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This is a transcript of the presentation given by Agenda Faromet at the August 2nd 2014 SL Bar Association presentation on the July 2014 Linden Lab Terms of Service Section 2.3 revisions and on the changes to the Second Life Skill Gaming policy.
This section of the transcript is focused on the changes to Section 2.3 of the Terms of the Service, and includes both the presentation and the main questions and answer session which accompanied it.
Again, as per the introductory notes, please note:
- The audio has been edited to remove pauses. repetition or asides, in order to better match the text transcript and allow those who wish to listen as they read
- There has been no intentional altering of anything said during the presentation and Q&A session, nor has the context of the presentation or answers been altered in any way, other than questions asked in text being the placed within the transcript at the point where they are answered (when compared to chat logs of the event), again for better context
- Only those questions asked in text which were directly addressed by Agenda have been included in the transcript in order to maintain context with the audio recordings.
Terms of Service Section 2.3 and General Introduction
00:44: What we’re here to talk about today is the recent policy changes in Second Life. The Terms of Service update which happened just a couple of weeks ago; and the skill gaming policy, which I’m sure many of you know has been in the works for the last six months or so, but was announced, I guess at the beginning of July.
00:22 What I’m going to do is, just to sort-of break this up a little bit, is I’m going to talk about the Terms of Service update first, and we’ll have a couple of questions about that, when I’m done talking about it, and then I’ll move on the Skill Gaming policy, because I know the questions about that are going to be pretty different.
0041: So ask questions throughout the presentation, but I’ll answer them when we get to the end of the respective parts.
00:49 Let’s talk about, just to recap, why people were actually upset about the 2013 Terms of Service, and “the 2013 Terms of Service” is how I’m referring to it, because the changes to it were implemented in August of 2013.
01:06: People were upset because the 2013 Terms of Service claimed too many rights. It was a very, sort-of a big rights grab. And when that was implemented, we saw a lot of content creators stop using Second Life as their medium of creation, people actually even left Second Life and some third-party sites like CG Textures or Renderosity, even restricted the use of their content on Second Life, and said, “you can’t use out stuff on Second life.”
01:46: People were upset because the Terms of Service was too broad and that it could be interpreted to be even more broad. I don’t interpret it this way, but the concern was that it could be even more broad. and there were concerns over derivative works of user content, such as machinima, that if you made a video of your own stuff on Second Life, that Linden Lab could have some claim to it, and that there were no limitations. That because the Terms of Service was written the way it was, and had no limits to it, that creators would lose control over the things they created in-world or uploaded to the world.
02:35: So, about two weeks ago, Linden Lab changed its Terms of Service. And when they did, they posted a big community blog post saying that they were really happy that they had “fixed” the problems with the Terms of Service, and they were really confident that they had made creators happy and respected creators’ rights. So I was very curious as to what, exactly they had changed.
03:04: This is what they changed, right here. So really, what changed? The words on the list of the rights that you grant Linden Lab changed order. That’s really the most important thing that changed. And also a parenthetical limitation was added.
03:21: And this is really important to understand, and when I say it’s important to understand, it’s because I don’t understand it, and I don’t think anybody that I know, that I’ve talked to, really understands it. I write Terms of Service for a living, and I don’t understand what they did here. And I think this is where we need to talk about what they did and why they did it.
03:47: So, the important thing was this parenthetical limitation. This parenthetical limitation is what they’re so proud of, that they put a limitation, because that is what a lot of people were asking for, was that the Terms of Service had no limitations, and that unlimited rights grab was really what bothered a lot of people.
04:19: And so by adding a limitation, they thought they had fixed the Terms of Service. And it’s very clear that Linden Lab’s leadership thought they had fixed people’s problems.
04:22: So let’s go back one slide, and let’s look at this parenthetical limitation. It says, “with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service” …
[At this point there was a Cylonesque audio break-up within SL of around 2 seconds, with Agenda’s voice becoming very distorted. This was followed by a short break in her narrative as people pointed this out and she confirmed that she was again audible. The audio recording therefore picks-up with her comments following the slight disruption.]
04:46: So this limitation limits their power to … it limits their power to activities on the service, which is something we were asking for, and it limits their ability to use your content to the creator’s permissions.
05:06: So if you have done something that indicates to Linden Lab that they can’t use your content. for instance, you have deleted it, or you have put restrictions on it; no copy or no transfer, this indicates what the permissions should be.
05:23: So this is a great limitation; it’s beautiful. But there’s a problem. And here’s the problem. Let’s go back. They changed the words in this list of rights; they changed the order.
