This post is certainly going to be one of the most difficult for me. No, it’s not personal, intimate or anything. It’s just that what I see makes it very difficult for me to maintain a civil tone – and it’s not only about Linden Lab’s decisions, but also about the way things are affected by the appalling mode of discourse in SL forums and blogs on important matters. I’ll try to do the best I can, though.
It’s already well-known to pretty much everyone that follows SL-related news that the changes incorporated to LL’s ToS on August 15th, 2013, caused significant controversy among SL users, most notably certain content creators. They also spawned two controversial announcements by CGTextures and Renderosity, which I have covered rather extensively here. It’s been nearly a year since then. Throughout this time, much was said, and very little was done. On Wednesday, the Lab announced (in an almost self-congratulating way) that they amended Section 2.3, which caused the controversy. For comparison’s sake, in my previous post, I covered the announcement and also linked to a Google document where I present both the post-8/15/2013 ToS and the new ones side-by-side.
Has anything changed, really?
If you scroll down to page 5 of my Google document, you will see what was added. I don’t see anything that implies any of the changes announced in LL’s official blog post. Instead, there was a slight reshuffling of words and a very poorly-written piece of text was added in parentheses. More specifically:
- They moved the “sell, re-sell, or sublicense (through multiple levels)” part from the beginning of the list to the end. Does this constitute a meaningful change? In my eyes, no.
- And they added this piece of text: “(with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service)”.
These are the only changes that were made. Do they address the concerns expressed over the past year? Let’s see…
Rights you grant to LL
Under the latest iterations of the ToS, you grant Linden Lab the following rights to the content you upload, and the licence you grant is perpetual and irrevocable:
- Reproduce (i.e. copy)
- Publicly perform
- Translate (Vaki Zenovka/Agenda Faromet argues it’s the same as “modify”, and I have no reason to think she’s wrong – she’s a very good IP lawyer in RL)
- Make derivative works of (obviously the same as “modify”)
- Sublicense (through multiple levels)
- Otherwise exploit in any manner whatsoever
As said, the only “change” concerning the rights you grant LL regarding your content has been that their ordering in the list has changed a bit. The list was reshuffled, but what’s in it is still the same. So, in a nutshell, what has really changed? Nothing.
Besides all that, the list of rights you have to grant LL is extensive, and some may find it daunting. However, most of them (with the notable exception of “otherwise exploit in any manner whatsoever”) are rights that are absolutely necessary for Second Life to work. In fact, you would need to grant the same rights to any other similar virtual world provider if you were to be able to enjoy and employ its services. Why?
What rights do you need to grant LL and other virtual world providers?
As I have explained here, if virtual worlds are to be able to provide their services, they need to do various things with your content. Virtual worlds (SL, OpenSim, etc) are technical and technological platforms that allow users to:
- Create their own content
- Modify their own content
- Modify others’ content, if they have been given appropriate permissions
- Import content, either created by them or acquired by third-party sources, for the purposes of:
- Creating a base for a certain product (such as uploading a mesh model or a sculpt map)
- Enhancing/finishing/modifying their own content
- Enhancing/finishing/modifying others’ content for which they have been given the appropriate permissions
- Sell their own content
- Re-sell or give away others’ content, if they have the appropriate permissions
- Manage content (change permissions, rename, copy, delete, link to)
- Arrange content in-world (for the purposes of decoration, landscaping etc).
Furthermore, all of this content will have to be displayed on our monitors, right? How will this be done? The virtual world (and its provider) will have to serve the data to our computers for rendering. This ought to be obvious, but it often isn’t. Yet, there are some legal requirements if any of this is going to be made possible. You need to provide a licence to Linden Lab, or any other virtual world provider (such as AviNation, InWorldz, Kitely etc), to do all these things for you. Otherwise, they are simply not allowed to do a thing.
When we go in-world (regardless of whether we’re in SL, Kitely, AviNation, InWorldz or whatever) and start ticking boxes, entering parameters, renaming objects, rezzing or deleting stuff in-world… What we are really doing is use a front-end that sends equests to the virtual world’s system to perform these functions for us. If we hadn’t hadn’t given the virtual world’s provider permission to do these things for us, we wouldn’t be able to make anything, rez anything, do anything. And, of course, we wouldn’t be able to sell our stuff. Let’s break it all down to smaller chunks…
By uploading material to Second Life (or any other similar virtual world), we grant the provider the right to store this material on the asset server. Otherwise, it will not appear in our inventories.
