In August 2013 Linden Lab issued a revised Terms of Service which was widely reported upon at the time, including within this blog.
Unfortunately, what seems to have been missed from the analyses of the revised ToS (including my own), is a substantial rewording of the section dealing with granting “Linden Lab certain licenses to your User Content”
Up until the August change, this section (then Section 7.2 of the Terms of Service) stated:
“You agree that by uploading, publishing, or submitting any Content to or through the Servers, Websites, or other areas of the Service, you hereby automatically grant Linden Lab a non-exclusive, worldwide, royalty-free, sublicenseable, and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content solely for the purposes of providing and promoting the Service.”
[my emphasis]
However, as of August 2013, the section (now section 2.3) has been expanded so that it now includes the following statement:
“Except as otherwise described in any Additional Terms (such as a contest’s official rules) which will govern the submission of your User Content, you hereby grant to Linden Lab, and you agree to grant to Linden Lab, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same.”
[emphasis again mine]
The difference in wording here has been the subject of forum discussions and blog posts, with users raising concerns over the change, specifically the emphasized phrases. I also received a number of IMs and note cards about the change over the weekend, particularly as a result of one supplier of images used for texture uploads to Second Life announcing they could, as of September 6th, no longer allow their work to be uploaded and used within the platform.
Rather than add to speculation already circulating, I contacted Linden Lab directly about the changes to the Terms of Service and the concerns being voiced. The Lab duly replied with the following statement, which I have been given permission to reproduce in full here:
“Recently we updated our Terms of Service to unify the existing terms of service for our various products into a single version. This updated version included a clarification with respect to the specific rights which a user grants to Linden Lab when submitting user-created content (referred to as the ‘Service Content License’) and, except as set forth in any related Linden Lab policies (referred to as ‘Additional Terms’), the right to ‘re-sell’ such user-created content.
“As previously indicated, the updated Terms of Service encompass a wide variety of Linden Lab products and services. We made every effort to incorporate Second Life’s existing policies in a distinct manner. We realize that the general nature of portions of the new Terms of Service may have led some individuals to believe, mistakenly, that Linden Lab was renouncing existing Second Life policies and practices or attempting to expropriate content created by Second Life residents. To that end, we want to further elucidate and reiterate our practice with respect to the Service Content License (and specifically Linden Lab’s right to re-sell user-created content) in Second Life.
“As an example, Linden Lab’s Second Life Mainland Policies (cited as “Additional Terms” in the updated Terms of Service) have long included Linden Lab’s right to “re-sell or otherwise alter abandoned parcels of SL’s mainland,” including, if and to the extent necessary, any user-created content incorporated into such parcels. Additionally, Linden Lab often acts as an intermediary between Second Life residents (for instance, in its capacity as the operator of the Second Life Marketplace) which necessitates that Linden Lab have certain rights (such as the right to re-sell) in order to effectuate such exchanges or transactions.
“As evidenced by Second Life’s extensive history, functionality and well-documented policies for providing a platform on which users can create and profit from their creations, Linden Lab respects the proprietary rights of Second Life’s content creators. We regret that our intention in revising our Terms of Service to streamline our business may have been misconstrued by some as an attempt to appropriate Second Life residents’ original content. We have no intention of abandoning our deep-rooted dedication to facilitating residents’ ability to create and commercialize such content in Second Life. In fact, we strive to provide Second Life’s residents with evermore opportunities to do so.”
Whether this is enough to quell concerns over the changes to the Terms of Service, or whether it is enough to be seen as acceptable to third-party sites providing content uploads (textures, etc.) to Second Life remains to be seen. However, I would like to thank Linden Lab for taking the time to respond to my request for clarification and feedback in the matter, and for permission to reproduce it here.
With thanks to Toirdealbach McDunnough and Carina Asbrink for initially contacting me about concerns circulating within Second Life about the ToS change.
Related Links
- SL forum discussion thread
- ToS Changes: The “Desura connection” and a personal perspective – September 28th
- ToS Changes: In-world meeting – September 29th
- ToS in-world meeting, September 29th: a personal perspective – September 30th
- Terms of Service articles in this blog
Inara Pey: Living in a Modemworld 
I do believe that adding, as already suggested “solely for the purposes of providing and promoting the Service” back, would clarify all a lot better!
