The Twitpic’s ToS is amazingly bad. Pointed out in the meeting is that if I want to use a work you placed on Twitpic, the ToS says I am to get permission from Twitpic not you. Also, I am to credit Twitpic for the work, not you. It appears to me that Twitpic could commercialize your work for their profit without any need to reimburse you. It is a terrible ToS.

LinkedIn goes further requiring you to grant them ownership of anything and everything you place in LindedIn. Put a business idea on LinkedIn and it is theirs to do with as they please and that probably includes stopping you from using it.

So, while SL’s ToS is not that great, it is not as bad as a significant portion of the ToS agreements for other social media. Remember this point. I’ll come back to it.

The SL TOS

(About time mark 0:15:00 in audio.) With the SL ToS we get to retain our ownership and copyright to our work. This is good.

The ToS requires that we own the rights to content we upload. If I build a model in Blender and give you a copy to work on with me and have not explicitly granted you rights, you cannot legally upload the model to SL. But, there is nothing to stop you doing that other than knowing it is illegal and the possible bad consequences down the time line. This point is basically universal in  ToS agreements.

Linden Lab is not going to pay you for your content, which is common.

Also, Linden Lab can file suite in regard to your content, on your behalf, and you appoint LL as your attorney in such suits. WTH!?! Not good or a common clause.

You grant Linden Lab non-exclusive rights to your content, complete, unrestricted, unlimited, unconditional, perpetual, and irrevocable to use for any purpose what so ever. This is a serious problem and what has people upset.

On a technical legal point the words about sell, resell, license to sell, and disclose are rights’ terms that usually only apply to patents. Without any of those words in the ToS we have already granted them the rights they need to sell, license, and disclose our work.

California law throws in a kink for contract law. The state has codified unconscionability. This is a concept that deals with contracts that are unfair to the point that a free, reasonable, informed, and sane person would not sign it. This should set the stage for a class action lawsuit in spite of the arbitration clause in the LL ToS. Many think the Linden ToS is unenforceable. Probably due to this concept.

On the face of it ToS agreements where one clicks yes, are prima fascia unconscionable. But, recent Supreme Court cases have resulted in the overturning of California law negating class action waivers, which the LL ToS has. So, now they stand and we are stuck with arbitration. This means there is likely no way to get a lawsuit going that a California court won’t throw out and send to arbitration. AFAIK, there is no such thing as class action (large group) arbitration.

As to what content is included in the recent ToS change, the answers is everything that has ever been uploaded. All three panel members agree on this point. The panel simply answered it does include everything whenever uploaded. They suggested it would be too hard for services like this to track sets of rights related to different ToS agreements based on dates. I pointed out this problem in an earlier article as being a matter of how the ToS is worded. (Click ToS in the article info on the right side for previous articles) This is a computer based world and LL is already tracking the pertinent information needed to handle items based on ToS from different eras.

The question came up again later and it was pointed out the ToS says, ‘any work’ not ‘any work after [some date]…’ So, it is a foregone conclusion that all content is included regardless of date uploaded.

The question came up as to whether we could get the ToS changed to allow use of Renderousity and CG Textures in SL. I think the answers provided by the panel show confusion on the point and a misunderstanding of the Renderousity and CG Textures ToS (Time mark 1:50:00+/-). The attorneys thought both had to grant rights such that their content can be sold in SL and were just rabble rousing. I deal with all sorts of stock photo sites and believe ren and CG can license the use of their content such that it was useable and now isn’t because of the SL ToS change.

Do the August changes change the ownership of and rights in machinima? The machinima section of the ToS did not change. But, the part saying ‘anything made in SL’ is reason for concern. The Lab can certainly argue they own rights in your Machinima made in SL.

What affect does living in another country and agreeing to the ToS have? Very little. The ToS has a jurisdiction clause. So, any court in the world will use California and US law to decide the dispute over ToS related rights. It is what we agree to when we accept the ToS and enter SL. But, there may be some local rights or twists that would allow additional rights.

Potential Problems

If you make a machinima in SL your work could be considered a derivative work to which LL has rights. I think this is a reach. Consider. If you take a photo of the Lincoln Memorial Monument the builder of the monument has no rights to your photo.

The ToS is worded such that if you are in SL filming you are creating content in SL. While we do not believe LL would try to claim rights to the machinima, the ToS is worded in such a way it would be possible for LL to argue they have rights in the machinima.

One of the big problems comes up when you decide to sell you work in the RL market. So, publishers often want you to provide them assurance of exclusive publishing rights. If you work has been in SL you cannot do that, as LL has the right to publish it too.