05:38: So you have this big long list of the rights that you grant to linden Lab. This is not unusual, this is something you see in any on-line social media site, and content publishing site; you grant rights to the site, and most of these are necessary.
06:03: But when they changed the order of the words, it makes it difficult to tell where that parenthetical limitation is supposed to apply, because we can’t tell if that parenthetical limitation is supposed to apply to all of those rights, or just to the once that they just changed to put on the end.
06:26: for instance, you’ve got “sell, resell or sub-licence (through multiple levels)”, that “through multiple levels” only goes with sub-licence; that parenthetical only applies to sub-licence. And this new limitation that looks awesome, goes right after this sub-licence (through multiple levels), with respect to Second Life, etc., etc., etc.
06:54: So when I’m looking at this from a contract drafter’s standpoint, I can’t tell what that new awesome limitation applies to. I can’t tell if it applies to just sub-licence, just sell, resell or sub-licence, or everything in the list.
07:15: If it applies to everything in the list, that would be great. but if it doesn’t apply to everything in the list, it means nothing, and it doesn’t help us. And so that is the problem that we have to deal with.
07:29: So that’s kind-of where we stand right now. as far as the concerns that people have had, the Terms of Service still claims too many rights; it may or may not be fixed. It’s still too broad because the concern that people had about derivative works is not addressed at all. that section of the Terms of Service comes after this change, and is not affected by it; and the no limitations concern … I don’t know. It might be fixed; it might not be fixed. It really depends on what that limitation applies to. and unfortunately, what we have is that the only way we have to decide whether or not this poorly written parenthetical applies to the whole list or to part of the list is to argue it in court; and that’s expensive. Nobody wants to be that test case.
08:34: So when you have businesses like CG Textures and Renderosity and so on saying you can’t use our stuff on Second Life, they’re not satisfied with this change. I’m not satisfied with this change. It’s incredibly poorly written, and it doesn’t help the users because how can you possibly know what is meant by this?
08:59: so this is what we have right now, and I will take questions, if you’ve got them.
question from SLBA President Tim Faith: Agenda, did you talk about moral rights?
09:06: Moral rights are not addressed in this change, Tim. They don’t discuss them; the moral rights section is an earlier part of the Terms of Service. It’s an entirely different section [It is, in fact, an earlier paragraph within Section 2.3, but as Agenda points out, is not addressed by the changes made on July 16th, 2014.]
A question is sent via IM asking if Agenda had changed her view with regards to the actions of CG Textures and Renderosity since her initial comments made during the SLBA Terms of Service Legal Panel of October 2013.
09:18: So this is going to take a little explaining. In last year’s presentation, I said that on the subject of Renderosity and CG Textures that I thought that their reactions were a little bit extreme and she asked if anything had changed – let me see if I understand your question correctly – if anything in my comments from last year had changed about their claims and announcements? No. I think that they are mostly making a point, and I absolutely support them making a point; that’s the best way to try to force Second Life’s hand. Obviously, they’re not listening to the complaints of their own users, but if they can see the effect from third parties, that third parties are specifically banning the use of their works on Second Life because of this poorly written Terms of Service, that speaks very powerfully.
10:29: Yes, it’s very hard on content creators, but it is a very powerful tool. so I think that their responses were extreme, but I support their ability to …
Question: Back then, you said their reaction was unjustified. Now?
10:46: I don’t think that I said that their reaction was unjustified. I think that their reaction was extreme in response to the Terms of Service change. It didn’t justify that banning, but if that is the only way to get any response from Second Life and from linden Lab, OK, great. That is a good tool of protest.
Comment: What you had said was “There is nothing that has changed in the Terms of Service that drastically affects CG Textures’ and Renderosity’s terms to the point that they should have reacted the way that they did.”
11:16: Yes. I absolutely stand by that; nothing changed that drastically … I hope that answered your question; I’m not sure how to answer that question, I’m sorry.
Question: One of the things I was wondering was whether or not these rights can be revoked by me at any time by terminating my account?
11:41: Whether or not these rights can be revoked is up in the air. If that parenthetical applies to all of the rights, then yes, these rights can be revoked, because they’re using the permissions that you give as a guideline for whether or not they have permission to use your content.
12:03: If that [parenthetical] only applies to the last three rights or the sub-licence right, which doesn’t make any sense. But if they apply to all, then it’s a great limitation and you can limit their rights to use your content. If it doesn’t apply to all of the rights, then it is extremely ineffective. But if it doesn’t apply to all of the rights, then there is no reason for them to change the order of the list.
