In August the Linden Lab Terms of Service for all their products changed. One change most of us missed is now a point of considerable concern.
I’ve been watching discussion of the change in ToS that explicitly states we grant Linden Lab the right to sell any content uploaded to Second Life. I am not seeing what I consider a good explanation of the situation or clear opinion on it. Inara Pey has an article that shows the EXACT change and highlights the pertinent sections. See: ToS change and content rights: Lab provides statement.
The point many are having problems with is Section 2.3. (ToS Top Page)
NOTE: Once you have accepted the ToS in the viewer’s login process it can be a bit hard to find. Google gives you the page I’ve linked to above, the Linden Lab Table of Contents page of the Terms of Service. If you are wondering if that is in fact the ToS for SL, look to the SL Viewer Download page. Look near the bottom of the page for Terms of Service. That link leads to the same Linden Lab page.
What to Consider
Whenever you read a legal document there are several things you need to consider. Plus legal documents of the Agreement Type, which the ToS is, have some standard stuff. Check to see if those typical items are included.
One of the typical clauses is found in Section 11.4 – This Agreement and the referenced Policies are the entire understanding between us. This section basically says no matter what else the Lab or you have said anywhere or at any time and not what the Lab may say at any future time nor who at the Lab says it, if you do not read it in this document then it is NOT part of our agreement.
They use a lot more words, but that is the basic idea. The main point here is this clause means this agreement, and only this agreement, will be the basis of any lawsuit.
There is a clause that is often included in agreements, but not clear to most readers. That is that ANY PREVIOUS agreement is voided by this updated ToS. Depending on how any agreement you may have with Linden Lab is written, a new ToS may void it. So, unless your agreement explicitly addresses changes to the ToS as not affecting the agreement, it can be argued it is void. Will that ever be argued? If it is to the Lab’s advantage, probably.
The only way to avoid the terms of the new agreement are to not login or otherwise accept the new ToS agreement.
In Section 5.6 is another standard clause: Some terms of this Agreement will survive and continue after termination. One of the things that will survive is the rights and licenses granted to SL/LL. So, once given you cannot retract them.
What You are Granting
The part of the ToS that is changing and some find objectionable is:
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.”
Linden Lab has no obligation to monitor or enforce your intellectual property rights to your User Content, but you grant us the right to protect and enforce our rights to your User Content, including by bringing and controlling actions in your name and on your behalf (at Linden Lab’s cost and expense, to which you hereby consent and irrevocably appoint Linden Lab as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
Inara wondered if what those paragraphs say is what the Lab means. So, she asked and received an answer. Which in part says:
“As evidenced by Second Life’s extensive history, functionality and well-documented policies for providing a platform on which users can create and profit from their creations, Linden Lab respects the proprietary rights of Second Life’s content creators. We regret that our intention in revising our Terms of Service to streamline our business may have been misconstrued by some as an attempt to appropriate Second Life residents’ original content. We have no intention of abandoning our deep-rooted dedication to facilitating residents’ ability to create and commercialize such content in Second Life. In fact, we strive to provide Second Life’s residents with evermore opportunities to do so.”
Realize this correspondence provided Inara is NOT part of the TOS. Therefore per Section 11.4 it has no bearing on the agreement.
What they are saying is historically they have never appropriated user content. I think I can find some people that might disagree with that. But, whether I can or not, consider. I once had a dog. During all of my dog’s life it never died, until one day it did. Past actions only predict the probability of future actions. They do not assure or guarantee the nature of future actions. Things change.
The correspondence says some have misconstrued what the ToS now says. A standard tactic in spinning a subject is to say something nebulous that is hoped will be taken to mean something not stated. What did we misconstrue? That the Lab WILL sell our products? Or that we are granting them the right to do that? I think there is no doubt we are granting them the irrevocable right to do that.
I think it is obvious the Lab has no intention to stop SL users from selling products and making money from their creations. The company intends to continue doing business as usual. I think those are believable statements and I think they are sincere. The problem is, you ARE giving the Lab all rights to your products. If management changes, the behavior may change.
One or two years down the road or at some point when the Lab is on hard times, a smart accountant may see this content as an asset and start the company selling it. There is nothing in the ToS to stop them. All the Lab needs to do is show you logged in after the ToS changed. Have you noticed they keep that information, last login?
There is nothing in the WRITTEN ToS to protect you. You are giving the Lab all rights to content you upload to SL or the Market Place. It is not exclusive rights, so you retain all rights too.