ToS Changes: The “Desura connection” and a personal perspective

Upset over LL’s re-wording to their Terms of Service continues, with high-profile reports of some content creators of long standing opting to withdraw their content from SL, and another third-party content supplier forbidding the use of their items within Second Life.

Elsewhere, people are starting to point to a “Desura connection”, with Nalates Urriah speculating that the re-wording might be in connection with the Lab wishing to provide the means for SL content creators to sell content through Desura.

A possible “Desura connection” was actually first mooted in passing by Kuurus in a September 15th comment on this blog, after I obtained a statement on the ToS changes from the Lab. Kurrus’ comment in turn prompted me to take another look at Desura’s former Terms of Use (replaced at the end of August by LL’s ToS, but still available via  things like the wayback machine), to see how that handled third-party content. What was interesting here was that the wording in the Desura ToU bears remarkable similarity to that of the revised LL ToS, as I commented upon at the time. Specifically, Section 2 of the old Desura ToU stated:

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.

Desura's former Terms of Service included language similar to that found in LL's ToS
Desura’s former Terms of Service included language similar to that found in LL’s ToS

While the phrase “sell / resell” is notably absent from the above, the overall assignment of rights to Desura of any and all work uploaded to the Desura website (including forum comments, etc.), is actually very similar to those the Lab set-out in their revised ToS. Note in particular that Desura can reproduce and redistribute (aka give away and / or sell)  in any form, anywhere – a phrase which strongly echoes, LL’s own ToS statement that they can use content “for any purpose whatsoever”.

This clearly doesn’t negate concerns over the ToS changes or put anything to rights, nor am I suggesting it does. Rather, it suggests that the rewording of the ToS is a direct consequence of trying to merge two disparate terms of service / use, which has resulted in a clause which perhaps should have been more thoroughly considered in terms of implications rather than as an exercise in re-wording.

Following-on from my initial contact with the Lab about the ToS changes which elicited their original statement on the matter, and as a result of looking into the Desura ToU, I again wrote to the Lab on September 17th in an attempt to obtain further feedback from them on the matter. At the time this article went to press, I had yet to receive any reply.

Is the ToS Change Related to Making SL Content Available on Desura?

Determining what the Lab may or may not do isn’t easy. The company tends to hold its cards close to its chest on matter of future planning and directions. However, there are several points to consider when looking at the whole SL content / Desura angle.

For example, unless there are plans to curtail the Marketplace completely, one has to question whether such a move would actually be seen as worthwhile to merchants. The Marketplace may have its flaws, warts and issues, but at least it is directed at the audience most likely to purchase the goods on offer. As such, the effort in opening Desura to the sale SL content may not actually reap real benefit in terms of SL content creators actually using it.

Which is also not to say it shouldn’t perhaps be tried, if it doesn’t take-up too much effort. And who knows? In time, the Lab may well be looking towards moving away from a market environment which only allows content to be sold into one platform, and to one that allows them to potentially offer merchants the means to reach multiple grids. Again, not that this will happen overnight, were it to turn out to be a part of the Lab’s thinking.

Certainly, both Humble and Scott Reismanis, Desura’s founder, appear to share some grand ambitions for Desura’s future. I recently drew attention to quote from Humble on this, in an interview he gave to Gamasutra:

[We want] to make it the most open, developer- and user-friendly distribution service for all kinds of digital goods, starting out with games and mods and going from there. For us it’s a natural step… We’re about user-to-user transactions and empowering people’s creativity.

[my emphasis]

Scott Reismanis (Desura) and Rod Humble have expressed similar ambitions to grow Desura
Scott Reismanis (Desura) and Rod Humble have expressed similar ambitions to grow the platform

However, there is one big negative element here which needs to be considered, as was fingered directly by both Ezra and Iris Ophelia, commenting on an NWN follow-up to Nalates’ post. That is the potentially huge negative impact moving large amounts of SL-related content to the Desura platform would have on Desura’s current use base – and their existing niche market of indie games and game mods.

Leaving speculation aside, I remain dubious that thoughts of having SL content sold through Desura were foremost on people’s minds when re-working the ToS. It’s far more likely that Occam’s Razor applies, and that as mentioned above, Section 2.3 came about purely as a result of trying to merge ToS and ToU.

It’s All in the Words

At the time the Lab supplied their statement to me, I refrained from direct comment on it or the ToS changes, as I wanted the statement to stand on its own for people to read. However, my own feelings on the matter are somewhat divided.

