Thoughts on the (non-)changes to Section 2.3 of LL’s ToS

But that means my content belongs to LL!

No. Remember paragraph 1 of the controversial Section 2.3 of the current ToS:

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).

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7 thoughts on “Thoughts on the (non-)changes to Section 2.3 of LL’s ToS

  1. I was one of the few that realized the impact of this change early on, got branded a wackadoodle and cassandra and clownass as usual by the head-in-sand crowd, which is why I threw LEA25 back in LEA’s faces in protest and changed my usage of SL for creative original content.

    I don’t think the prokanoid/whackadoodle crowd influenced the Linden Lawyers’ efforts as much as the Lab’s utter disregard for the concerns of the customer and incompetence, but on the rest I agree.

    I look forward to your thoughts on the issue I’ve been most concerned about (and addressed on the Botgirl blog post today), which is the content that has actual value outside of SL: writing and prototyping content. No company in its right mind would use SL for prototyping, and the ToS just adds evidence to the 72-hour psychiatric hold papers. (If a company is a person, then you can put it in a padded room, yes?)

    And I’m wondering when folks will wake up to the fact that Hamlet lost his marbles and credibility long ago, and it’s Inara, Honour, Ciaran, Thinkerer, You, and a limited number of others that people should go to for serious commentary. (Although, come on… you’re going down Prokofy Road with the political stuff mixed in. 😉

    -ls/cm

    1. You went a bit off the rails in the end: Prok is a conservative and a borderline racist. I’m anything but that. On the other stuff… The ToS really should be written as a proper contract: In a clear, understandable manner, listing in high-res black & white what can be done, what can’t be done, how it can be done, why, when, and under what circumstances and conditions. As it stands, the “in any manner whatsoever” and “for any purpose whatsoever” clauses are the kind of stuff that would easily turn people away from SL.

      As for prototyping in SL, I’m sorry, but I beg to differ: SL has always been technically unsuitable for prototyping, and any discussion ends there, long before the company’s lawyers look at LL’s ToS. Let’s say I work for an engineering company and we have software like PTC’s Creo, or Dassault’s CATIA. Why in the name of Souvlaki Magnus would we shun such super-powerful software and bother with the Fisher-Price engine of SL and the clunky LSL?

      1. The good people at Fisher-Price are holding on line 2, they say it’s about your allegation that their products are of the same quality as SL and/or LSL 😉

    2. Furthermore, regarding the influence of the prokanoid and the Chicken Littles on the debate, they didn’t influence the Lab’s ToS-related “efforts” directly. Their yelling about the non-important issue was so loud and ubiquitous, that it drowned out any other voice – even the UCCSL focused (rightly) on the “for any purpose whatsoever” part, yet most people in-world keep babbling on about the “sell/re-sell” stuff and the “LL OWNZ MAH STUFFZ!!!!11111” bullshit. I’ve seen them in all sorts of places in-world, in forums, in blog comments, even in LL User Group meetings. They were fed the lines by the loudmouth schmucks who try to dictate the agenda. And they did change the agenda here. This was convenient for the Lab, actually. It required no real effort, it didn’t require them to actually limit their rights in any way, so they went for the easy “solution”, which solves nothing at all.

  2. I’m not sure why sell/re-sell is even in there. Linden Lab do no sell or re-sell items, they facilitate the sale in a similar manner to ebay or Amazon. With Amazon you can store your items in their warehouse and they will deliver the items for you but they do not sell/re-sell those items and they make this abundantly clear.

    The reason they make this abundantly clear is because any disputes are between the buyer and seller, not the intermediary who facilitates the sale and Linden Lab take exactly the same stance, which is why it’s an extremely odd part of the terms of service for Second Life.

    However other products in Linden Lab’s inventory are sold/re-sold by Linden Lab. I would imagine they need these terms for Desura, for example.

    1. There are three explanations to this that I can think of.

      A. It’s corporate legalese CYA (cover your ass).

      B. It’s to do with hardware reappropriation in the run-up to the new virtual world’s launch and the sub-contracting of hosting various SL-related services; it could be argued that subcontractors need certain clearances. This is NOT a totally satisfactory explanation. BT, Forthnet etc don’t need clearances to host e-shop services. For other functions, it makes sense, though.

      C. They might one day decide to sell SL. Very unlikely.

      I gravitate to a combination of A and B for some parts, with the rest residing forever in the minds of LL’s lawyers. And, of course… IANAL.

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