Tag: Terms of Service

In-world legal presentation on the recent updates to the Lab’s Terms of Service

Posted on by Inara Pey

I’ve received a press release from the SL Bar Association SLBA) announcing that Agenda Faromet, who in the physical world is an attorney specialising in privacy and internet law operating out of San Francisco, will be discussing the July 16th, 2014, changes to Section 2.3 of Linden Lab’s Terms of Service and also the recent changes to the Lab’s Skill Gaming policy.

Agenda Faromet (via profile)
Agenda Faromet (via profile)

The press release reads in part:

Linden Lab has recently announced changes to the Terms of Service associated with Second Life.  This change comes almost a year after the major controversy that erupted last year over a substantial change in section 2.3 of the agreement with users of Second Life, related to the license claimed by Linden Lab in works created by creators in-world.  Please join us for a lively discussion of the actual language changes from the prior terms of service.  Agenda will also discuss other changes implemented by Linden Lab, including the gaming policy.

The discussion is set to take place in the SLBA courtroom, starting at 10:00 SLT on August 2nd.

I hope to be able to attend the meeting and provide a transcript through this blog.

About the SL Bar Association

The SL Bar Association (SLBA) is a group for legal professionals and others interested in legal issues in Second Life. It is registered as a 501(c)(6) organisation in the United States, and operates in Second Life from the Justitia Virtual Legal Resource Village, which serves as a resource for both attorneys and the general public, and has law offices available to rent on the square, along with general legal information on a variety of topics.  Rental units are also available at sea level.

Details of SLBA talks and presentations can be found on the SLBA website, together with further information on the association and its members.

TOSing the (word) salad (or why I think the latest Terms of Service update misses the mark)

Posted on by Inara Pey

On Wednesday July 16th the Lab issued an update to Section 2.3 of their Terms of Service. I’ve already provided some feedback on the update and how, thanks to the use of parentheses, it appears to be limited to only addressing the issue of the Lab attempting to sell user-generated content for their own profit; something which is also indicated by the official blog post on the matter being focused solely on that issue as well.

However, there was more I wanted to say on the matter, but which, as an expression of personal opinion, I didn’t want to include in what was essentially a “news” article. So please excuse me if I now take the opportunity of doing so.

I’m actually not at all surprised that the Lab has looked no further than addressing the issue of their selling, reselling or sub-licensing user content. Prior to the update being published, I spent a fair amount of time reading Ebbe Altberg’s forum comments in relation to the Terms of Service and transcribing his statements on the matter at various meetings. One thing that struck me in doing so, was that throughout all of them, he only ever referred to revised the ToS in terms of addressing this singular issue.

Unfortunately, even in dealing with this one issue, the Lab appears to have again managed to introduce ambiguity into matters. In their blog post, they state that the updated Terms now require some nebulous form of “affirmative action” on the part of users in order for the Lab to sell, resell or sublicense their content. But what form is this “affirmative action” supposed to take?

It’s fair to say that the revised Section 2.3 of the ToS doesn’t give any indication, other than perhaps via the very generic statement of, “as permitted by you through your interactions with the Service”, which could mean almost anything.  Even a check on Section 2.4 of the ToS – which the blog post points to as being the basis for the additional language in Section 2.3 – offers little enlightenment. It merely states that “interaction with the service” might be as simple as using the permissions system with any content you place on any Second Life region accessible to any other user. As such, people could be forgiven for taking the blog statement about “affirmative action” as little more than cold comfort.

... Except the ToS doesn't really indicate what such "affirmative action" might be, other than in the most generic of ways
… Except the ToS doesn’t indicate what such “affirmative action” might be, other than in the most generic of ways

Beyond this, why the Lab have persisted in ignoring concerns over the removal of all reasonable limitations on the granting of shared rights to them, remains a mystery. It’s not as if they weren’t aware of any issues on this matter, because at the end of 2013 and early 2014 efforts were being made to put such concerns directly and clearly to them. I know this to be a fact, because I was an active participant in one such group engaged in those efforts.

And if you’re not convinced that the July 2014 update leaves the matter of granting unqualified rights unchanged, then as I pointed out in my original article, you need only look as far as the statement following text which has been added to Section 2.3. It is completely unchanged from the August 2013 version of the ToS, still stating that the Lab might “otherwise exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever…“

Again, no-one is denying that the Lab requires the non-exclusive granting of certain rights in respect of users’ content. That is to be expected and should be understood. Without such rights, Second Life ceases to work. It is simply the extent to which the Lab require the granting of such rights since August 2013.

An unaddressed concen with the August 2013 Terms of Service was the removal of all limitations around the granting of rights to the Lab in respect of user-generated content. extent to which the Lab require users to grant them shared rights to their content. In October 2013, Agenda Faromet suggested how the August 2013 ToS update could be improved - through the re-establishing reasonable limits on the non-exclusive rights granted to the Lab in respect of content - just as had been the case up prior to the August 2013 update.
Agenda Faromet, speaking at the October 2013 in-world meeting about the August 2013 Terms of Service changes, was perhaps the first to clearly bullet-point why a reinstatement of reasonable limits on the granting of shared rights to the Lab in respect of users’ content might benefit the Terms of Service.

Up until the August 2013 update, the ToS had required rights to user-generated content “solely for the purposes of providing and promoting the Service” (see Section 7.2  of the May 2013 Terms of Service). Even allowing for the fact that since August 2013 the Terms of Service have been applicable to all of the Lab’s products and not just Second Life, it is hard for the untutored eye to understand why this language couldn’t have been carried forward in respect to rights granted to the Lab. After all, “the Service” could apply to Patterns, Desura and any other platform the Lab produces, just as much as it applied to Second Life.

