ToS changes legal panel transcript (6): Q and A session (3)

Questions (2) Question (4)

This is the third part of a transcript of the Q and A session of the Terms of Service legal panel discussion which took place on Saturday October 19th, to discuss changes made to the Linden Lab Terms of Service governing their products and services in August 2013.

If you have come to this page first, please read the introductory notes for details on the panel and its purpose. Links at the foot of this page provide access to the other sections of this transcript.

Tim Faith and Agenda Faromet
Tim Faith and Agenda Faromet

I am a film maker and I use SL to make animations (machinima) for Children’s books and TV. On the old TOS all we needed to do was have the rights in writing from all the creators of the objects including avatars and the film would be my property to sell and use as I saw fit.   Can you tell me how does the new TOS affects me now, do I still have the same rights or are my rights compromised by Linden Labs claiming rights on my copyright  property?

00:32: Agenda Faromet (AF): Actually, Juris may be able to answer that even better than I could.

00:39: Juris Amat (JA): A quick response to your last statement. It’s also a question, see Moberg, Agenda, whether uploading content without the ability to download that content in-world is publication.

AS: She’s right, yes. [In relation to the current question] I think Juris is going to have a better answer than I will, but I don’t think that the machinima licence has changed. I looked at the machinima licence yesterday and its text is still the same, so they haven’t actually changed it, but I don’t know if … yeah, the new ToS affects it, so the real question is, I think, is the one that I raised with Tim earlier. I Would argue that Linden Lab has absolutely no claim over anything that you make here. That’s what I would argue, and the real question is, are they going to argue back. I really want to hear what Juris has to say.

01:58 Tim Faith (TF): I don’t have any clients that make films in Second Life, so I have not studied the issue. I’m not sure how this really would have an impact off-hand, but it’s quite possible that it would. I just don’t know.

02:20 JA: There is definitely reason to be concerned there are new claims to your content under the revised terms. I  don’t believe they are valid assertions to your content but I can’t ignore that there are rights being claimed on their side.

02:33 AF: I totally agree. This is what Tim and I were talking about with the ” exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof),” this is what we were talking about earlier today. I don’t believe they’re valid. I agree with Juris.

02:50 JA: Even the definition of content is not the same under these new terms.

02:55: What if we are located in a completely different country, such as Australia, what are the constraints and limitations and the effects of  agreeing to a US and California state Law, if we are in said places outside of the California / US?

03:10 AF: Well, under the terms of service … any on-line terms of service, will have a jurisdiction section, and usually you’ll just scroll down to the end to see what it is. And it’ll tell you which law governs the contract, and so for Second Life it is the US and California law that governs the contract. So even if you are in Australia or Croatia or the UK, and you have a dispute, regardless of what court you go to, if you go to an Australian court, they’re going to use US law to decide the case, they’re going to use California law to decide the case.

03:58 JA: That’s the idea but other courts may have jurisdiction depending on the nature of the claim asserted.

04:03: TF: What law governs and what court has jurisdiction is not black-and-white; I think it’s more likely than not that it would be US and Californian law, but there are copyright laws in other countries that protect their citizens differently than the US copyright law protects ours, and that’s a problem that’s existed for a very long time. And even if there are international treaties that are supposed to govern all of it the same, I can assure you that France’s operating laws are a lot more different from the US, and other places look at this differently. I don’t know how that would come out, I don’t know of a case off-hand where I could say we could predict the outcome of that; but it is something you argue, I would think, along with everything else, particularly if you’re in a place that’s more favourable.

04:52 TF: You do kind-of … I think you take your chances in some ways, because you’re using a system that’s based in the United States, and it’s based in California. It’s more likely that it would be governed by our law and California law in the contract part.

05:09 AF: You’re absolutely right. You argue whatever you’ve got.

0:15 JA: For example those asserting copyright infringement may be able to bring those claims outside of California if their rights are affected and have decisions regarding that content enforced in the US. Agenda what about the Canadian skins copyright infringement case?

05:32 AF: I can’t answer any questions about that.

05:34: This is a two-for-one because they are related. What are our realistic, effective ways to make a case to Linden Lab? / If I as a creator wanted to REJECT the recent TOS, how could I remove LL’s rights to the TOS I refused to agree to?

05:53 AF: Those are two different questions. If you wanted to reject the most recent ToS, you shouldn’t have agreed to it; your options now are to mitigate the damage. The realistic ways to make a case to Linden Lab are to work together with some of the groups that are trying to make a case to Linden Lab, and there are several. I think probably the UCCSL is a really good group to work with; I know that they are trying to gather as many people as they can to present a united front, and I know there are a few others. That’s where I would suggest going right now.

06:43 JA: send me an e-mail and we’ll write them a notice.

06:52 TF: I guess the other part – I think you have a point, which is you’ve got to log-in. Let’s just say you’ve got ten thousand items in your inventory, and they change the terms of service. You can’t log back in until you accept the terms of service, so I guess that if you did that and then you logged in and you deleted all of your stuff, that maybe you have a different argument than if you use it for a while afterwards and then suddenly have a realisation, “Oh wait, I shouldn’t have accepted that because I think they are bad terms.”