The provider needs to be given the right to make copies of our material. Otherwise:
- We will not be able to rez copies of our material to work on and create variants of said material.
- We will not be able to even set permissions on our material.
- The provider will not be able to deliver copies of our material to the people who buy it from our in-world and/or marketplace stores.
The provider also needs to be given the right to not only copy, but also modify and even study our material. Otherwise:
- When we rez a copy of something we made and try to work on it in-world (and this work can be something as simple as renaming the object, or some quite complex editing and rescripting), we simply will not be able to, because the provider’s system will not be enabled to, as no such privileges will have been given by us.
- Without such rights, the provider will not be able to identify the causes of undesirable behaviour in our objects and scripts and work on troubleshooting and bug fixing (such as the problems encountered during region crossings while using vehicles). They also will not be able to work on ways to quell the efficiency of objects and scripts created for griefing.
As far as the right to sell and resell our objects, this is necessary for the function of both in-world and marketplace sales. We upload our objects, make them available for the buying public, and the virtual world’s marketplace or in-world system in turn sells the product on our behalf, i.e.:
- Delivers a copy of our product to the buyer
- Acts as a mediator/reseller agency:
- Takes a fee for the transaction;
- Gives us the remaining part of the price;
- Distributes part of the revenue to whomever else we may want;
In even simpler terms, without our permission, neither LL nor any other virtual world provider can do any of the following things we take for granted everytime we get in-world:
- Store our content on their servers (inventory etc)
- Enable/allow us and others to use it
- Maintain other people’s content after they’ve left SL
- Make it available to the mechanisms that enable the platform to function
- Enable its sale and resale on our behalf with their internal mechanisms that facilitate in-world and marketplace commerce
But that means my content belongs to LL!
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.
This means that you have all Intellectual Property Rights to your content. It’s yours. Period. But, if a virtual world’s platform is to be able to function, its systems and personnel need to have your permission to perform the functions you expect and demand them to perform for you. Remember that your rights to your content are further assured by the non-exclusive nature of the licence you grant LL (or its OpenSim counterparts). The claim that “LL owns your stuff” simply cannot be substantiated in any way whatsoever by anything that is written in the entire body of the ToS. Remember: 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 of Linden Lab in Content that you may use or modify.
“For any purpose whatsoever”…
And here’s the really thorny part. Until 2013, we understood that LL (and any other similar virtual world provider) could take a few snapshots of our regions, which might include trees, rocks, houses, vehicles, birds, etc. that we uploaded ourselves or bought from others, and use these snapshots for its promotional material, without paying royalties to us. After all, when you go out in RL and take pictures to use in a street photography exhibition, do you pay royalties to the companies that have made the traffic lights, the cars, the windows and doors, or the garbage cans that are included in your pictures? I think not.
But still, a contract is a contract, and such over-reaching language simply sounds scary. Almost as scary as LinkedIn’s or Instagram’s, in fact. Linden Lab never explained what it had in mind, and what additional rights it needed.
Various people suggested that the timing of the 8/15/2013 ToS changes (which coincided with the acquisition of Desura) could perhaps point to the Lab having plans to offer Desura’s marketplace as another medium through which its users could sell their wares. They were duly shouted down. To be honest, even I had some misgivings about this notion back then. However, now that LL is working on its next-generation virtual world, it seems that they’ll need permissions (rights) to transfer any existing content that can be transferred there and may want to make the procedure simpler. But, without any clarification from the Lab, we simply can’t be sure.
This, of course, does not make “for any purpose whatsoever” acceptable. The Lab’s ToS need to be perfectly clear as to what the Lab can do with our content, for what purpose, for how long, when, and where. “For any purpose whatsoever” doesn’t provide anything like that. It’s unacceptably over-reaching, and doesn’t help maintain trust between the company and its users. This is precisely the part that had to either be deleted or changed in order to clarify the Lab’s purposes to the users and rebuild trust.
How exactly are SL content creators affected by the current ToS?
The impact of LL’s current ToS was summarised very well by Inara Pey. I’ve mentioned her points before, I’ll do it again now. The post-8/15/2013 versions of the ToS’ Section 2.3:
- Exceeds any reasonable requirements Linden Lab may have in order to continue to provide and promote any of their services
- Potentially allows Linden Lab to make use of people’s IP without reasonable attribution
- Places users in the position of having to assign rights for items to LL when they are not in a position to do so (e.g. in the case of third-party content)
- Requires artists invited into SL to present their work / give a performance to assign rights to Linden Lab they may not wish to grant / are not in a position to grant, unless such rights are suitably caveated
- Impacts the ability of artists and performers with Second Life to strike exclusive deals outside of the platform for material they may have first presented / performed in-world
- Further damages user / company trust.
