As everyone who hasn’t been living under a sculptie rock knows, LL has changed its Terms of Service on the 15th of August. This change has been met with a copious flow of virtual lachrimal fluids and pretty much equal amounts of drama w.r.t. the modifications to Section 2.3 of the ToS. I’ll be honest and blunt from the outset: I don’t like the wording in Section 2.3 at all, because it’s reaching too far; much farther than necessary or meaningful.
However, this is no excuse for drama-whoring. Drama-whoring is, to put it politely, counter-productive. To effectively oppose something, you need to have arguments based on solid logic and not on false assumptions. You need your arguments to be structured and well-supported by facts. And, if you are given a chance to negotiate a change in what you don’t like, you need to go to the negotiations with a number of proposals that are likely to be accepted by both parties. At least that’s what real professionals do. That said, I am not even going to pretend that I’m satisfied by the SL community’s response and the coverage of this issue. Honestly, most of what’s been written is complete and utter hogwash.
The drama flames have been fanned by the announcements issued on this matter by CGTextures and Renderosity, which were both touted by many SL bloggers as “proof” that Linden Lab is somehow trying to “steal” people’s content. I have covered both announcements on my blog (CGTextures and Renderosity: 1 and 2), quoting them verbatim (just in case they decide at some point to revoke them and delete them) and commenting on them, albeit with some reservations back then. The reason that I had those reservations and misgivings was that I was not entirely sure of what my own understanding told me, as I am not a lawyer. However, I am now given the opportunity to revisit both announcements, with greater confidence in my thoughts and conclusions, thanks to Vaki Zenovka (via her alt, Agenda Faromet), an RL lawyer that, together with her colleagues Tim Faith (SL username: Yoss Kamachi) and Juris Amat, held a legal panel on the 19th of October, in order to help clear things out and answer people’s questions. Also, I must thank Inara Pey for transcribing the legal panel and making things accessible to everyone.
Revisiting CGTextures’ announcement
First of all, please use the links provided in the previous paragraph to open the announcements (both CGTextures’ and Renderosity’s) in a new browser tab (or window) – for brevity’s sake, I won’t quote them here again in their entirety. Also, I had commented on CGTextures (although I had a few misgivings back then) earlier. At first sight, it appears that CGTextures’ proprietor cuts SL users a little slack by saying “[i]f you have used our images on builds uploaded before 6 September 2013, you can continue to use, sell, give away those builds just like before.” But, what about using those CGTextures-sourced textures on new builds? Then you’d be running afoul of the new licence, even if you had modified the initial texture so much that it would only be useful in a specific build or in a specific part of a specific build: “Even when a texture is heavily modified we can no longer allow it for new uploads to Second Life. We would be ok with it, because such textures are usually not useful apart from a specific model. But unfortunately it is impossible to define in legal text when a texture is sufficiently modified to allow such use. This would create too much confusion, to keep things clear we cannot allow any new use of our images in Second Life.”
The announcement contains a factual error: It is not impossible to determine the extent to which a texture has been modified. A .PSD (for Photoshop users) or .XCF (for GIMP users) file contains all the layers that were added to the original image, and it is really not impossible at all to determine if a whole texture or a small part of it has been used, or if it has been mixed with other images (either originally created by the user or bought from other sources and adapted to suit). Even other image file formats can be examined to determine this. Of course, this would require proper analysis, which could cost money, were CGTextures to sue a customer that decided to use a texture of theirs in an SL build.
Another problematic area with CGTextures’ announcement is the “new uploads to Second Life” part; it is confusing and shows that CGTextures’ proprietor has a very limited understanding of how SL works as a platform. Does it mean that, even if you had uploaded a certain texture you bought from CGTextures before 6 September 2013, you cannot use it to texture new products? Does it mean that, from 6 September 2013 and on, you may not upload new textures you bought from CGTextures or textures you made based on textures you bought from CGTextures?