12:59: And that’s why I’m dwelling on them changing the order of the list. It’s a list; you know, I need you to go grocery shopping and I need you to get bread, milk and eggs, and that makes no more sense than if I said I need you to go grocery shopping and I need you to get milk, eggs and bread. It’s a list. The order of the list; the order of the list does not matter unless that parenthetical at the end only applies to one thing on the list.
Question: Regarding the parentheses; as Ebbe Altberg has only talked in terms of revising the ToS to address issues of “sell, resell”, do you think it more likely the Lab used the brackets to intentionally limit the application of limitations?
13:23: That’s why this stands out to me; it’s that he’s taken the “sell, resell and sub-licence” and moved them to the end to somehow make that parenthetical apply to only those three things. And if that is what he intended, the drafting does not accomplish that. It’s poorly drafted. I don’t really have an excuse for why it’s poorly drafted. The only thing I can think of, and I’ve said this before, I said it in my post about it, is there is some kind of tremendous miscommunication between Linden Lab leadership and Linden Lab’s legal department. That’s the only thing that I can think of, is that their leadership wants one thing, and whoever drafted this change was not able to give it to them.
Question: I wonder about the altering aspects in section 2.3 and also their ability to sell to third-party?
14:30: Talking about the ability to sell to third parties depends on what you mean, depends on whether you’re talking about selling individual content to third parties. That’s part of Linden Lab’s model. They’ve got the marketplace, they’ve got in-world sales; they’ve got to be able to sell content to third parties, it’s what people do here. So they’ve got to be able to sell things to third parties.
Question: How can LL claim such broad rights say on content copy written outside SL by us or say like Disney even and they claim they have full rights to said content if that’s what it’s saying. Clearly if someone uploaded copy written content LL doesn’t have full rights despite TOS say if I were to upload content owned by Disney?
15:16: That, I think is a good and important question. that’s getting at the derivatives works question. And that’s something I talked about fairly briefly in the big, three-hour long Terms of Service discussion a year ago.
15:32: I don’t think there is a problem with derivative works such as machinima. I think people are concerned about it, and I understand their concerns, because the Terms of Service is written fairly poorly. But while you could interpret the Terms of Service to grab rights over all derivative works such as machinima, I don’t think that would hold up anywhere, ever. It just would not. I don’t think that’s a problem.
16:07: As long as it is not something you have uploaded to Second Life, which brings it under this Terms of Service umbrella, or something that has Second Life’s trademarked content in is, like you have taken a video of something having to do with Second Life … Second Life itself, and it is branded with Second Life.
16:35: If it’s just – Like Bryn Oh has those beautiful machinima of her artwork and her beautiful creations. I can’t imagine that those are covered by the Terms of Service. The copyright laws simply do not cover the amount of Linden Lab created stuff that is in those. There’s just a tiny, tiny amount of stuff that Linden Lab created, that they could claim. I just don’t see … laws trump the Terms of Service in that area; I don’t see that that’s a problem. It highlights the poorly written policy, the incredibly poorly written policy.
17:25: Hypothetically, it’s something that people could go to court about and fight over, but given over and over again, Linden Lab’s leadership has also said they don’t think that things like machinima are affected by the Terms of Service, I don’t see this being a problem. And yes I do think that, of course, Linden Lab needs to fix the Terms of Service so that it’s not as poorly written and it doesn’t give people this confusion. But I don’t think this is a problem – and this is just my opinion.
[At this point there was a slight aside as Agenda clarified for a questioner that she was addressing questions on the Terms of Service update to Section 2.3, and had not started to address Skill gaming matters (about which the questioner was interested), and indicated that she would be moving on to that subject once questions of the Terms of Service had been dealt with. Again, for ease of reference, this aside has been removed from the audio.]
My point on the parentheses is that remove them, and the confusion over intent would be removed; so their inclusion seems more to point at intent to limit the update more than give it a broad-based applicability to the list of rights.
18:20: There’s a number of way you could make that a lot more clear. you could remove the parentheses, or you could rewrite that section so that the limitation is more clear. There’s a number of ways that you could make it clear what that section, that little parenthetical limitation actually applies to. I don’t know what it applies to, and it is very confusing. They could have written it a lot better.
I missed part of the voice.. does the recent TOS change actually change anything or is it all too vague?
18:50: It’s all too vague. I don’t know if it actually changes anything. It could change something, and it could make things a whole lot better. Or it could change absolutely nothing.
[End of the ToS part of the presentation.]