On the one hand, I remain convinced that there actually is no underpinning nefarious intent on the Lab’s part in making these changes. Rather I am of the opinion  – to borrow from Tali Rosca – that the wording used in Section 2.3 is actually due to the influence of another razor, in this case one belonging to Hanlon (although I’d replace “stupidity” with “short-sightedness” in this case). But this doesn’t excuse the Lab from putting the matter to rights and more directly responding to the concerns of creators and content providers.

So on the other hand, I remain convinced that the Lab really should revisit the ToS and, as many others have also stated, remove the phrase that the Lab may use content from its products “for any purpose whatsoever” and replace it with the wording from earlier ToS versions, namely that content will be used “solely for the purposes of providing and promoting the Service.”

At a stroke this would undo much of the damage which has been wrought in further undermining people’s ability to trust the company. What’s more, it would not weaken their ability to manage any of their current platforms which support UGC; so there seems to be little in the way of seeing such a change made.

Actions speak louder than words: revisiting the ToS would help restore trust in the Lab
Actions speak louder than words: revisiting the ToS would help restore people’s trust in the Lab

Of course, it does leave the thorny issue of the Lab being able to “sell, re-sell and sub-licence” content. The Lab themselves explained this in their statement on the ToS changes by stating:

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.

Whether we like it or not, there is actually technical merit in this statement. It could, for example, be argued that the Lab is effectively acting as an agency when selling goods and services produced by others through its platforms and where dollar values (or their equivalent) are involved, rather than Linden dollar “tokens”.

Also, such a clause might help prevent the Lab from becoming mired in things like creator / creator confrontations which might end-up in court. While this hasn’t happened  to date, there have been two recent cases (Amaretto vs. Ozimals and Curio vs. Hush) which may have been enough to cause someone at the Lab to say, “Hey, while we’re at it, how about we put some clear water between us and any risk of this happening…?”

Even if either or both of these points is / are the case, though, it is hard to see why the Lab haven’t sought to introduce a limited agency agreement as a part of the additional policies which supplement the ToS. This would again more than likely satisfy all parties’ needs, remove any inflammatory reading of the term “sell, resell”, and have equal applicability across all of the Lab’s properties.

Perhaps the biggest issue here is that of trust. While I seriously doubt that the statement issued by the Lab in response to concerns about the ToS changes was written and supplied in anything less than a sincere desire to try to rectify matters, trust has nevertheless been damaged.

When this happens, the best way to repair such damage is to be seen to take action at the root cause. There seems little reason why suggestions such as those outlined above couldn’t be adopted by the Lab for the benefit of all, and do much to repair said damage. The problem remains as to whether the Lab sees that reason.

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10 thoughts on “ToS Changes: The “Desura connection” and a personal perspective

  1. Already, CGTextures banned use of their material in SL. Renderosity followed suit. This should have alarmed LL’s management already, because it’s not paranoid conspiracy theories by some content creators with delusions of grandeur. Such decisions came from sources that content creators actually use for making their virtual products and will certainly have an impact on the options SL content creators have. What next? Crestock? 123RF?

    Personally, I don’t believe in LL’s sincerity. If they were actually sincere, they’d have changed the wording right from the start. No, they wouldn’t have let it happen. But let’s say they fucked up (which they did). If they had any honesty or sincerity in their big, fat words about customer support etc, they’d have immediately recognised that they’re making things harder for content creators and that this can, in the long run, see content removed from SL, not because of “drama queen content creators, but because of DMCAs filed against content creators or because content creators will want to stay on the safe side and not risk a DMCA for possibly having used a texture or a model from sources that have banned usage of their content in SL.

    LL are being too arrogant to admit their mistake, too stupid to understand that their mistake puts its content-creating users at risk and too petty to correct it. What did they do instead? They had Mr. Gray issue a piece of PR fluff in the form of this canned statement, and then we saw Hamlet try to do some damage control, with completely bullshit articles where he basically tells us everyone is paranoid and that we should “believe” in LL’s good intentions.

    Well, even if I wanted to believe him, this attitude simply sucks, it’ll do a world of damage for LL in the long run (how the bloody hell does this company always manage to get in trouble when it just plain doesn’t have to?) and it’s going to make LL and SL look far, far worse than they already do, as I expect more stock content creators to start prohibiting usage of their content in SL.

    Also: How the hell did Desura get away with these terms for so long? Even the most draconian open source licences respect creators’ rights more than that.

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  2. The point you underscore quite well is also the very same point that has tripped Linden Lab every single time: Trust. Philip Rosedale, just like most every other starry-eyed techno-darling entrepreneur, never understood that Trust is an absolute necessity in establishing and maintaining a viable product/service. Thus his legacy, right on through to the current management, exhibits that same blind spot. Even though a majority of blogs, forum posts, comments and other forms of feedback use that word once if not multiple times, LL seems to either assume Trust is implicit or has a net-zero affect on the final result of the equation.

