Lab updates section 2.3 of their Terms of Service – will it calm doubts?

Update, July 20th: My personal opinion on this update.

Update: For a legal view on this update, you might want to chack Vaki’s (also known as Agenda Faromet) blog post on these changes.

On Wednesday July 16th, Linden Lab updated section 2.3 of their Terms of Service and issued a blog post on the matter, indicating the update is an attempt to clarify the Lab’s intent with regards to user content in Second Life.

The changes to Section 2.3 come in the 5th paragraph, commencing “Except as otherwise described”. For ease of reference, I’ve reproduced the paragraph as it read in August 2013 and how it now reads in July 2014, with the updated text highlighted.

August 2013:

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. You agree that the license includes the right to copy, analyze and use any of your Content as Linden Lab may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service. The license granted in this Section 2.3 is referred to as the “Service Content License.”

July 2014*

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, modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and sell, re-sell or sublicense (through multiple levels)(with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service), 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. You agree that the license includes the right to copy, analyze and use any of your Content as Linden Lab may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service. The license granted in this Section 2.3 is referred to as the “Service Content License.” 

(* Note that when initially issued the clause “sell, re-sell, sublicense (through multiple levels)” was accidentally repeated in the July 2014 version of the paragraph, a point I alerted the Lab to on reading the updated ToS, and which they subsequently fixed. The paragraph quoted above is the corrected one, with the repetition removed. So if you had to accept the ToS twice, that’s the reason.)

While this may be an attempt to clarify the meaning and intent of the ToS, I cannot help but question it’s overall effectiveness – although I do so with the clear statement that I am not a lawyer, so this is simply unqualified opinion.

Yes, the revised wording does apparently set out limitations, but the context in which this is achieved seems to be confusing.

Agenda Faromet explained during the Legal Panel discussion on the matter in October 2013 as to why terms such as “sell / resell” aren’t perhaps the issue in a legal context (see her comments here), but the lack of limitations on any assigned right are. Yet, within the revised ToS, the way in which the limitations are presented parenthetically might be taken to mean they only apply to the matter of “sell, resell or sublicense (through multiple levels)”.

Moreover, the limits as stated, would appear to stand in contradiction with a further clause in the ToS which was introduced with the August 2013 changes, and remain unaltered with this update. To wit: that LL can “otherwise exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever”. Hence, to the untutored eye, it is actually hard to discern what the Lab is in fact saying with this update, or what they are actually addressing.

Whether this apparent contradiction, if it is a contradiction, affects how the update might be legally interpreted, I leave for minds wiser and better qualified than mine. But given the wording “for any purpose whatsoever” with regards to how SL content might be used did give rise to considerable angst when it first appeared in the August 2013 ToS, I do wonder if its continued presence will remain a cause for concern among content creators.

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39 thoughts on “Lab updates section 2.3 of their Terms of Service – will it calm doubts?

    1. Ciaran Laval

      They should not be opening that can of worms at all. That could get very messy, very fast. However parts of the TOS do suggest that they are thinking about doing this.

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    2. Tali Rosca

      When SL2 was announced, the August 2013 update made a certain sense: They wanted to be able to migrate some items, but they didn’t want to tip their hand about SL2 back then; hence the vague “for any purpose” (even if that still was overbroad and probably could have been worded to cover both in other ways). With SL2 out of the bag, I expected/hoped that they would replace the “for any purpose” with a specific reference to the products they wanted to use the content for.
      Obviously, that was me being naive.

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  1. Pingback: Second Life Terms Of Service Updated But Has Anything Really Changed? » Ciaran Laval

  2. Qie Niangao (@QieNiangao)

    I’ve always claimed that this should be simple to fix, given just a bit of attention. How much attention does it really take to keep from repeating a clause in one of the few places where changes are made? Typos happen, but at this point it’s hard to tell whether these terms represent intent or glossolalia.

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    1. Inara Pey Post author

      I’m frankly disappointed. The lack of limitations in terms of scope, duration and pupose was raised time and again in reference to the August 2013 TOS changes and by many different concerned users – yet there it effectively sits, as large as life, unchanged.

      Liked by 1 person

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  3. isfullofcrap

    TOS: “on the Service as permitted by you through your interactions with the Service”
    BLOG: by requiring some affirmative action on your part in order for us to do so.

    What is the affirmative action? (and will residents at Michigan colleges be prohibited from this? – heh, just kidding.) Uploading the content? Posting the content in chat? Reading it over Voice?

    If that’s the case, then nothing has changed at all.