LikeLike
Yup.
LikeLike
Seconded.
LikeLike
Agreed with ZZ. They need to clarify and correct the ToS so that there’s no confusion. A spokesperson going “oops” to a blogger (even if it’s a well-respected and trusted one like you) is not enough.
Until that’s corrected, any writer/poet in Second Life should think twice about putting their original content in a notecard, open chat, texture, or group messages. No, the Labbies are not going to make a fortune selling your crappy love poems in Klingon to a publisher or to Michael Bay to make the next $200 million summer blockbuster, but you need to cover yourself in this crazy digital age.
Thanks for tracking this one down, and hopefully the Labbies come to their senses soon.
-ls/cm
LikeLike
I agree completely. Part of the delay in pushing this out was whether I should add personal commentary or not. I opted against doing so, as I wanted to keep the Lab’s response clean and allow people to give their own feedback uncoloured by my views.
There is little reason why that single comment cannot be added back into the ToS – as it applies equally to all of LL’s properties covered by said ToS.
LikeLike
They can say what they want but as long as the TOS does not support their recent statement and still has the same wording, people will still be worried and websites will still not allow us to use their textures.
They have to put the old phrase back or nothing will change.
LikeLike
As I’ve kept saying, I really don’t think LL intends to suddenly turn around and sell everybody’s creations as stock art. As an individual creator, I am not particularly worried.
Nevertheless, the wording allows it, and is incompatible with every library license ever written. However much they blog their intention to play nice, legally, we (and 3rd party sites) have to relate to what’s written in the ToS.
LikeLike
I got an earful about this this last weekend. Personally, I think it’s much ado about nothing. The Lab isn’t interested in selling textures users upload to SL, period. This is just another case of lawyer CYA.
LikeLike
Try telling that to CGTextures and – possibly – other merchants of stock material. While it’s indeed a piece of CYA, its wording is confusing and can do more harm than good.
LikeLike
I’ll happily tell it to CGTextures. I think they’re being paranoid.
LikeLike
And you’d be right, but don’t expect anything to come out of your efforts. Truth is, the wording of this CYA is so poor that it already does more harm than good. Remember what you said about crypto? I’ll paraphrase it to talk about CYAs this time:
They’re very hard to get right and very easy to get almost right. And when you get them almost right, you’ve got them wrong and you’re harming your interests (and your clients’ interests) rather than serving them.
Remember, we’re talking about intellectual rights here, and this area is rife with prokanoids… We need more people like Glyn Moody.
LikeLike
I contacted CGTextures that were mentioned in Your post. They say that LL’s explanatory statement doesn’t change their position. So yes, LL really needs to act posthaste and rephrase that part of the ToS, because this is developing into yet another glorious PR fiasco, as it is quite possible that other creators of original content (textures, stock 3D models and whatnot) are likely to follow suit.
Needless to say, if the person that worded this paragraph of the ToS was in Moby’s crew, they’d be looking for a job now.
LikeLike
I wondered when people would talk about this.
I have talked to CG Textures over a few Emails and basically they have told me “Even if the smallest pixel of their photos exist in -your- creation, you can not use it within Second Life.” after showing them baked and rendered textures. After it all, I basically in short told them to refund my money left over from the account time I had left and that I will be getting my own DSLR camera, which I already ordered, to build up my own stock.
I am sure after a few weeks of being haggled, LL will change the ToS, say that it was too broad of some other issue and say it was for the service anyway.
But, it is simply silly to be held like this cause of their(s) and LL’s ToS. I would advise others to try and get their own camera(s) and work up on their stock if they are serious about creating. If CG and other photo stock/content creators are pulling this now, and revert it later when LL changes the ToS, they simply will again, or worse even more binding rules if someones ToS does awful things to their bowl “Cheerios”.
Only your own ToS applies if you take the photos or create the textures yourself. Speaking of that, wonder if there is any value in offering stock photos/textures to “aspiring creators” in Second Life for a small fee. Hmmm 😛
LikeLike
Agreed.
LikeLike
It would not take them long to revert the changes to the ToS if bigest part of the more popular creator base said “We dont agree to your new ToS. Please delete our Interlectual property within 48 hours or revise the ToS to where we maintain sole ownership of it or face legal action” It is a legal right to do so and if people did do so and LL did not revert the changes, they would face a mass exodus from players angry with the loss of money in the form of items brought, and followed by more content creators who no longer have an audience to sell to.
