TOS Revisited 2013-39

When Does This Apply?

As to when this new ToS goes into effect and what it covers… I think the idea that it only affects things from the time of its publication on is wishful thinking. I don’t find any clause in the TOS that supports that idea. As best I can tell, the TOS has always said that the TOS could be changed at any time and recently that it can be changed without any notice. They publish it and its changed. No grace period. You have a chance to agree to it and continue using the service or stop using service.

The TOS changed. There is not a 2010 TOS nor a 2009 TOS nor a 2006 TOS… All those TOS versions have a clause that says they can be changed. They have been changed. If you agreed to this one and continued using the SL service this is the TOS that covers anything you have ever uploaded in the history of Second Life.

If you don’t click and agree to this TOS, then and only then the last version of the TOS you agreed to comes in the play.

So, anyone that has clicked this latest TOS and agreed to it is screwed. The avatar Oddball that pulled all their products from the Market Place, removed them out of SL, and is shutting down their region has technically given rights to LL for everything they ever uploaded to Second Life. They had to agree to the TOS to get in to remove all that stuff. But I think, they’re putting themselves in a good position to make a valid argument should they take matters to court. I doubt anything short of such drastic action has any chance of beating the current TOS and preventing rights being granted to LL.

I can find nothing in the TOS nor am aware of any legal precedents that says each TOS version applies to the item it was uploaded under. As best I can tell, there are not multiple TOS versions in effect. There’s only one TOS in effect, ever. There has only ever been one TOS. It has changed… several times.

If you think otherwise, ask an attorney or find a legal precedent. In all the precedents that I know of there is only one TOS, which is the TOS you and the Lab agreed to. A TOS version applies only to you, not your stuff. You made the agreement, not the stuff. The last TOS you agreed to is the binding document between you and Linden Lab that covers your stuff no matter when it was uploaded. And the TOS tells you it is the ONLY agreement between you and Linden Lab and the current TOS supersedes all previous agreements. This is not an incremental set of agreements.

I suppose that ‘last agreed to TOS concept’ is why the lab keeps copies of the TOS archived. If you’re smart you also keep copies of the TOS you agreed to. In this regard I’m not so smart, I don’t keep copies of the TOS.

Again, if you think otherwise, ask an attorney or find a precedent. Otherwise, this is my story and I’m sticking to it.

What Can You Do?

In a previous article I went over what one might be able to do to protect their rights. The course of action you choose probably will have mostly do with what you hope to accomplish. If you want to protect your intellectual property rights, you take one course of action. If you want to push Linden Lab to change the TOS, you probably take another course of action.

To change Linden labs thinking we need to do something that gets their attention. If you watched Elementary last night (season opener), you saw Sherlock’s brother pull a rather unique stunt to get Sherlock’s attention. He had Sherlock stuff from Sherlock’s previous home in a storage locker. He blew it up. We would need to do something similar.

We can stop using Second Life or we could stop uploading content. But, no one is sure how much impact that would have or how long it would take the Lab to notice or if they would. Plus, I wonder how many creative types and merchants in SL have actually realized the TOS changed? Or be willing to stop uploading content?

DMCA Takedown Notices might get their attention. One would need to stop using Second Life. That means no logins to the world or the websites. Stop using your ID and password. Send a registered letter to Linden Lab stating your position:

  • State you did not realize the implications of the change in section 2.3 until now.
  • State you have stopped using Second Life and its other services.
  • State your letter is a formal request for Linden Lab to remove all of your content from Second Life.
  • State you are giving them 30 days to remove the content before filing a DMCA complaint.

This is drastic. It means giving up Second Life until after all your content is removed to gain a questionable legal position one hopes improves their position. You should contact an attorney before writing such letter and seek formal legal advice. But, I think, something like this will put you in a good legal position to protect your creations and hopefully avoid that irrevocable thing. Again, check with an attorney.

It certainly should get Linden Lab’s attention. But, it would take a lot of people doing that to get their attention. 

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

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