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.
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.
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.