LikeLike
I don’t think a mass exodus is likely. Facebook sells your data to all sorts of spammers and now we know it gives them to the NSA and the CIA (I wonder if they do it for free, but that’s beside the point). That should have left it depopulated, with only crickets providing a solitary soundtrack. Did it happen? No.
LikeLike
That is on a completely different level and very very unrelated. In the highly likely event that what I suggested (none seriously by the way) did in fact happen, and 90% of your inventory disappeared overnight with none and never to be, any refund and no way to ever replace those items, Would you honestly just take it sitting down and carry on with you SL in a default avatar since there are no content creators?
LikeLike
Uh… Unlikely* Why did I type likely? O.o
LikeLike
Actually if you read the TOS carefully (and I have a few times now because of this) creators can remove their works from their inventory and delete their trash and it is specifically stated that other copies of the work out there are indeed “out there” and will not be removed. I am paraphrasing and not willing to go back and look this up yet AGAIN, but if you read through you will probably find it — and hopefully I am remembering correctly as it has been a VERY long week for me over this. So telling The Lab to delete your content would really do no good.
And honestly I doubt many folks would do that. The lawyers do indeed need to FIX this and all the blog posts and forum post and such are a step in getting them to do so. I am actually VERY GRATEFUL to CG Textures for pointing out what many of us did not see last month. Without their stance I doubt any of these conversations would have taken place.
There are two different issues going on. The stock texture use (and I do make mesh so I do — or have — used legal stock photos much changed as part of my layered ambient maps) is one thing; the right to do whatever they might with our work is indeed another.
LikeLike
Yeah, THere is a huge difference between “deleting your copy” and demanding they remove all copies from the server.
I am unsure how it works in the US, but I believe the US have similar protections to the EU where by if you receive a new copy of one of those “We withhold the right to modify blablabla this contract at any point” you can disagree with the new contract based on the fact it is not the contract you agreed on when first signing.
Even if the US does not have this how ever, Since the EU does, and LL openly provide a service to the EU (And there is no way they can say otherwise in their defence with VAT blatantly written on their account page for EU users) then we can exercise our statutory right and forcibly have them remove it.
As mentioned, it is a statutory right, thus something you can not just give away by signing a form. No court in the EU at least would allow the LL ToS change to take president and LL would loose a case if one happened.
Luckily for me, all of my content teeters half in SL and half out of SL meaning that if they did do something untoward (or tried to) nothing would work and if they tried to bypass and use my services without permission or license I could get them for unlawful access of my servers.
But then this is all speculation. My OP was non-serious, I have no intent on doing what I first mentioned, but then, as stated, I have protections I have put in place because, I wont say I was expecting this, but more like, surprised it wasn’t already in the ToS like it is in other virtual worlds. Which is something that put me off using them.
And I am done and hoping I did not start an argument. 😀
LikeLike
Translation, “We do not want to apply the terms in the TOS” What other reply is there but “Then change the TOS”
LikeLike
In light of their admittance that their TOS could be ‘misconstrued’ they surely have to change the TOS now or risk the ‘admittance’ it self being misconstrued.
LikeLike
The change from ‘solely for the purposes of providing and promoting the Service’ to ‘for any purpose whatsoever’ has no other possible legal implication than to allow Linden Lab to sell your creations and all parts of them outside Second Life. Any other possible legal interpretation of the current wording existed fully within the previous section 2.3. If their response to you had been sincere, it would have been offered alongside a notice of immediate revision to the Linden Lab Terms of Service. Period. Like every other creator in Second Life who’s aware of this issue, my uploads have ceased until there is a real answer from the Lab and concrete redress of the error, whether it was clerical or judgemental.
LikeLike
Intent is one thing. Letter of the Law is another. They still have not said, “we are not going to.”
But what troubles me more in their letter is this statement:
“Additionally, Linden Lab often acts as an intermediary between Second Life residents (for instance, in its capacity as the operator of the Second Life Marketplace) which necessitates that Linden Lab have certain rights (such as the right to re-sell) in order to effectuate such exchanges or transactions.”