So, in a nutshell: The people that are really affected negatively by these versions of the ToS are content creators that use stock content from providers with very restrictive EULAs, as they are required to grant rights they are in no position to give, and artists, who simply will not be in a position to trust Linden Lab with their work; exclusivity is not only about the business side of an artist’s work; it is often part of the way an artist expresses themselves through a specific piece of art (such as a work of art that is presented, and then taken apart).
I’ll have to be blunt here. The “community” of SL has been a major contributor to this debacle. First of all, it took roughly two months before people realised what changes had been made, and their reaction was characterised by the hysteria, conspiracy theories and prokanoia that has been making SL’s user base the laughing stock of the internet since 2003. Like it or not, this is how SL users are perceived by others on the net. And no, it’s not about the sex or the griefing; it’s about SL users’ propensity for over-the-top reactions to everything that happens, it’s about the deeply-rooted belief that Linden Lab is inherently evil and constantly plotting to make their lives miserable and rip them off. Uh… OK. If you think this particular company is so bad, what exactly are you still doing in SL and its related forums and blogs? It’s not like anyone forces you to use SL, really. I could understand hating Microsoft and still having to use Windows and Office because they’re the de facto standards for your RL work and your livelihood depends on them. But SL is not the de facto standard for anything you can’t live without.
SL is chock-full of loud-mouthed “saviours”. People (the “LL is the Devil” people) who go around, telling us all we’re sheep and cheerleaders, that we’re doomed because LL is plotting our demise, and that the only way for us to be saved is by believing them and following them. You’ll see them in the forums and in various blogs’ comment sections, littering the whole place with ad hominems, conspiracy theories and commentary that makes Glenn Beck and Fred Phelps look like Paul Mason from the BBC. How I wish I were exaggerating…
This kind of commentary is pure noise, and it drowns out any useful comments. In fact, it’s far worse: It’s censorship. These people derail the discussion, distract from the important issues, draw attention and focus to unimportant ones, or even to non-issues, and change the entire agenda. As for how they censor people… Well, they shout down everyone that doesn’t react to things with “the end is nigh” screams and seek to denigrate them, marginalise them and discourage them from even having an opinion. It’s the dictatorship of the paranoid morons.
I’ve seen people work their butts off to host informative discussions, transcribe them, sit down with experts on various issues to work them out… And what do they get? They get shouted down. Called names (such as “LL cheerleaders”) etc. This is disgusting.
An inadvertent depiction of the quality of the LL ToS-related discourse.
In exactly the same way, the level of discourse on the ToS so far has been abysmal. Most people started jumping up and down, yelling and screaming in the forums, in group chat, in blogs and in-world, about how “LL IS TRYIN TA STEAL MAH STUFFZ!!!!!!!11111”, focusing on the sell/re-sell clause, which is really a non-issue and is addressed by Section 2.4 – I wonder if they bothered to read it.
The sell/re-sell clause got way too much attention (thanks, in no small part, to the “for any purpose whatsoever” clause). People thought LL was planning to take their creations (even the ones some of them *cough cough* imported to SL’s marketplace from video games’ resources) and sell them as their own. OK, let me play along with this prokanoid theory.
To whom would LL sell all of that stuff? Who would care to buy stuff made from sculpted prims? Who would care for low-resolution (512×512) textures? Who would want to buy unoptimised mesh products, or rigged mesh clothing made for the sub-par default avatar of SL? Who would want to buy prim-based products? Who would want to buy stuff ripped from video games? Who would care to buy stuff made usually by amateurs who pretend to be professionals?
The answer is simple: Outside of Second Life and OpenSim, no one would want to buy any of those products. Yes, I know it hurts your egos, but most of the stuff sold on the SL marketplace would never cut it in most markets: It won’t cut it in the video game market, not only because much of it is ripped from video games anyway, but because it’s full of wasted polygons and different textures that are unacceptably high-res (although they can be medium-res in and by themselves) and add up to lag, sagging the game engine’s performance. It won’t cut it in the CGI market, because it’s not detailed or refined enough. Even for relatively low-budget movie productions, like the exccellent Sintel, most of the stuff you buy in SL would be rejected as being of unacceptably low quality.