What I wrote w.r.t. CGTextures’ announcement applies to Renderosity’s announcement as well: Determining how extensively a texture has been modified is not impossible at all. Also, Renderosity demonstrates a complete lack of understanding of how Second Life as a platform works. As a matter of fact, they fail to understand how Second Life’s OpenSim clones work too. They say “[i]n the past, we have allowed a Buyer to use Renderosity products for their use in the Second Life virtual world, as long as the Buyer does not sell or give away the files.” But when someone uploads a texture or a mesh model to Second Life, they neither sell nor “give away” the files. The act of giving something away, and I invite the people at Renderosity to look this phrasal verb up in any dictionary they like, is to give something as a gift (with everything that gifting encompasses). When you upload a mesh model or a texture to Second Life, you don’t give it away to Linden Lab. You don’t give it to LL as a gift. When you upload a texture or a mesh model to Second Life, you do so in order for it to become available and functional in-world. Available and functional for you to sell, use, or even “give away” as a free, promotional product, as a free item to be reviewed by a blogger, or as a demo for people to “try before they buy.” For an explanation of why Linden Lab and other grid-based virtual world providers need you to licence your content to them, see this post.
So, Renderosity’s announcement is factually wrong and terribly flawed in logic: Contrary to what their announcement claims, the original files are not “sold” or “given away” to anyone – they stay on their owners’ (i.e. the people who bought them from Renderosity) storage media. What is uploaded to SL is a copy – and even this copy is then processed by SL’s system accordingly (for instance, textures are automatically resized) to fit the technical constraints of the virtual world.
Other problems with Renderosity’s announcement
1. Was it ever OK to use Renderosity content in Second Life and OpenSim?
Here, we need to have a look at Renderosity’s Marketplace EULA, as it stood at the time they announced the prohibition. In case they modify it in the future, I also quote it verbatim here (emphases mine). This licence is extremely strict and effectively prohibits use of Renderosity products not only in Second Life, but also in any similar virtual world – recent changes to LL’s ToS notwithstanding. Here’s why:
- Non-transferable licence: This means that you may not allow someone else to do with the product you bought from Renderosity what you, the buyer, are allowed to do, regardless of the validity of the reason for which you may want or need to grant such rights to a third party. This includes, of course, contracting someone more skilled than you to work on it – it’s not allowed under Renderosity’s EULA. It also means that paragraph 2 of Section 7.1 of SL’s old ToS is also prohibited: “[F]or purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service.” Plain and simple as that.
- “The Buyer shall not redistribute the Product, in whole or in part, in any file format for sale or for free. The Buyer shall not store the Product any place where it could be used by another person or party (whether it is on a network or on the Internet). The Buyer shall not convert or recreate the Product to any other media format and re-distribute the files, regardless of whether it is for sale or free.” What does this mean, in practical terms? That you simply may not upload a Renderosity product to Second Life, InWorldz, AviNation, Kitely, or any other virtual world grid. Why? Because, by uploading a Renderosity product to any of the aforementioned grids, you:
- Are storing the product in a place where it can be used by another person or party.
- You are (in a very wide sense) redistributing it.
- You are (in all likelihood) converting it to another media format or allowing it to be converted to another media format and redistributing the resulting files.
All of this means that Renderosity’s Marketplace EULA is a licence that simply never permitted – if we are to talk strictly technically – use of its products in any grid-based virtual world, even if you want to use these products exclusively for your own, personal, one-off builds; not to mention that much of it makes zero practical sense and would cause the likes of Glyn Moody (who has long advocated against copywrong licences and practices) to raise an eyebrow – at the very least. Of course, Renderosity, whose staff knew about it all along, was more than happy to have clients from the “losers” in Second Life (see the comments under its announcement) and other virtual worlds and take their money, so they sidestepped the fact that their EULA effectively prohibits usage of their products in any grid-based virtual world, as seen in the points I mentioned above. The only loophole provided is the clause that says “[f]or Merchant Resource Products, additional permissions or limitations of rights will be specified in of each Product’s readme file.” By default, though, it’s pretty clear that Renderosity has never been SL- or OpenSim-friendly. But the problems with Renderosity’s announcement don’t end here.