They are NOT a reseller and the rights they are now claiming in the TOS have nothing to do with the Marketplace. Re-SELL implies they purchased first. That is not what they do in the Marketplace.
Via the Market Place they are a DELIVERY SERVICE and I’ll be gob smacked if UPS or the Postal Service or any other Service needs re-sell rights to deliver a product. They are acting as the AGENT.
Compare Itune’s TOS. They don’t need the right to resell.
In fact, look at this as an example:
“You acknowledge that you are purchasing the content made available through the iBookstore Service (the “iBookstore Products”) from the third-party provider of that iBookstore Product (the “Publisher”); Apple is acting as agent for the Publisher in providing each such iBookstore Product to you; Apple is not a party to the transaction between you and the Publisher with respect to that iBookstore Product; and the Publisher of each iBookstore Product reserves the right to enforce the terms of use relating to that iBookstore Product.”
http://www.apple.com/legal/internet-services/itunes/us/terms.html#GIFTS
LikeLike
Reblogged this on The Lionheart Times.
LikeLike
If you’ve got enough money to buy out other services, you have enough for a decent lawyer to write a TOS that states exactly what the intentions are. This isn’t an “Oops” moment, nor do I take the word of Linden Lab in insisting “Hey, we know it says everything the light touches is ours but we’re not going to actually use that clause or anything! It’s just one of those things…”
The problem here is that people are taking their spoken word for it versus what the actual TOS states, in some sort of good faith gesture. If you asked them “Well, if that wasn’t your intention, then why not just change the TOS to reflect that properly?” the answer you are likely to get is “We see no reason to change the TOS to reflect that… don’t you trust us?”
Oh no… I definitely do *not* trust them. These are all pages taken right out of the EA playbook, and it’s blatant. It wouldn’t get any more obvious if you installed a giant blinking neon sign over it and hired some fancy pyrotechnics for the occasion. Even then the situation would be akin to Rodvik standing there like a Monty Python sketch saying “It’s a little noisy… Pyrotechnics and neon lights? I dunno where you heard that silly rumor.”
It’s more than “much ado about nothing” because it’s a willful policy statement that you agree to in order to use the service, and that counts more legally than their off the record word spoken as an aside to the contrary, because the TOS overrules the speculative nature of spoken statements to the contrary.
I’ve heard the apologist views a little too often. Hey, Premium Accounts now offer all the things the community are already doing better but locked behind a pay-wall gated community! Surely it’s just a mistake… they’re team players with the community! Uh huh…
They wouldn’t neglect Second Life to put their efforts into video game projects, that would be silly! Uh huh… Oh look they’re on Steam… oh wait, no… they bought out Desura to make their own closed ecosystem. They’d never take away the educational benefits and charge them commercial rat- oh wait.
But at least the community can sell and tra- wait nevermind. Well at least we can rally together as a community to get things done on the JIR- oh wait. But at least the TPVs can be innovati- wait nevermind… they locked that down too.
C’mon, at least we can play well together with the OpenSi- seriously? They locked that out too?
The long-tail goal of all of these actions is to create an atmosphere of passive aggressive hostility toward original content creators to force their hands into leaving or relinquishing their rights to the content and services they provide. In the process giving Linden Lab unchecked authority to capitalize on anything and everything you do. The ultimate goal being that in order to treat Second Life like a game, they need to control it entirely. If you ever wondered why they are catering toward getting casual gamers into SL, it’s because casual gamers don’t put so much on their ability to create as they do to consume media. Those casual gamers don’t really care about those rights, or abilities that we as long time SL users came into the system knowing as a sort of constitution.
The changes to the TOS are nothing more than writing Linden Lab a blank check with the hearsay promise they aren’t going to use it.
LikeLike
Will Burns post says All!
LikeLike
“As previously indicated, the updated Terms of Service encompass a wide variety of Linden Lab products and services. We made every effort to incorporate Second Life’s existing policies in a distinct manner”
Maybe Linden Lab would like to qualify which services it intends to be allowed to sell, re-sell and exploit content from. I cannot see any of it’s other services e.g. Blocksworld, Patterns that would be happy with such restrictions either. This clearly needs further clarification in how this relates to other services and SL.
LikeLike
As has been pointed out, the easiest clarification would be the removal of “for any purpose whatsoever” from Section 2.3, and returning “for the purposes of providing and promoting the service”.