So, always assuming that LL is plotting to steal your precious prim-based stuff, which market would LL approach with the stuff it would steal from you? SL? It wouldn’t work – duh. OpenSim? No way. A majority of OpenSim users hate LL about as much as Cthulhu hates chordates. They wouldn’t buy anything from LL, simply because it’d be sold by Linden Lab, much less if it was pilfered from the SL “sheep”.
Yet, very few people dared point those things out. And those that did were duly shouted down by the raving lunatics. The constant repetition of these conspiracy theories as “facts” led much of the user base to believe that the most important (if not the only) thing that needed to be fixed in the ToS was the sell/re-sell clause. Even at the discussion with Ebbe Altberg a the VWBPE, several people who asked him various questions were talking about the sell/re-sell clause; not about the really thorny “for any purpose whatsoever” clause. In fact, I’ve facepalmed on several LL User Group meetings where various people (some of them were content creators, but most of them weren’t) kept regurgitating this bullshit theory, i.e. that LL magically owned everyone’s stuff and was planning to start selling it.
Although there were groups that tried to influence the Lab in a proper amendment of Section 2.3, the damage had been done. Far too many SL users think that the 8/15/2013 changes to the ToS were about the Lab appropriating people’s content and selling it for its own profit; the “for any purpose whatsoever” clause is something they’ve never heard of. Well, some who have heard about it simply combine it with the misconception they’ve got planted in their heads, simply strengthening it. And what makes matters worse is the propensity of many SL users to say “yeah, OK, I know these are the facts, but I choose to believe otherwise” – don’t laugh, I’ve seen this one too.
“Addressing” non-issues and leaving issues unaddressed
Groups were formed to influence LL into properly amending Section 2.3 of the ToS. Some of these groups actually had several highly skilled IP and copyright attorneys (like Vaki Zenovka/Agenda Faromet) in them, who sat down, worked hard, and offered proposals for a better wording that would both allow the Lab to do what it intended to do (such as enable content creators to sell their content through other channels).
They dedicated time and effort, instead of yelling on the forums. They pointed out what was actually wrong, what Section 2.3’s true impact on content creators was, and they offered to help fix what was wrong – and I know the Lab itself had said they welcomed those proposals (although, of course, no guarantees were given that any of these proposals would be accepted).
But the Lab simply kept kicking the can down the road, doing nothing at all. I have reasons to believe that this attitude on behalf of the Lab was caused by a “meh, let them scream and yell, they’ll get used to it” mentality that had evolved through years of similar drama and posturing on the forums. “Let them yell, where do you think they’ll go?” – I can easily imagine people in the top echelons of LL’s management saying words like these while reading the blogs and forums. As a matter of fact, with the benefit of hindsight, I think all the yelling and screaming provided the Lab with a fine excuse to not do anything for so long. People who wanted the ToS to be improved were vulnerable to being associated with the screamers.
All the while, people were receiving reassurances that the Lab was “looking into the matter of the ToS” and that its lawyers were “working hard on it”. By now, I’m sure you’ve read and compared both versions of the ToS. Personally, I’m not impressed. These (non-)changes don’t look like the fruit of hard work to me at all. Personally, if I were in those teams that worked hard to provide the Lab with rephrasing proposals for Section 2.3, I’d feel extremely insulted and would consider refusing to co-operate with them in the future.
Seriously, this is what took LL’s lawyers ten months? They took ten sodding months to reshuffle a list of rights granted to the Lab by the users and add an utterly incomprehensible and confusing (grammatically, syntactically, even legally) piece of text in parentheses? This is bullshit. Any lawyer I know in RL could do a much better job, and it’d take them less than two hours of work.
And, what’s worse, the Lab announced this (non-)change with a self-congratulatory blog post that claims the Lab did something it didn’t do at all. I consider this an insult to those people who, while being called all sorts of names by the prokanoid idiots that infest the forums and blogs, worked hard to provide a better wording (these groups were demanded by the Lab to keep silent while “negotiations lasted”), through in-group disagreements, careful study and around-the-clock consultations and deliberations. And their efforts were shunned and thrown to the dustbin in favour of this. Even an infant could do better than that. Seriously, LL pays people for this?
Parentheticals of Confusion
Although English is not my first language, I have English language degrees (Cambridge English: Proficiency, plus I’m up-to-date with my TOEFLs), I blog in English, the vast majority of the bibliography I used in my studies while at university was in English, I use English in professional transactions and dealings nearly every day, and I often have to wade through contracts written in English. I can tell a well-written piece of text from a poorly-written one.
