't played much of a role (if any) in determining assent – user3851 May 20 '16 at 0:56
  • This is an informative answer re agreement to the ToS, but skips over the issue of enforceability - some users might imagine the term unconscionable, for example. Some examples of similar terms being enforced might be interesting. Also, is "perpetual" truly never-ending? How does this interact with the "entire agreement" statement? There is no mention of CC-BY-SA or incorporated terms here. Does the licensing of content take place within this "entire agreement" or separate to it? Does the license survive termination or merely lack a time limit? IANAL - I'd be interested to hear how this works. – DeveloperInDevelopment May 20 '16 at 8:31
  • The cc-by-sa is explicitly mentioned in my quoted excerpt from the tos. Authors might retain an ability to revoke the licence under 17 USC 203 in a 5 year window commencing 35 years after the grant law.berkeley.edu/files/… regarding conciability, courts have upheld arbitration clauses or forum selection clauses in clickwrap contracts. – user3851 May 20 '16 at 8:52
  • Sorry, by "here" I meant at the point where the "entire agreement" statement is made: "This Agreement (including the Privacy Policy), as modified from time to time, constitutes the entire agreement between You, the Network and Stack Exchange with respect to the subject matter hereof". The Privacy Policy is explicitly mentioned again, but the CC-BY-SA is not, nor is there any catch-all mention of incorporated terms... re conscionable terms: but they wouldn't uphold a term selling the user into slavery or requiring them to commit a felony. I'm talking about the term not the clickwrap context. – DeveloperInDevelopment May 20 '16 at 9:22

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