The latter term clearly has relevance to all of the properties / services covered by the ToS, and while there may well be legal arguments relating to the “sell / re-sell” statements which the Lab felt needed to by covered, there seems little direct reason for this specific change having been made.
LikeLike
This sort of total rights grab is so last-century. I wonder if their legal advice comes from somebody who even knows what Linden Labs provides. There was a time when this sort of thing was been done by sites where you could post your photographs, and there was, at that time, a huge grey area over the copying which needed to be done just to get an image displayed on your screen.
This has the feel of the same sort of blind, ignorant, fumbling by both lawyers and corporate management. And some people still struggle with the problem of deleting content from back-ups and such: I’m not sure you can store data without a limited perpetual license, not and keep the data safe and secure in the way that European laws mandate.
Of course, if we lose our data, we can ask the NSA for a copy. People like me are foreigners and totally exposed to the American government, without any legal protections. I am inclined to doubt that commercial law in the USA is any better.
LikeLike
Say this got blown miles out of proportion. By miles I mean orbital. As for your protections, if you are European, the EU Parliament could (and have done/threatened to do to others) have all LL owned IP addresses banned by all ISP’s in the EU..
Though, like I said… Orbital levels of extreme 😀 any way, how is that for legal protection?
LikeLike
The aspect I was referring to was a legal duty to keep data safe and secure, which means a business needs to have a decent back-up policy. The problem arises when somebody wishes their data removed from a service. Can it be removed from the back-ups without risk of affecting other data? A limited perpetual licence, to store the data. can cover that.
In the case of Second Life, we also have merchants selling items to other users of the service, selling a right to use data which depends on Second Life having a right to store the data and provide copies to users. This isn’t selling the data: Second Life is an agent, taking no responsibility for the delivery process even working.
I could get long-winded on this, but it sure looks like a grossly incompetent mismanagement of the process of getting legal advice, with a lawyer acting on imperfect knowledge of the operation of the internet, of Second Life, and possibly of the legal examples in this field. It may even be that Second Life, in so energetically excluding the idea of virtual property from their product, have run out of usable options. Look at the fuss over the US Government’s regulation of virtual currencies. How does it sound if they can say, “The L$ isn’t worth anything, and it used to keep track of game data which we control. Nobody is selling anything through Linden Research.” I don’t think that stands up, but I wouldn’t surprised at a connection.
Somebody who is selling stuff in SL should contact the EFF on this one.
LikeLike
It really does seem like an amateurish throwback to the days when hosting providers were casting about for a wording which legally allowed them to distribute and reformat your content without claiming ownership, but I had hoped we were past that by this decade.
It *could* be a throwback to the slightly more recent days when sites like Facebook made actual rights grabs to use your content, but I honestly don’t think so. Do not ascribe to malice what can adequately be explained by incompetence..
LikeLike
https://www.secure.europarl.europa.eu/aboutparliament/pt/petition.html
LikeLike
All good and well for those who sy its not that bad blablabla. But try to tell this to my customers. I sell patterns (rl) and show them to my customers through Secondlife. Served me well for 5 years But i already have one who said: When they own the pattern than we cant. So bye bye for me in time. I will get my items out of secondlife of all 3 accounts. Only renting out for me is left now.
btw anyone thought of this one too?…..Lots of us are using our content in other virtual worlds too, with this new policies Lindenlab can say ” we don’t want you to upload “our” content in competitive worlds. The more i think of it, the more i think that this is one of the reasons they do this too. And that they will enroll this rule in the future.
LikeLike
The latter at least is not an issue. You give LL *rights to use*, not *ownership of*. In no case have they any say over how you use it elsewhere; they just *also* have the right to use it. (The legalese there is “non-exclusive”).
LikeLike
no they dont say that…not yet. But they can. But if you buy an expensive pattern of me for a rl fabric. Would you pay the same money when you know that LL has “the right to use” it also?
LikeLike
Well, Barnowlgirl, I think the selling of patterns, templates, builder’s kits, and that kind of nonsense in the cancer that is killing the SL marketplace. Just sayin’.
LikeLike
Re-read what she said before you try and get snarky. If you do, you may realise how much of an idiot you look right now.
