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.