07:27 TF: I guess the other part, even today, I don’t know what Section 2.6 said previously, which is when you delete, you terminate your licence to Linden Lab with certain limitations. I don’t know if the limitations were different off-hand on the old terms of service. I guess a mitigation would be that you remove all the stuff that you’ve got in your inventory and close your account. I don’t know if that solves it; I guess it would limit what they could do with at that point with your stuff, to whatever they claim under Section 2.6, but I don’t know. Agenda, was there an older version of Section 2.6 that’s different to this? It seems logical that anything you’d sold or transferred to anybody else, that your licence to them can’t be terminated at will.

08:14 AF: It wasn’t 2.6, it was Section 7 before that. And it changed very drastically with this new terms of service. It was a very significant change … and I can tell you there are plenty of cases; there was a case for Instagram just this year, where there was a class action of people that didn’t want to agree to Instagram’s new terms of service and sued, and all of them or at least all of the representatives of the class had logged-on and accepted the new terms of service and continued to use Instagram and so the judge threw the case out and they lost because they had continued to use the service. So  accepting the terms of service and continuing to use it weakened their position to the point that they couldn’t assert their rights.

09:24 TF: How long did they use it, do you know?

09:26 AF: At least a month.

09:29 TF: So it’s a relatively short period in that case. I think that the old terms of service … in terms of the old way that this worked, some of it’s the same, which is that you can delete stuff and it does terminate in general the licence that Linden has, but there are things that survived even under the old rule. So I guess the basic concept’s maybe not that much different … but I guess if you got really upset about it, that it seems that you have to get in and delete your stuff, and I’m not sure that’s great.

10:18 JA: The deletion of your content from your inventory did not cover other copies on the server.

10:24 TF: Well Linden, even under the old terms of service had a tight to keep copies and back-ups and things that they needed internally for system administrative purposes. But the fundamental, “I deleted, it ends my licence to Linden,” that statement is still, I think, the same. There might be some nuance changes, that it’s less of a termination now than it would have been then.

10:51 JA: I would hesitate to make analogies between Instagram and Second Life particularly as regards the reliance of creators on the stated intention of SL to respect user rights and allow them to retain intellectual property rights to that content. Trademarks, finally!

11:14 AF: I think it’s a good point that Second Life is a completely different animal from Instagram; I’m just – there aren’t a whole lot of legal precedents for this kind of thing, and so I’m grasping at what I’ve got; and I’m not sure what she means by “trademarks, finally”, but we haven’t talked about trademarks a whole lot, that’s true.

11:39 JA: The right to control the use of logos, trademarks etc is arguably outside of the scope of the license granted under the ToS.

11:48 AF: Yup. I wasn’t going to mention it.

11:50 JA: So theoretically a cease and desist could be issued to them and the content demanded to be taken down.

11:56 AF: Yup. I wasn’t going to mention it.

11:58 JA: Trademarked content that is.

12:00 AF: It’s been used in commerce, hasn’t it? I’m not trying to give Linden Lab any great ideas for the next ToS update.

12:11 JA: Trademarks can be considered as anything identifying the source of origin of the goods or services offered in-world. They can’t negotiate trademark licenses in a one ended fashion and expect them to be legal, a specific licence governing the use is required.

Tim Faith
Tim Faith

12:26 TF: I just wanted to say, the licensing section that we’ve been talking about has to do with content, which is defined in the terms as a work of authorship, creative work, graphic, image, texture, photo, logo, video, audio, text, and interactive feature. But interestingly they don’t say “trademark”. A logo sometimes is a trademark and sometimes it’s not. They acknowledge that trademark is separate from copyright. So I do think there’s argument to be made that you probably ought to have a separate licensing understanding about use of marks, because there’s a whole different area of law that governs trademark. It’s as intricate and as complicated as copyright, and it has a big impact on business people here because beyond the copyright issues with your work, you have your business name, how you market your work, which often implicates trademark rights.

13:26 TF: So that’s an interesting point. I wonder if that’s a separate way to challenge the ridiculously, overly broad statements that have been made by Linden [Lab].

13:45 AF: Yup. And most of the trademarks in Second Life are not federally registered, but that makes them no less valid, and Linden Lab can say that they’re claiming use of logos, but if they’re not actually claiming the mark, and they’re not actually claiming all of the good will attached to the mark, they’re not actually licensing the mark. I don’t think they’re actually attaching the trademarks, and I think that protecting a brand’s trademark is still a very valid way to protect stuff; I think it’s a very good option.

14:27 JA: A licence for trademarks requires instructions regarding placement of the marks and requires a certain level of control that only a trademark owner can impose.

14:36 AF: Yup. I completely agree.

14:40 TF: Usually you’d say, “You’ve got to follow my guidelines for how to use my mark”, and that there’s certain colours, and you can’t change the mark around, because your trademark is very specific in terms of how it works, and I don’t think that’s present in these terms of service. I guess maybe someone from Linden [Lab] is listening to this broadcast and is busily changing their terms of service now ….

15:09 AF: Yeah, see I didn’t want to give any ideas…

15:13 TF: It’s an interesting problem, because if you haven’t licensed it and they use it; there are rights that they have, as anybody would have, to re-use people’s marks in certain ways; there’s certain limitations on your exclusive rights to trademark, but it’s not very broad, where they’re trying to have a very broad right on the user content otherwise. So, it’s interesting.

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All images courtesy of LaPiscean Liberty unless otherwise stated.

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