LL’s new ToS: changes and their impact (UPDATED)

UPDATE (21 October 2013): I added one paragraph in the end of the article with another adverse implication of the new ToS – Many thanks to Exotix (Inara Pey).

In August, shortly after the acquisition of digital distribution service Desura, LL changed Second Life’s Terms of Service. About a month later, the changes in Section 2.3 of SL’s ToS were picked up by the community, leading to heated discussions everywhere (such as the forums). On Thursday, I presented a long post covering as many aspects of this matter as possible. I believe now is the time to break things down, in order to cover each particular topic. This is an important issue and, if we are to offer something constructive to the community, we must first understand the real impact of these changes. First, let’s have a look at them, as documented by ON SL:

Section 2 became largely a revision of Section 7

This means, in short, that the old Section 7 has now been incorporated into the new Section 2. More specifically:

  • The new Section 2.1 incorporates the old Section 7.6
  • The new Section 2.2 incorporates the old Section 7.7
  • The new Section 2.3 incorporates the old Section 7.1 and Section 7.2
  • The new Section 2.4 incorporates the old Section 7.3
  • The new Section 2.5 incorporates the old Section 7.4
  • The new Section 2.6 incorporates the old Section 7.5
  • The new Section 2.7 incorporates the old Section 7.6, Section 7.7, and Section 7.8

Of the entire Section 2, it is 2.3 that sees the most significant changes from the wording of its counterparts in the old Section 7. Other parts of Section 2 have changed as well, but these changes are minor and don’t point to any change in Linden Lab’s policy.

Section 2.3 – in full

The revised Section 2.3, at the time of writing, is as follows (empases mine):

You retain any and all Intellectual Property Rights you already hold under applicable law in Content you upload, publish, and submit to or through the Servers, Websites, and other areas of the Service, subject to the rights, licenses, and other terms of this Agreement, including any underlying rights of other users or Linden Lab in Content that you may use or modify.

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.

Because the law may or may not recognize certain Intellectual Property Rights in any particular Content, you should consult a lawyer if you want legal advice regarding your legal rights in a specific situation. You acknowledge and agree that you are responsible for knowing, protecting, and enforcing any Intellectual Property Rights you hold, and that Linden Lab cannot do so on your behalf.

Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Content, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration or remuneration for any of the rights granted in this Section.

Except as otherwise described in any Additional Terms (such as a contest’s official rules) which will govern the submission of your User Content, you hereby grant to Linden Lab, and you agree to grant to Linden Lab, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You agree that the license includes the right to copy, analyze and use any of your Content as Linden Lab may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service. The license granted in this Section 2.3 is referred to as the “Service Content License.”

Linden Lab has no obligation to monitor or enforce your intellectual property rights to your User Content, but you grant us the right to protect and enforce our rights to your User Content, including by bringing and controlling actions in your name and on your behalf (at Linden Lab’s cost and expense, to which you hereby consent and irrevocably appoint Linden Lab as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).

Paragraphs 1 to 3 now incorporate Sections 7.1 and 7.2 of the old ToS verbatim, as per the previous LL policy that:

  1. Allows content creators to retain all intellectual rights they already had, subject to LL’s ToS;
  2. Requires that any content you upload must be content you have a legal right to upload;
  3. You (and not LL) are responsible for knowing and enforcing your intellectual property rights w.r.t. your own User Content.

Paragraph 4 is new and concerns moral rights. With this paragraph, LL inserts a piece of shoring language concerning moral rights. with this paragraph LL essentially tells you that someone else has every right to modify an object you’ve made in a way that you may not agree with or may even find objectionable – and you won’t have say in it. For instance, someone may take an unscripted full perms bed you sell as part of a creators’ kit and add adult animations to it, even though you might personally not like this. This is something that has always been implied, but now it’s also on paper – so, I believe LL here are being transparent. Then again, if you don’t want people to modify your objects in ways they like (regardless of whether you like these modifications or not), it’s pretty obvious that you shouldn’t have given them modify permissions in the first place.

Paragraph 5 is the one that caused all the recent furore. It includes the two paragraphs of the old Section 7.1, as well as some new terms and conditions. In this paragraph, you grant LL a very broad licence regarding the use of your content in perpetuity. Several content creators have expressed concern that this licence allows LL to sell, resell and even give away their content for any purpose, without any compensation to them.

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