I’m bring this up because I saw some people proclaiming we can use Creative Common licensed items within SL and with the Linden Lab Terms of Service (LL TOS). This is an area where people have to sort out intention, time, and who/when complexities to make decisions.
To actually know what one can do in this regard you must consult a licensed intellectual properties attorney and even then you will only get an opinion. Until a judge rules on a matter it is all opinion.
Going back a bit in time, many think the legal panel discussions (UCCSL) in SL revealed we do not grant SL ownership. Their idea is the TOS only APPEARS to do that but not really. Also, that it was never the INTENTION of LL to take ownership.
You can hear the panel discussion (3 hours) from links in my article: Second Life TOS Update 2013-42.
I read the TOS and have heard the UCCSL panel attorneys say the written meaning of the TOS is that we grant complete, non-exclusive, perpetual rights to LL for anything we upload to SL. They become an equal co-owner with us. They do not take our rights nor do we give them away. But we DO GRANT the Lab rights equal to ours. I don’t know how people can argue what the text of the LL TOS plainly says is not what it means. The intention of LL may well be that they did NOT intend to take full ownership of our stuff uploaded to SL. But, that INTENTION doesn’t appear in the text of the TOS.
One can operate on what they are telling us and saying the Lab’s intention is. But, it is a risk. How much of a risk is debatable and, I think, a personal decision. At least until it gets to court.
The next problem is Creative Commons (CC) licensing. Many CC items only require the creator of the original work be acknowledged. I often use CC images in my blog. You see those as Image by: [some name] @ Flickr.
The idea is that as a merchant, vendor, or even just a user of the work you can attribute the original author in a note card with the product or in the Market Place page or somewhere near where it is displayed and be OK. You will have fulfilled your part of the CC agreement. But, that is not going to work with the LL TOS as it is now.
Section 2.3 – paragraph 2: In connection with Content you upload, publish, or submit to any part of the Service, you affirm, represent, and warrant that you own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to use and authorize Linden Lab and users of Second Life to use the Content in the manner contemplated by the Service and these Terms of Service.
So, what is the contemplated use? The TOS mentions that the Lab will not be providing you attribution and you are required to waive any right you may have to attribution. So, you can’t reasonably expect they will provide a third party attribution.
By agreeing to the LL TOS we agree not to upload anything to which we do not have full rights… There is very little wiggle room. Basically we must be able to grant ALL copyright rights to LL. There is no provision to NOT grant LL full rights. If we can’t, we agreed not to upload the items.
2.7 You agree to respect the Intellectual Property Rights of other users, Linden Lab, and third parties.
You agree that you will not publish, or submit to any part of the Service, any Content that is protected by Intellectual Property Rights or otherwise subject to proprietary rights, including trade secret or privacy rights, unless you are the owner of such rights or have permission from the rightful owner to upload, publish, or submit the Content and to grant Linden Lab and users of the Service all of the license rights granted in these Terms of Service.
CC content has reserved IP rights. Therefore you MUST obtain the right from the original author to grant LL full rights to the item. Good luck with that.
The serious gotcha is we agreed to hold the Lab harmless if we do upload something we do not have full rights to. So, the Lab can use our uploads any way they want and we are liable to anyone who’s rights are violated by the Lab’s use of the item.
9.4 You agree to indemnify Linden Lab from claims relating to your use of the Service.
At Linden Lab’s request, you agree to defend, indemnify and hold harmless Linden Lab, its officers, directors, shareholders, employees, subsidiaries, and agents from all damages, liabilities, claims and expenses, including without limitation attorneys’ fees and costs, arising from: (i) your User Content; (ii) your acts, omissions, or use of the Service, including without limitation your negligent, willful or illegal conduct; (iii) your breach or alleged breach by you of this Agreement, including without limitation your representations and warranties relating to your Content; (iv) your violation or anticipatory violation of any applicable law, rule or order in connection with your use of or activities in the Service; (v) information or material transmitted through your Internet Device that infringes or misappropriates any Intellectual Property Right; (vi) any misrepresentation made by you; (vii) Linden Lab’s use of the information that you submit to us; (viii) your purported “ownership of any Usage Subscriptions or virtual items; or (ix) the increase or decrease in “value” or loss of Usage Subscriptions or virtual items if Linden Lab deletes, terminates, or modifies them (all of the foregoing, “Claims and Losses”) . We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. You will not settle any Claims and Losses without, in each instance, the prior, written consent of an officer of Linden Lab.
Consider. If I take a CC image with attribution only requirements, upload it to SL and in my distribution I do properly acknowledge the original author. Next someone at LL sees it and thinks it will be a great in a promotional piece and distributes the image, or whatever, all over the Internet without any attribution. They, the Lab, gets sued for failure to provide proper attribution. They will in turn sue me for violation of the LL TOS and I will have to pay for all the Lab’s damages, fees, and awards to the original author because I agreed to the LL TOS. I have essentially signed a contract that says I’ll do that.
So, some of the simple comments you hear saying you can use CC content within SL are, in my opinion, misguided at best.
Section 2.3 paragraph 4: …you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Content…
Because you agreed to the LL TOS by logging in and uploading an item, you have agreed you know the TOS says this and that LL will not be providing attribution. When using CC content of others you do NOT have the right to waive attribution requirements, unless you explicitly obtained it. That means by extension and reason you are violating the terms of the CC agreement you committed to when acquiring the item and in addition have violated the LL TOS by not having the right to waive attribution and uploading.
Whoever violates these agreements is taking on significant liability. While there is some undefined small probability of being caught, the possibility of being caught is real. The possible cost is so out of proportion to probability of being caught I think I’ll do what I can to avoid the possible problem. Sort of like winning the lottery in reverse.
So, as the LL TOS is written, we pretty much need to be the sole creators of the things we move into the SL system. There is room for importing things from the public domain. But, CC content is certainly not legally importable to SL.
Of course this is just my opinion. But, I find the writing in the TOS simple and clear. But, ask an attorney if you really want to know and certainly before taking any legal risks.