The words “rl fabric” kind of spell out that she isn’t doing what you are saying. Besides, they aren’t what is harming the marketplace. I believe the largest damage dealer is all the l$1-10 items that flood it and take the top spots leaving good quality items 10-20 pages in where no one actually looks.
But this is a completely different subject.
LikeLike
Thinking about it. I wonder how this effects things like coke-a-cola, pepsi and all the like with the logo’s people have uploaded.
LikeLike
And the use of streaming media, web on a prim, etc. I think they would be safe, they’re not uploaded to the service, but I am not an RIAA lawyer.
LikeLike
Referencing the web on a prim, I doubt they would have much luck proving they have resell rights to the Google search engine to the courts. As I am a scripter and nearly everything I do, I do through web on a prim is why I believe this clause doesn’t effect me a great deal. Even so, despite their response, the ToS is still pretty worrying, purely on how they chose to word it.
Over in the UK, Sales tax has a “0 rate” tax band that when it’s worded in conversation, it is worded “VAT free” the way the government refers to it is “No VAT” but all the paper forms refer to it as “0 rate” then if they feel like it they can make it what ever % they want. 100% if they want to.
Just sayin’
LikeLike
Please don’t talk about VAT where Linden Labs might read it. They already get confused enough about international payments.
LikeLike
Oh I know full well. LL really messed up with VAT. I sometimes wonder if the EU even gets their VAT payments from the users.
LikeLike
I’m from Romania and i have NEVER heard of a Linden Lab subsidiary or whatnot representing Linden Lab in front of the Romanian IRS thru which LL would PAY THE VAT it’s charching it’s romanian users. Romania is in the EU as well … and i bet that if you ask around LL doesn’t have any local entity in all the EU countries it has users from that would function as representatives of LL to the local IRS so LL could deposit LEGALLY the VAT it’s charging.
LikeLike
At one point they had an office in England and one I think in Germany. (I think it was Germany) Which was when they started doing the VAT. But they removed the one in England. I don’t know about the other one, but if they have, they should have stopped charging VAT. IMO they saw it as a nice profit increase.
LikeLike
This is a complete, and common, misunderstanding of EU tax legislation.
Under a 2002 EU directive any company providing electoronic goods and services within the EU, regardless as to whether it has a physical presence in the EU, is required to pay VAT.
As I’ve frequently said in response to comments on this subject, the fact that LL didn’t charge VAT for the first 2-3 years SL was in operation was because they opted to absorb the VAT charges themselves, rather than pass them on to users. When SL’s popularity reached a point where the company could no longer afford to do that, they revised their policy and passed on the VAT costs to users – which is, whether we like it or not, actually quite reasonable on their part, and in line with how most non-EU companies falling under this requirement operate.
So again, whether or not LL has offices within the European Union has absolutely no bearing on their olbigation to pay VAT, or on their ability to pass on VAT charges to customers living within the EU.
LikeLike
I am not a lawyer, and this needs to be treated carefully.
Section 11.4 – This Agreement and the referenced Policies are the entire understanding between us.
I think it would be hard to claim that the Lab’s statement above is included in “referenced Policies”. So how significant is it when push comes to shove?
(And don’t forget “referenced Policies”. I suppose that includes rules for the Marketplace, but what else? It does give them room to distinguish between “Services”.)
LikeLike
Oh, you don’t need to be a lawyer for that. LL has always been very careful to point out that blogs, letters and individual statements have absolutely no legal value and in no way affects the ToS.
LikeLike
Fortunately, the law isn’t always that black-and-white.
The fact is, they have made a statement, and they have done so through official channels, through duly-appointed representatives empowered to speak on their behalf. While they might well argue such statements have no bearing when compared to the ToS, it is possible (but equally by no means guaranteed) a judge / court might actually take a different view on things.
I’m saying this not in defence of LL (I would still much rather see the most sweeping, and without justification, change to the ToS removed and replaced with the original language), but to point out that while we / LL may see things in absolutes, it doesn’t necessarily mean a court will.
LikeLike
Definitely true. My comment was mostly directed at LL’s double standard here, in trying to clear up ToS issues in a channel they repeatedly themselves have said is not appropriate for it.
LikeLike
As was mine :), albeit a tad more indirectly.
