TOS Revisited 2013-39

There’s still quite a bit of discussion going on about Linden Labs™ new TOS. Lots of misinformation is appearing as people are giving their opinions. I think I have a few things to add to the discussion.

Empty Malls? - Image by: Lost Tulsa via Flickr

Empty Malls? – Image by: Lost Tulsa via Flickr

First, for those that want a definitive answer there is no choice but to consult an attorney. But, there are free legal advice services on the Internet, just Google free legal advice. You don’t have to hire an attorney. But, remember it is free. You get what you pay for.

The Point

Many haven’t bothered to inform themselves what the discussion is about. Remember. For some time the Lab has had a ToS that says you give them the rights they need to operate the service. Since you are GIVING them nonexclusive rights you have, since you created the ‘thing’, copyright is a non-issue. You are giving them a copy of your copyrights to your ‘thing’. This is not new.

Also, a number of people think you’re giving away your rights. You aren’t. The Linden TOS says you are granting them nonexclusive rights. That means you get to keep all your rights too. If you are giving up your rights, you would be granting them exclusive rights.

The change from all the previous TOS versions, as best I can tell, is removal of the clause: …rights needed to operate the service. (That is paraphrasing.) This little clause is the point of all the discussion. This clause limited Linden Lab to using your stuff with Second Life™ and only in connection with Second Life. Or if you push it another level up, with the services Linden Lab provides you. 

To get a better idea of how the clause rights needed to operate the service works in other situations, consider web hosting. A web host is going to provide copies of your images, texts, and other web content to millions of people, a clear copyright violation, but they are acting on your behalf. Thus, their terms of service say you grant them the rights they need to operate the service and provide copies of your work to all those people visiting your website. But, they can’t take your work and sell it or otherwise present it to others as if it were their own or otherwise profit from it. They can only use it to provide their service to you. And that service is delivering your content to your readers.

Selling Your Stuff

Selling your ‘thing’ in the Market Place is a activity of operating the service. It is a sale within the system and part of the SL service. It is very similar to web hosting. They are providing your content to your customers.

I will point out that businesses sell patented and copyrighted merchandise every day. Barns & Noble sells no book that is not copyrighted by its author. But, B & N does not require the author or publisher to grant them all rights to the books for whatever purpose B & N might think of. They get only the rights they need to sell the books. Sort of a …for operation of the service type thing.

So, for Linden Lab to sell your content to your customers in their Market Place I can’t see where they need any more rights than they previously had.

But, there is the Desura factor. Desura is a software sales point and Linden Lab property. If Linden Lab were to expand The Marketplace to sell Second Life content to Desura game makers, in an effort to expand our markets then they need to go beyond the Second Life service. Such sales would not be an integral part of the Second Life services they provide. They might be considered an integral part of the services Linden Lab provides. So, it becomes less clear whether the clause …for operation of the service covers everything the Lab needs to cover.

We do have to think in terms of Linden Lab as it is Linden Labs terms of service. As the Lab diversifies we have new opportunities. While we want to protect our rights we also don’t want to shoot ourselves in the foot. But, I still don’t see where Linden Lab needs completely unlimited rights to our content.

I sell stuff on eBay. They only require the I own the item I’m selling and grant them the rights to content I provide to sell whatever on my behalf. I don’t see why Linden Lab can’t do the same thing. eBay does not request transfer of ownership from me to them so they can sell it for me.

So, while there are possibilities here I still think the Lab has messed this up. 

11 thoughts on “TOS Revisited 2013-39

  1. I am often accused of being a fan boy and supporter of LL, but I would like to think that these are growing pains. In an attempt to merge the terms across all services this change was made. I think we will see a wording change that clarifies this in regard to second life specifically. There is already language in the TOS that allows for specific services to have different exceptions. I expect we will see that.

    • Sean, I tend to agree with you, really. But so far, the only (semi-)official statement we have from LL is that they are happy with the wording of the ToS, and we shouldn’t worry our little heads, because of course LL would never do anything bad.

      Nalates, I agree with you about the ToS covering all content, not just what’s uploaded after the change. My full line of thinking is here:
      but basically, the new ToS now simply states that “you agree that LL has the right to your user content”, rather than granting the license to each piece individually by uploading it.