When you want to write a contract, you’d better make it clear and understandable. Long periods, multiple parentheticals and the like should be avoided. Vaki points out that adding an exception at the end of a long list, which could apply to only one item in the list, or to all of them, does nothing to make the contract clear and understandable. Especially when the contract is a huge document like LL’s ToS. Let’s examine the “changes” that LL brought about.
The “(through multiple levels)” parenthetical is a fine example of a confusion generator. It applies only to “sublicense”. What does this mean? As Vaki explains, LL can extend these rights through many different levels of licensing agreements. In simpler words: If LL has an agreement with a hosting provider, and that hosting provider in turn has an agreement with a peering provider, then LL has to pass some rights to all of them.
Now, let’s reshuffle things a bit like LL did:
use, copy, record, distribute, reproduce, disclose, modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and sell, re-sell or sublicense (through multiple levels)
As Vaki points out, it looks like the text in the parentheses (“through multiple levels”) only applies to “sublicense”, or, at best, to “sell” and “re-sell” as well – but not to any of the others. Of course, the “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…” clause remains as is – which is precisely why I said that the Lab “addressed” a non-issue and left the real issue unaddressed.
So, the post-8/15/2013 ToS remain as problematic, over-reaching and downright bad as they were; the only limitation is that now the Lab can sublicence your content “with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service.” Which means that, at best (as Vaki explains), LL can sell or re-sell your content “with respect to Second Life, Inworld or otherwise on the Service as permitted by you through your interactions with the Service.”
This seems to be the interpretation that the Lab talks about in its blog post, but the way Section 2.3 has been rephrased doesn’t give any indication with its grammar and syntax that these limitations apply to “sell”, “re-sell” or any of the other rights listed before them. If the Lab’s blog post is anything to go by (combined with the way this part is written), the limitation applies to “sell” and “re-sell” as well, but not the other permissions. It’s very hard to make sense of it. And, of course, none of the other issues are addressed.
My take on all this…
When the Lab’s blog post was announced on Plurk with a fair bit of enthusiasm by the first users who spoke about it, I was cautious. I didn’t really expect the Lab to do anything w.r.t. the ToS anytime soon, despite Ebbe’s reassurances. So, I read the first comments… And then the announcement. Reading the announcement nearly had me saying “well, it’s about time”. And then I logged in and read the “revised” Section 2.3. That was when I realised that:
- Those who welcomed the announcement with enthusiasm had simply not read or compared the two versions of Section 2.3. I guess they’re in for a rather unpleasant surprise. People, before you express an opinion on something, please, pretty sodding please, READ IT FIRST.
- The Lab didn’t bother to address any of the well-documented and very real concerns regarding the complete lack of limitations to the rights it demands. Personally, I’m not particularly bothered by having stuff I shared with others remain in-world as long as SL exists, and I don’t care much what people do with the stuff I’ve given them with copy/modify permissions. What the hell, when I set the permissions to copy/mod/no transfer, I’m very much aware that I might not agree with what they’ll do to the object(s) I gave them. But it’s theirs now, and it’s not my place to tell them what to do with it, as long as it makes them happy.
- The Lab “addressed” only a matter that dominated the discussions because of the prokanoid screaming and yelling. In fact, it didn’t really address it, and it’s a non-issue, as it’s more-or-less covered by Section 2.4. Not to mention that SL content is practically worthless outside of SL and OpenSim. This is precisely why I’ve gone on record for saying that the SL user base got what it asked for, and deserved.
To me, these (non-)changes are a terrible disappointment, and – I’ll say it again – they’re insulting to all those people who worked hard to help Linden Lab. They’re a slap in these people’s faces, and there’s really no polite way to say it: Much of what the Lab’s announcement says is downright false. The Lab now has even more work to do to rebuild people’s trust.
- Revisiting the announcements of CGTextures and Renderosity re: LL’s new ToS (this blog)
- Updates to Section 2.3 of the Terms of Service – Second Life Official Blog
- Linden Lab amends Section 2 of its ToS (this blog)
- Section 2 of Linden Lab’s ToS: Version Comparison – Google document by yours truly
- Linden Lab whiffs the ToS again – by Vaki Zenovka
- Why LL and other virtual world providers need you to licence your content to them (this blog)
- Terms of Service | Linden Lab (Section 2)
- ToS in-world meeting, September 29th: a personal perspective – by Inara Pey
- Coverage of ToS-related issues on this blog
- ToS-related articles by Inara Pey