LikeLike
Just a thought about the issue of “black and white” legal issues. As a good friend (who also happened to be my business attorney at the time) once told me: “it really is of no consequence if you are right or wrong when you file a lawsuit.” Eventually, if everything plays out as it is supposed to, the rightness or wrongness of each party will be determined. But to file a lawsuit one only needs the money to hire an attorney to submit the paperwork.
Now let’s assume Linden Lab has a point they wish to enforce that derives from the new language in the ToS. Their ability to pay the upfront legal fees is not in question; they have many on retainer and most likely even have direct access to the particular attorney that drafted that section. Furthermore they can dig really deep to continue paying the legal bills, something they most likely will want to do to protect their future abilities and rights.
Now put the shoe on the other foot. Suppose you feel that Linden Lab has gone against their “intent” as stated in their reply to you Inara. Do you have the ability to file suit? Can you find an attorney that is: A) Willing to listen long enough and closely enough to determine if they stand a chance of winning, B) Has enough faith in you and your pocketbook to undertake the effort believing that even if you lose, they will still get paid, and C) Able to comprehend the deeply controversial issues well enough to mount a viable case? I strongly suspect that very few private individuals have what it takes to meet those requirements. I also strongly suspect that even if you do have deep enough pockets and can prove that you will be able to pay for the attorney’s entire bill even if you lose, that you will not be able to find one willing to mount a lawsuit that could very well establish case law for many decades to come.
In reality this is a very VERY gray legal area and it will take some really powerful players with very big warchests to hash out what the law will eventually do and say. But will that happen with a lowly customer of Second Life vs. Linden Lab?
LikeLike
The issue here might be whether the ToS can still be construed as a contract of adhesion. Robreno’s holdings from the Bragg case indicated that it is – but also caveated that it might only be seen so as long as SL didn’t have comparable alternatives.
That was in 2007, when SL didn’t have any real alternatives. Whether the same might be said today is debatable, and I do wonder how much influence the caveats Robreno placed in his holdings had on Judge Ryu’s rulings in the more recent Evans et al case, wherein the major class action was denied (making it something of a pyrrhic victory rather than the “win” some commentators declared at the time) – if, indeed, Robreno’s holdings played a significant part in her deliberations.
If a court agreed the ToS is still a contract of adhesion, then potentially all bets are off as to its enforceability, and tort law might well apply.
We need Jason Archinaco to drop by with insight …
LikeLike
It looks to me like LL is consolidating it’s legal exposures across all of it’s business operations and corporate holdings. It makes me speculate there’s change coming at LL that will change it’s business model. As Will Burns mentioned earlier – AE did these types of things just before they took away the revenue value for the content creators.
I suspect this TOS change is a small piece of a bigger picture LL needed to impose, in anticipation of other changes. In the many years I’ve been reading, writing and negotiating software licenses, “right to use” agreements, and “terms of service” contracts (as a business owner, not a lawyer) – maybe LL needs unfettered access to content within SL to meet the conditions of an acquisition?
Just thinking out-load, but regardless – the new TOS terms are not good for those who sell content connected to SL.
LikeLike
My greatest concern and unlike others…is this http://lindenlab.com/products/desura
LikeLike
It seems to me like the change was in direct affiliation with the new Digital Distribution program they have acquired, meaning that all content becomes theirs to add to this library to be used with license at their behest instead of having to go through the artist.
Whether or not it will hold up in court is not the concern, whether or not the content is compromised is. It is hard to believe that this change in ToS came just before the opening of their Digital Distribution program, is just a coincidence…that is why all creators are freaked out and with this post should be even more…
The Answer is simple, the change to the “…providing and promoting the Service.” line and this concern disappears..otherwise it is a clear and open grab for artist content by SL IMO
LikeLike
I’d been waiting to see what happens vis. Desura & whether / when it will be pulled into the same ToS umbrella. As the time of the ToS change & for a period of time thereafter, it hadn’t happened – Desura was continuing with its own Term of Use. However, that has now changed as well, and Desura is firmly under the LL ToS.
As to the proposed wording change, I think it fair to say we’re all in agreement.
