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.
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.
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.
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.
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.