ToS changes: “Never attribute to malice that which is adequately explained by short-sightedness”

Following the August 15th changes to the Second Life Terms of Service, and specifically the clauses contained in Section 2.3, many have taken time out to loudly and persistently proclaim that the wording is indeed deliberate and indicative that the Lab have darker desires on the content within Second Life (and their other properties) than they are willing to admit.

I’ve already pointed out in these pages that this needn’t actually be the case; that things might actually be down to a matter of the Lab trying to bring together their own Terms of Service with the Terms of Use previously employed by Desura. These latter, in their Section 2, contained wording remarkably similar to that found within Section 2.3 of the updated ToS. However, this point seems to have been largely ignored by those pointing to conspiracy theories and laying out an agenda of supposed intent on the Lab’s part.

But, even if I’m totally wrong about the Desura connection – and that could well be the case; God knows I’ve been wrong enough times in the past – does it really mean the Lab is awash with nefarious intent? Or did they simply take the easy option and boilerplate the updated ToS with scant regard for anything outside of the sections they’d identified as needing update (such as the inclusion of a revised dispute resolution section and clauses on updating the ToS?

In talking to an IP attorney over the past few days, I found myself pointed to a number of Terms of Service / Use documents which carry language largely identical to the Lab’s own. So much so that they look to have all been taken from the same boilerplate. Let’s look at some examples, starting with a refresher of the core element of Section 2.3 of the Lab’s ToS, with what have been seen as the key phrases of concern highlighted:

LL logo“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.”

Now compare that to GigaOM’s own ToS Section 2.3:

gigaomYou hereby grant to GigaOM, and you agree to grant to GigaOM, a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, unconditional, unlimited, worldwide and cost-free license to use, copy, record, disclose, sell, re-sell, sublicense, reproduce, distribute, redistribute, modify, adapt, publish, edit, translate, transmit, create derivative works of, broadcast, publicly perform, display or otherwise exploit in any manner whatsoever, all or any portion of your User Submissions (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or technology whether by any means and in any media now known or hereafter developed and to sublicense such rights through multiple tiers of sublicenses, and to advertise, market and promote the same.

Or if you prefer, you might want to compare it with the Terms of Service from Tribal Nova, who run ILearnWith:

ilearnwithYou hereby grant to Tribal Nova, 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), display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise use and 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 means 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.

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