LikeLike
Oh, so Desura is now under the “LL can use your content any way they please” license, too. I wonder if the users and creators there have noticed that little detail, or if someone should drop a note on the forum there…
…Ah, I see Nalates is already there. http://www.desura.com/forum/thread/tos-change-linden-lab-owns-it-all
LikeLike
A possibly interesting point here is that the “old” Desura Terms of Use has language which is remarkably similar to that found in the revised ToS (with a couple of notable exceptions). To wit, in Section 2. “Use and ownership of user provided content”:
You expressly authorise and permit Desura to exercise and to authorise others to exercise all of the rights comprised in copyright and all other intellectual property rights which subsist in the Content and you irrevocably consent to all such exercises. Desura is not required to compensate you or any other person in any manner for any such exercise or authorisation. In particular, Desura may use, reproduce, modify, create derivative works from, distribute, transmit, broadcast, and otherwise communicate, and publicly display and perform the Content and other works which are based on them (including by way of adaptation or derivative works) in any form, anywhere, with or without attribution to you, whether or not such use would otherwise be a breach of any person’s moral rights, and without any notice or compensation to you of any kind.
[all emphasis mine]
LikeLike
Is Linden Lab for sale? This is the kind of legal dance that companies do to “harmonize” their structures before they buy, sell or merge. Who would buy SL?
LikeLike
No, their response to you is not nearly enough to quell concerns. I’ll not upload any more of my art to SL until this is resolved and as the curator of one of SL’s best-known galleries, this is no small decision.
LikeLike
So, you give full rights to LL to do with your content whatever they want to do, including make money off of your content. But at the same time they’re saying they won’t do that. Why have the clause in there to begin with?
Imagine you’re going to country X on vacation. Upon arrival, you have to sign a document that says that you will submit your vacation photos to the government at the end of your vacation, and give any and full rights (including to sell/exploit) to the government of country X or anyone they sell your photos to, without your consent and without informing you.
Then you have a representative of that country saying that they won’t do all of that, but you still have to agree to it and submit your photos, or else cancel your vacation. What would you do?
I can see purpose in granting some rights to LL, for instance in the case of abandoned mainland. But that doesn’t explain this move.
The thing is, this management is saying they won’t use those rights. But what if they change their mind later on? Or what if management changes (for example after LL goes public)?
Ask yourself if you want to continue sharing your copyrights with LL. That’s all I’m saying.
LikeLike
the reality here that a lot of people just don’t want to even really consider is that LL is lining things up to resell without a requirement to compensate the original creators because it would simply be a huge mess to try and figure out who they owed, what with all the builder kits sold over the years.
All my ex LL contacts say that LL’s monetary model changed two years ago and this is the one of the final steps. Some resigned over this – change the monetization that relied on user content without notifying that audience and their customer that the “game” objectives had indeed changed for them.
If you really don’t like this direction then it will take a legal battle that could well cost us Second Life’s very existence. Honestly, if they have to chose between dealing with us and a legal class action suit, or just shutting down and doing what they want, what do you think they’d do? This is their exit plan I think, because they’ve lost well over 50% of their island rentals since 2008. That means they probably are just breaking even. When it gets like that and the investors are the ones at the steering wheel they do what they see fit to as a business entity, and that is the squeeze out every last penny of value out of the company and then walk away.
In other words – if the clause is there its not there for your benefit. As Darrius put so well, this is about them making it easy for them to walk away with a big pay day and the users being blindsided out of their loyalty to not recognize it until its too late. Either way, if its a class action suit or the exit plan by the investors, its pretty clear they intend to use content they did not pay for and most likely have no intent on given creators any percentage of profits, never the mind sales. Have they sat down with creators and shown them the road map for how they play in their future plans? NOOOOO. Why? because its not in their best interests to do so.
Time to wake up folks. Time to cash in a move on.
LikeLike
The Lab has always been in a position to sell SL. It doesn’t require a change in the ToS in order for it to do so, and never has. Period. Anyone thinking otherwise has been labouring under a fairly large misconception. Similarly, any argument that content creators are somehow entitled to a share othe equity were LL to sell SL is also a misconception.
This is why talk of selling-off, “blindsiding” users and so on is pointless. Not only is it irrelevant when compared to trying to work with the Lab to redress the imbalances within the current iteration of the ToS, it’s also largely drawn from a complete misreading of the ownership of the platform, the user / company relationship with reagrds to platform ownership, and – dare I say it – a complete over-estimation of where the majority of the IP / monetary value lay within the platform. Which isn’t actually in the content.
LikeLike