      • 🙂 We think the same thing for somewhat different reasons. You make a good point about the wording change in your G+ comment.

        Your point about the Lab, or any party, not being able to ‘make’ things change you have done under a previous agreement by rewriting the current ToS I agree with. But, that does not stop you from agreeing to a new agreement/ToS rewritten to say what you did in 2006 is to be construed according to the new agreement. A person does not have to accept that agreement, in which case the previous ToS would apply. But, that all changes once one agrees to the new ToS.

  2. Nalates, usually I think that you are giving really well researched and edited information. In this case I believe that some parts of the post could actually be understood as a source of misinformation. First of all you should fully understand what non-exclusive means. You can find a good definition here: You are giving the impression, that the difference between the two is the level of rights granted. You are saying that they need non-exclusive rights “in order to operate the service”. This is giving the wrong impression. The difference between the two terms exclusive/non-exclusive is simply that a non-exclusive license can be given to several parties simultaneously.

    The level of rights that users give to Linden Lab is defined by another wording. The old liscence (TOS) defined LL rights with the wording “for the purpose of providing and promoting the Service”. It now reads “for any purpose whatsoever”. This means that they can resell anything anywhere and how they please. The word non-exclusive simply has no influence to that.

    You text also doesn’t highlight correctly where the most severe implications will be felt. The huge problem is in my eyes not that Second Life content creators will leave SL. Most SL content creators heavily depend on the Second Life platform and will not stop no matter how many rights you take from them. It’s for them a question of selling something or nothing – there is no other market. The problem is that if someone wants to incorporate work of other content creators into their product, they cannot do so anymore. Unless something is entirely your own creation or purely public domain – you do not have the necessary rights to grant your end product to LL. Not with Creative Commons; not with expressly commercial licenses; not with ny license. Uploading to SL will be a violation and a criminal act. The new TOS wording does not work with other licenses. Getting licenses to mesh is a hellish puzzle, and LL simply screwed this one up. SL relies on user created content and they are therefore sabotaging their own business model. Furthermore the SL reputation within the modelling community will take an immensive new bashing. Reputation of the SL platform already wasn’t great (to put it kindly), but it surely can get worse. Kiss any hopes goodbuy that professional content creators might consider SL as a content selling platform in the near future.

    Last but not least your tip to file DMCA Takedown Notices is in my eyes misleading. Users have agreed to the old TOS. The old TOS stated that you give LL the rights to use it to “Operate the service”. So the only thing that a person can do that is afraid of their content being resold in the future is asking LL to stop sellsing the content in Second Life and beyond. The content cannot be removed if other users acquired it. If you don’t agree to a new TOS it does not give you the right to infringe the agreements that you signed with the old TOS – and you would do that if you ask for deletion of content. That could make you the aim of compensation requests by other SL customers. Therefore it doesn’t sound like a wise thing to do.

    I personally think that the best resume of the situation is given in a blog post by Ciaran Laval:

    (I cited some arguments from the comment of Tali in a NWN post

    • Penner, I believe you missed my point on nonexclusive. I was making the point that those saying the item creator was giving up their rights were wrong. Your statement of the difference between exclusive and nonexclusive granting is accurate.

      The idea that content cannot be removed if others have purchased it, is inaccurate. The Lab has removed content from the grid after receiving a DMCA take down.

      Also, saying “the only thing that a person can do” is inaccurate. There are a number of things. The frame that my DMCA info is provided in is about influencing the Lab. I points out the actions one would take to protect IP and to influence the Lab would be different.

      Many of the points being discussed by the community cannot be decisively settled until someone takes matters to court.

  3. Once more, what hurts the Labs reputation even more than the actual deed, is the fact that they are not communicating about it.

    I think what will get their attention the most will be the repercussions of resource sites and companies such as CG Textures and Renderosity changing their TOS and how it affects the content creators of SL.

    • I agree. Other content sites changing their ToS will have an impact. But, I am not sure that is seen as important in the Lindens thinking. Nor do I believe the Linden stats have any tie to those factors that would make it obvious to the Lindens.

  4. Pingback: ToS Changes: The “Desura connection” and a personal perspective | Living in the Modem World

  5. Pingback: TOS – The Desura Connection » Ciaran Laval

  6. Pingback: A scrutiny of the recent changes to Second Life’s ToS | Mona Eberhardt

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