And therein lies part of the problem; because the removal of all limitations on rights granted to the Lab appears to be entirely arbitrary, it gives rise to suspicions and mistrust over the company’s motivations. As such, it is a shame the Lab has never really made any effort to clearly express why they believe such a sweeping change assists them in their role as a service provider when compared to the previous, more qualified granting of rights. While it would still be a very poor second to actually working with concerned users to try to amend Section 2.3 to the benefit of all, providing such feedback might at least help in allaying the aforementioned suspicions and mistrust.

Unfortunately, I tend to feel that we’re unlikely to see any further movement on this matter; the Lab have revised what they felt needed to be revised, and it’s not as if they were unaware of other concerns related to recent ToS revisions. As such, and like it or not, we still have a Terms of Service which still has every appearance of being creator / collaboration unfriendly.

And in that respect, when considering the July 16th update, I’m left with a quote from William James rattling around my head:

A difference which makes no difference is no difference at all.

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

Posted on by Inara Pey

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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LL Terms of Service: Ebbe – “we’re working on it…”

Posted on by Inara Pey

Update, April 13th: the full transcript of Ebbe’s VWBPE 2014 address is now available.

On Friday April 11th, Ebbe Altberg, Linden Lab’s CEO addressed a pack amphitheatre at the 2014 Virtual Worlds Best Practice in Education (VWBPE) conference in Second Life. Some 200 people were in attendance in what was around a 90-minute session which comprises an opening statement from Ebbe, followed by a Q&A / discussion session.

I’ll have a full transcript of the meeting available shortly. However, as a part of his opening statement, Ebbe made a series of comments relating to the Lab’s Terms of Service, which I think are worth highlighting on their own. So here is a full transcript of his comments on the subject:

Terms of Service. I am working with my Legal Counsel to try to try to figure out how we can make it more obvious – or very obvious – that the creators of the content own the content, and we obviously have no intent of ever stealing your content or profiting off of your content independently of the creators in some fashion.

The current terms might indicate that we might somehow have some plan to steal people’s content and somehow profit from it for ourselves, without benefitting the creator, and that’s obviously not our intent at all. It would be very damaging to our business if we started to behave in that way because this whole platform is all about the content you all create. And if you can’t do that, and trust that it is yours, that’s obviously a problem. So I’m working on that, and I can ask you right now to trust us that we’re not going to do what the current clause might suggest we’re going to do, but we’re working on some simple tweaks to the language to make that more explicit.

We also have no interest in locking you in; any content that you create, we feel you should be able to export, and take and save and possibly if you want to move to another environment or OpenSim, that should be possible. So we’re not trying to lock you in either. Obviously, it’s very important to us to get content both in and out, so I just want to put that right out there.

Quite what will come out of this obviously remains to be seen, as will whether or not the changes successfully quell all concerns. However, it would appear that the wheels are finally in motion, and that hopefully, an equitable resolution will be forthcoming.

ToS changes: Legal panel discussion transcripts

Posted on by Inara Pey

On Saturday October 19th, a panel of legal experts  – real-life attorneys – sat down at the Rose Theatre, Angel Manor in Second Life to discuss the August 15th changes to the Second Life Terms of Service, address questions on the matter and remove some of the FUD which has built-up around the subject.

In attendance were Agenda Faromet, who in real life is an attorney specialising in privacy and internet law operating out of San Francisco, Tim Faith (SL: Yoss Kamachi), a Maryland attorney with a strong background in IT and who deals with matters related to copyright, IP, trademark, etc., and Juris Amat, a Massachusetts bar member who runs the Virtual Intellectual Property Organisation (VIPO). All three are members of the SL Bar Association, based in-world at Justitia.

In all, the session lasted just under three hours, with initial presentations by Agenda Faromet and Tim Faith (Juris Amat had difficulties attending the first part of the session). Tis was followed by a question-and-answer session moderated by Maxwell Graf, with Kylie Sabra relaying Juris Amat’s replies via voice.

For ease of reference, the transcripts are broken down into seven parts, as listed below. Each one includes the audio recording I provided in my original report on the meeting.

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ToS changes: Designing Worlds want your questions

Posted on by Inara Pey

Designing Worlds has announced a special programme to discuss the recent Linden Lab Terms of Service changes. The changes, which first appeared on August 15th, have led to concerns over the extent to which they require the granting of non-exclusive rights over content uploaded to the Lab’s services, as listed in Section 2.3 of the updated Terms.

The Design Worlds programme will be recorded on Tuesday October 29th, and will feature a special panel of representatives from across the creative sphere including artists, writers, designers, the legal profession and representatives of the United Content Creators of SL.

Not all of them may necessarily hold the same views – as Designing Worlds points out, while some see the changes almost entirely negatively, others see them as perhaps opening the door to potential new markets for their digital creations, and believe that the Terms of Service (possibly in an amended form) are the way forward. So the debate may well be interesting in the spread of views and comments.

As a part of the programme, Designing Worlds want to hear from the greater SL community. It doesn’t matter if you’re a creator within SL or a consumer (or both). If you have a question about Section 2.3 and how it may affect your business or your in-world time in general; if you’d like clarification on what it all means or how and where you might be affected; Designing Worlds invite you to e-mail them with your question, or leave it as a comment below the programme announcement on their website, and they’ll endeavour to put it before the panel.

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