    Your main premise echoes my thoughts over the last few days, that LL made the change in a slightly misguided attempt to stretch one sock over multiple heads. We also agree they really should return to that effort and accept that one size never adequately fits all. In this case the dangly bits left hanging out could spell not only embarrassment but a rather substantial hit in income and future viability.

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    1. Yup, the change was always about getting a one size fits all ToS – hence moving the ToS to the Lab’s corporate pages.

      As to trust, as you and I can both point to, there has been a long and steady erosion going on over the years across all fronts (outside of this, the most recent example is perhaps the Marketplace, as you and I have oft discussed). I think the problem here is that of inertia; not so much with the Lab, but with the view they may hold that at the end of the day, while people may get upset over whatever change comes along, at the end of the day, people will still stick with SL rather than risk moving elsewhere. To a point, they’re right; but there is an old adage about camels, straw and backs; and while SL is still very much the biggest fish in the pond at the moment, Rod Humble’s desire to see more in the way of competition could actually end up rebounding badly as more trust continues to be eroded.

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      1. I’ll even take the analogy one step further: For the past few decades, companies have done everything they can to wring every last iota of value out of everything in sight. From Just-In-Time Manufacturing on down through cutting employee benefits and hours to the bone and just beyond. But LL seems to be blind to the fact that each of these hits, while not causing a complete stoppage of operations, does cause another decline in revenues, reputation, user retention, and Trust. You would think that with companies putting every transaction under an electron microscope, trying to find the most minute particle of profit, they’d be just as interested in protecting one of the highest reliability sources of income they have. In other words, yes the camel’s back is still intact, but that poor beast is walking a whole lot slower than he ever did in the past.

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  3. Quote:
    The Rose Theatre and Galleries has been an avid supporter of art in Second Life from it’s very inception nearly seven years ago. We are deeply concerned about this volatile change in the Second Life Terms of Service, which is an utter break of trust between Linden Labs and all content creators.

    Ernie Farstrider of EAST-WEST Galleries has offered up his Amphitheater to host a meeting of artists and all content creators to discuss this change, its effects and our consequent response.

    Please don’t think this doesn’t affect you because you are a “small” creator. Not my choice of word, but rather some of the responses I’ve heard. With the loss of Renderocity and CGTextures as resources for textures, we may well be seeing just the beginning of a full-scale protest against Linden Labs for this unconscionable action. When creators and third-party materials providers stop permitting uploads to SL, don’t think for a minute that you are not affected.

    As new work can’t be sold, tiers can’t be paid. Galleries will close, Stores will close. It is a domino effect.

    Imagine this. You are invited to display in a real life gallery. You’re so incredibly excited and you hang your work on the walls and have your reception and the gallery owner turns to you and says, “Oh, by the way, I own all of your work now. I have full rights to it to do with as I please. It is mine.”

    How would you respond to that? This is precisely what Linden Labs has done.

    Apathy can spell the end of this world as we know it. Come and be heard. Come and have a voice. Come and be a solution to the problem.

    ALL content creators are encouraged to attend. Please forward this to your groups.

    Kylie Addison Sabra, Curator
    The Rose Theatre & Art Galleries
    ===========================

    THE FOLLOWING FROM ERNIE FARSTRIDE

    WHAT: Special — “Emergency” — Discussion Meeting

    WHY: Second Life Terms of Service (ToS) Changes

    WHERE: EAST~WEST Amphitheater􀀁

    WHEN: Sunday, September 29, 2013 12:00 (noon) to 1:00 p.m.

    WHO: Anyone who now or intends to hold and maintain, import, buy, or sell User Content in Second Life.

    HOW: Principally by written chat.

    PLEASE: Be prompt and take a seat in the Amphitheater quickly.

    HOST: Ernie Farstrider, EAST~WEST~NORTH Galleries owner
    Gallerist

    Unquote!.
    no words to describe LL role in this mess!

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    1. I will underscore that CGTextures and Renderosity have *not* changed anything, and are *not* doing anything “in protest”. They are merely pointing out that the *existing* license they offer their resources under is incompatible.
      This is almost certainly the case with practically every other resource site, too, whether they have made an explicit statement about SL or not.
      The ToS requires you to “grant to Linden Lab […] the right and license to use […] for any purpose whatsoever” and to “warrant that you own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to […] authorize Linden Lab”.
      You *do not* have such rights to 3rd party materials. They are not yours to give away.

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