Continuing my analysis of paragraph 5 of Section 2.3 of the new ToS, I want to focus on an aspect not really touched upon by most of the people protesting the “for any purpose” clause. It’s the issue of moral rights, which is introduced in paragraph 4. This paragraph is a completely new section which, as said, concerns moral rights for user content and, at first, seems more than a bit odd. Let’s have a look at what it says:
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.
As ON SL comments, moral rights are not something US courts are generally swayed by when they try intellectual property cases. Many states, however, do have laws concerning moral rights in copyrighted works. For instance, a waiver of this sort makes sense in a state like California, which was the first state in the USA to provide for any sorts of moral rights in copyrighted works, would make sense. Moral rights, as Wikipedia tells us, include the right of attribution, the right to have a work published anonymously or pseudonymously, (n.b. This right is being eroded in our days by several social networks’ “Real Names Only” policies and also by several “intellectuals” who seek to discredit others because of their anonymity or pseudonymity) and the right to the integrity of the work.
Integrity of the work
ON SL opines that this waiver seems like it is “shoring language” (basically: a CYA – “Cover Your Ass”), in light of the “even if it is altered or changed in a manner not agreeable to you” clause. 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.
It is here that people should read what the article on the permissions system in Second Life’s Wiki says:
If modify is enabled, you can edit properties like item name or object scale. Modify permissions also grant you the ability to delete an object – for example, if an object has been shared with group in world, then any member of the group can modify, and therefore delete the object.
When an object is next owner no-modify, that permissions setting is interpreted as ‘no one can create derivative works.’ For example, if you sell a motorcycle without modify permissions, the buyer cannot make a slightly longer or re-textured version of that motorcycle without building one from scratch.
If an inventory item inside of an object is no-modify, the object itself can still be modified. Conversely, if an object is not modifiable, it’s contents cannot be modified.
The scope of the “modify” permission is, as anyone who’s ever modified something with this permission enabled knows, such that the original object can be modified beyond recognition, according to its new owner’s tastes and desires – and, as I wrote earlier in this post, these tastes and desires may not coincide with those of the original creator’s. This, of course, may violate the original creator’s (whether that creator is someone who makes vehicles or someone who makes furniture or even an artist) right to the integrity of the work – but here’s the catch: They gave permission for this to happen. And this permission, as per the ToS (both the new and the older ones) is irrevocable, which means that they can’t suddenly call LL and say something like:
“Um, hello LL? A year ago I made this armchair for which I gave copy/mod/no transfer permissions and I suddenly realised that John Doe can attach a freenis on it. I want you to remove them from your asset server or make them all ‘no mod’ with this adjustment being retroactive. Kthxbai”.
This simply can’t happen and won’t happen, because it would most likely affect hundreds, if not thousands of buyers who didn’t want to turn said armchair into an X-rated device, but may have wanted to recolour a prim here and there, change the texture, etc. Just because someone might want to do something distasteful with your product, you could end up deleting others’ furniture (stuff they paid for) or removing a permission they paid for – many buyers in SL choose to support creators that give them copy/mod permissions by preferring their products over those of others that won’t let them edit these products to taste.
While ON SL focuses on the right to the integrity of the work, I think an equally important aspect of this matter is attribution. Let’s talk about photography in RL. A photographer takes a photograph of the interior of someone’s house for a home decoration magazine – let’s say a photograph of a kitchen. The kitchen may have cupboards made by brand A, appliances from brands B, C and D, a ceiling light from brand E, cutlery from brand F, and so forth. Would you expect the manufacturers of the cupboards, the fridge, the kitchen, the dishwasher, the microwave oven, the ceiling light, the cutlery etc to be credited, have the model names of the products mentioned in the article (or interview) or get a cut of the profits the magazine makes from that particular issue? I don’t think so. Chances are, even the owner of the house won’t be able to remember which cutlery model they bought. Not to mention that it would be irrelevant, because such articles are not meant to advertise any company’s current range of products, but to give others an idea of how they can arrange and decorate their own kitchen. Likewise, in a movie where we have a car chase, we also see other cars from all sorts of different manufacturers on the street. You won’t see the car manufacturers credited and they certainly don’t get a cut from the profits. Neither do the companies that make the street lamps or the traffic lights or the trash cans that may be seen in that scene, now that I think about it. On the other hand, if we have a photograph of a specific piece of art, it makes perfect sense that the artist is credited and the name of the artwork is given.
How does this apply to Second Life, though? Just have a look at all the blogs that cover SL destinations. Do you see the virtual photographers write in the captions “here, the decrepit car you see is by content creator X, the trees are from content creator Y, the barn is from content creator Z…”? No. You don’t. And you shouldn’t, because that’s beside the point. The subject of the blog post is the region, not the individual objects sitting in it. It would be idiotic – to say the least – to demand of the virtual explorer to start right-clicking on every single object they see in a sim and make a list of products depicted (trees, grass, chairs, whatever) in each and every snapshot. If such a demand was made by content creators, you’d see virtual landscape photographers up in arms – and they’d be right! Likewise with machinima (regardless of who directs and produces them): Do you expect their producers to credit the creators of each and every object that is seen in the sim where the movie was shot? Of course, to give credit to an artist whose work is the subject of a few photographs, a blog post, or a machinima – that makes perfect sense and is the right thing to do.
All these things really should be no-brainers, but, sadly, they are not. This is why I believe this CYA paragraph was added. Personally, I think it covers more posteriors than LL’s – it also has the potential to protect the rights of bloggers, virtual journalists, virtual photographers, machinima producers and even consumers and budding content creators.
Some may ask now “why are you breaking Section 2.3 to smaller parts?” The reason is that I want to help people understand what really affects SL content creators and users adversely and why it does so. That way, the effort to influence LL will be focused, properly documented and the people trying to influence LL into changing the controversial part of the new ToS will be equipped with the necessary arguments to do so, without making LL get defensive and shutting their ears. Remember, overly emotional reactions of the “LL IS TEH ENEMY!” kind are the last thing we need; it’s what LL has gotten used to from the very first days of Second Life and they simply don’t listen to anything that sounds like it is imbued with this mentality. We need a calm, level-headed and focused approach if we’re to achieve anything.
- Terms of Service | Linden Lab (Section 2)
- IP Related Changes in the New TOS – On SL
- Moral rights – Wikipedia
- Attribution (copyright) – Wikipedia
- Anonymity – Wikipedia
- Pseudonym – Wikipedia
- Permission – Second Life Wiki
- Permissions FAQ – Second Life Wiki
- Coverage of ToS-related issues on this blog
- ToS-related articles by Exotix (Inara Pey)