    -ls/cm

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  4. Gwyneth Llewelyn

    I’d say it’s better to have LL show their willingness to change things — even spelling mistakes, copying sentences twice, etc., as you pointed out to them — instead of stubbornly refusing even to admit that there is ‘an issue’.

    Sure, I would also prefer a more deeper revision, but, like you, I’m no lawyer, and I will also wait to see what content creators have to say about this small change.

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    1. isfullofcrap

      Well, Gwen, I’m a content creator. I’m a writer. And my original work has value both in SL and RL. And this update changes nothing. I will continue to refrain from posting the text of my stories in chat, making textures or notecards out of them, and vocal performances expose only that particular vocal performance. And I hope that every self-respecting writer, spoken-word venue owner, and writing event host to think carefully before exposing their work until ToS 2.3 is restricted properly.

      -ls/cm

      Liked by 1 person

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    2. Tali Rosca

      To explicitly keep the “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” clause after revising the wording is not a “spelling mistake”.
      That sentence was the root cause of the outcry, and they have now doubled down on it.

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      1. Mona Eberhardt

        What makes it worse is that, although they addressed exactly nothing at all, they went and posted a pompous, self-congratulatory announcement in which they claimed they did what they clearly didn’t do.

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        1. Tali Rosca

          Yes, that really irks me. The previous blog post about Skill Gaming was not exactly a paragon of truth either.
          I have a feeling that it’s Ebbe/LL controlling the narrative by simply refusing to even acknowledge any other version than the one they construct in PR releases. His comments during the Educator’s panel also made it sound like there had been no mention of any problems with the ToS at all, so obviously, LL can’t fix something they don’t know about. This seems to now be the official version of events, as published by LL.

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          1. Mona Eberhardt

            In the Educators’ panel, something that made me raise an eyebrow was when Ebbe indicated that he didn’t know how long it takes for an academic institution (or any kind of public service) to make funding decisions. He was surprised when he was told it takes a year.

            This shows a disconnect between his experience and the way decisions are made in the public sector, which I found surprising.

            Getting to his comments re: ToS in the Educators’ panel, again I was surprised. Seriously, no educator told LL that such ToS would not sit well with researchers? OK, SL’s engine is unsuitable for the kind of simulation you’d do with PTC Creo, Dasault CATIA, SALOME – hell, even something as primitive as FRANC3D. But still, if SL’s engine was capable of even the most basic Finite Element Analysis, with the “in any manner whatsoever…/for any purpose whatsoever”, I’m not sure how many researchers would do something in SL.

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            1. Tali Rosca

              Teaching is bad enough, even before getting to research. Upload some material or report to show to an inworld class, and *bam*, LL is now legally the publisher in any media.
              No, LL will probably “not steal your content like that”, as Ebbe’s standard reply goes, but that doesn’t change the fact that you can’t reassign rights like that. (And *we* are simply not legally allowed to do so, no matter what LL promises us they will or will not use it for).

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              1. Mona Eberhardt

                Yes. Which is why both Inara and I have kept pointing out that these over-reaching clauses put people in the untenable position of being asked to assign rights they have no authority to assign.

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                1. Tali Rosca

                  And Ebbe/LL completely refuse to even comment on that aspect, always falling back on “LL is not in the business of stealing your content”. I would love if somebody could corner him and get him to explain what he thinks the legalities around this is, without letting him get away with the canned standard (non)answer.

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                2. Inara Pey Post author

                  Actually, as a point of clarification, you can’t assign rights you don’t have the right to assign.

                  Liked by 1 person

                3. Tali Rosca

                  Yet we’re required to “warrant that you own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to use and authorize Linden Lab and users of Second Life to use the Content in the manner contemplated by the Service and these Terms of Service”, which puts the legal responsibility on us.
                  Essentially, LL is saying, “Oh, just lie and break the license you got the material under. We’ll not do anything with it, so you’ll probably not get caught”.

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                4. Mona Eberhardt

                  The operative word is “necessary” – please note it.

                  Now, besides the appallingly over-reaching “in any manner whatsoever…/for any purpose whatsoever” bit, LL has always been pretty clear w.r.t. what rights you need to grant it so that SL can work. From that point on, it’s up to you to decide, and it’s also up to you to study the EULAs of various stock content providers to see if they’re compatible with SL specifically, and virtual worlds in general.

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                5. Tali Rosca

                  Yes, but in this wording, necessary for “these Terms of Service”, not “for SL to function as you expect it to”.
                  There is no doubt that as a hosting provider, LL needs the whole litany of “reproduce, reformat” etc. As long as it is just “for the purpose of providing the service”.