2. Deliberate, petty ambiguity that contains a thinly-veiled threat
One thing that Renderosity does not make clear is whether this prohibition is retroactive or not. Let’s say you’ve used stock content from Renderosity in your SL merchandise. What do you do with it now? Do you still have the right to sell these goods? Or do you have to withdraw them from your in-world and/or SL marketplace store? Renderosity’s announcement is ambiguous and effectively tells the people that have bought stock content from Renderosity and used it in their SL merchandise that they are now facing the risk of legal action for continuing to sell products that contain Renderosity 3D models, textures or whatever, regardless of how much Renderosity content they actually contain. This penalises Renderosity’s customers. It’s – at the very least – a prime example of (as we say in my country), having a problem with the donkey (Linden Lab) and beating the saddle (the users). Mind you, as I mentioned before, Renderosity was more than happy to take the money of these users it now threatens with this ambiguous announcement. Make no mistake here: Renderosity’s announcement was made so ambiguous deliberately. It’s a thinly-veiled threat against their own former customers, and it amounts to bullying.
A legal expert’s opinion
When asked during the 19 October legal panel about the reaction of these two stock content providers, Vaki Zenovka (through her alt Agenda Faromet) responded with the following words (emphases mine):
14:37 AF: There is nothing that has changed in the Terms of Service that drastically affects CG Tech’s (editor’s note: The company’s name was mistaken here) and Renderosity’s terms to the point that they should have reacted the way that they did. If they don’t allow reselling, then they should never have allowed uploading to Second Life in the first place. And that they have gone off the rails and said, “OK, you can never allow use of our stuff in Second Life now” is, I think, an over-reaction; I think its them jumping on a bandwagon and taking the opportunity to get some press and bash Second Life. I think it’s silly, and I’m irritated and disappointed in both of them for rabble-rousing and poking at what is already a very sensitive hornet’s nest. It’s embarrassing.
15:49 AF: You have always been able to sell stuff in Second Life; they should never have allowed upload to Second Life if they had a problem with reselling textures. Businesses can always be sold. If they had a problem with the idea that you could upload stuff to a business that might someday be sold, it’s just silly. There. I’m done.
Now, Vaki/Agenda has confirmed exactly the conclusions I had reached with my own understanding. The reaction we saw from CGTextures and Renderosity is disproportionate and, especially in Renderosity’s case, it crosses the line and shows a petty, overly dramatic and essentially bullying attitude towards the very people that paid Renderosity good money to buy its stock content (which, as far as I can understand, has been submitted to Renderosity by original creators that are not its employees). Also, as I said, Renderosity’s prohibition is not restricted to Second Life, but applies to any grid-based virtual world – including, but not limited to, OpenSim grids. The fact that Renderosity’s announcement also applies to OpenSim exposes all those OpenSim and Second Life “pundits” that touted CGTextures’ and Renderosity’s announcements to bash Second Life and Linden Lab. It exposes them for either not knowing what they are talking about or deliberately distorting the facts in order to tell the story they want to tell. Question is, are you willing to offer your patronage to companies that behave this way?
- Terms of Service | Linden Lab (Section 2)
- 6th September 2013: Terms of Service update, using our images in Second Life is no longer allowed. – CGTextures
- Renderosity Products NOT Allowed at Second Life – Renderosity
- CGTextures’ announcement as quoted on this blog
- Renderosity’s announcement as quoted on this blog
- Some thoughts on Renderosity’s announcement (this blog)
- ToS changes: Legal panel discussion transcripts – by Inara Pey
- My comments on CGTextures’ announcement
- Why LL and other virtual world providers need you to licence your content to them (this blog)
- MARKETPLACE END USER LICENSE AGREEMENT on Renderosity.com
- Renderosity’s Marketplace EULA as quoted on this blog
- ToS changes legal panel transcript (5): Q and A session (2) – by Inara Pey
- Coverage of ToS-related issues on this blog
- ToS-related articles by Inara Pey