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                6. Mona Eberhardt

                  And promoting/advertising it. It’s still utterly unclear why they need such over-reaching language. It baffles me. There are a few options I can think of:

                  1. Creating new channels (Desura, perhaps?) for the users to sell their SL content. OK, fair enough. But wouldn’t it be more intuitive for them to enable users to sell to OpenSim grids, whose content is technically similar to SL’s?

                  2. Transferring user content from SL 1.0 to SL 2.0 or whatever else they end up calling it. OK, but that’s a huge can of worms, as Ciaran has already pointed out. It’d be better if they set up a different, ad hoc and per-case mechanism.

                  3. Hosting SL’s servers on outside data centres? They’ve been doing this for quite some time now, employing Amazon’s cloud services, and they hadn’t needed a change in their ToS.

                  4. Selling SL to a different company at the end of its shelf-life? Opening its code and donating it to the OpenSim foundation?

                  Really, your guess is as good as mine. I can’t make much sense of it, even taking into account that this contract (since the ToS are a contract) covers all LL products and services.

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              2. Mona Eberhardt

                Something that needs to be said, though: if you present something in-world without going through LL’s servers, you’re not affected. how can you do that? YouTube. Music/web radio streaming. Two solutions worth considering.

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    3. Ciaran Laval

      Reading the blog post again it seems apparent that there wasn’t really a change in the terms many hoped for, it was just to highlight LL’s intent.

      That wasn’t exactly the issue people were most concerned about.

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      1. Inara Pey Post author

        In this respect, the update is a reflection of the Lab attempting to respond to the loudest amount of shouting going on concerning the August 2013 changes. Which is actually a shame, as there were certainly various attempts to present the Lab with concerns over the more pertinent issues around the removal of all limitations related to rights granted, the ambiguity present in the August 2013 ToS update, etc.

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  5. Wolf Baginski

    As I recall, one of the alarm belkls which rang for lawyers last year was a clause allowing Linden Labs to act as your agent. With multiple-marketing of mesh, text, and other things being possible. could you trust LL not to send out DMCA notices to other customers of yours? But has that changed?

    Also, the new rules on skill gaming include an immediate demand to move such gaming mechanisms to full-region casino-like places that haven’t been set up yet, and for which Linden Labs charge extra Tier.

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    1. Inara Pey Post author

      There were initially two other concerns: the powers of attorney and the moral rights waiver; but most of the vocal concerns went on to focus on the “sell, resell” terminology. Neither of the other clauses has been updated.

      The Skill Gaming change was the subject of a separate blog post from the Lab released earlier in the month. I covered it (albeit briefly) at that time. It doesn’t come into force until August 1st, and server-side support for Skill Gaming regions was deployed to a RC this week (Magnum), and will doubtless be deployed grid-wide in advance of August 1st.

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  6. Pingback: Linden Lab tweaks terms of service - Hypergrid Business

  7. Imagin Illyar

    Here’s what bugs me. At some point the Linden Lab lawyer had to sit down with someone of authority at the Lab and explain why they needed this kind of clause and what purpose it would serve. At no point has anyone from Linden Lab done this for us. We are left to guess why and I find that more than a little suspicious considering all the discussion and derision that has occurred since the new TOS was introduced. I doubt that this slight change is going to do much to smooth things over.

    Liked by 2 people

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    1. Inara Pey Post author

      Agreed.

      A clear, concise explanation of why the terminology used and why the form in which it is presented has been determined as being the most suitable and how it assists the Lab in the execution of their role as the service provider would help. Particularly as for the vast majority of SL’s existence, and allowing for the broader remit of this ToS compared to those pre-August 2013, a more qualified statement with respect to the provisioning of shared rights has in the past always been deemed appropriate by the Lab.

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    2. Ciaran Laval

      The lack of open and transparent discussion has been a major disappointment on this issue. Obviously LL won’t want to alert people to certain reasons for the changes, but they should have been able to address some of the concerns.

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  8. Polaris Mourningstar

    If I read this correctly, this clause does three things.
    1. It relinquishes any responsibility from LL, when legal litigation arise.
    2. In preparation of the new platform, this clause gives the right to Linden Labs in transferring content from the current platform to the new platform, whether it was created by a Linden Labs or by a member.
    3. This sets the foundation for ownership of anything created by the intellectual property (e.g. open source code) of Linden Labs.
    For legal reasons, this was a shrewd move by Linden Labs. If all the content was created by other members, the new platform would need a foundation of development for the world. Core content would be needed for the new platform.

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    1. Mona Eberhardt

      The third part you can forget. It’s legally impossible and would never stand in a court of law for more than a nanosecond; plus, they don’t claim ownership of people’s content.

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