Linden Lab's New Terms of Service Changed to Enable SL Users to Sell Their Content on Desura?

Nalates Urriah has a plausible interpretation of Linden Lab's new Terms of Service, which claims rights over "all or any portion of your User Content (and derivative works thereof), for any purpose whatsoever in all formats", and has subsequently caused much agita. The new wording, he argues, is to enable the selling of SL content on Desura, the digital distribution service Linden Lab just bought:

Desura is a software sales point and Linden Lab property. If Linden Lab were to expand The Marketplace to sell Second Life content to Desura game makers, in an effort to expand our markets then they need to go beyond the Second Life service. Such sales would not be an integral part of the Second Life services they provide.

Hence the ToS change. That sounds right, and that interpretation is in line with what Linden Lab said in its clarification statement (which to judge by the ongoing controversy, has clearly not clarified), noting:

"Linden Lab often acts as an intermediary between Second Life residents (for instance, in its capacity as the operator of the Second Life Marketplace) which necessitates that Linden Lab have certain rights (such as the right to re-sell) in order to effectuate such exchanges or transactions... We have no intention of abandoning our deep-rooted dedication to facilitating residents’ ability to create and commercialize such content in Second Life. In fact, we strive to provide Second Life’s residents with evermore opportunities to do so."

And Desura sounds like a new opportunity to me. However, even if this is the reason for the ToS change -- I also still think protection against lawsuits is another factor -- the company could do a much better job explaining their reasons for the ToS change. A few years ago, Linden Lab's CFO would patiently answer user question after user question about a new policy online. By contrast, an anonymously written statement sent to some third party blogs will probably not cut it here.

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Comments

[Metacam Oh]

This is Linden Lab's own fault. When you don't make your intentions clear you fuel wild speculation. Doesn't seem like they are in any hurry to clarify it either.

[Shockwave Yareach]

That's like saying I have to surrender all my copyrights to my stories to be able to sell them at Barnes and Noble.

Other companies manage to sell digital merchandise without making the artists surrender their rights to their creations -- the only thing they actually own. If LL cannot accomplish the same thing then not only do they forfeit the right to claim to be a visionary tech business, but they will forfeit the right to be in business at all.

Another exodus has just begun, with creators abandoning their parcels and heading to Inworldz. And these people are the ones who make the stuff which makes SL fun. And just like all the others LL has pushed out, when they are gone, you will NEVER get them to come back and lose more money with LL again.

This TOS mess must be corrected immediately! Not in a few weeks. Not even in few days. Immediately. If you thought you were losing lots of sims per month, you haven't seen anything like what has just started.

[Keith Selmes]

"creators abandoning their parcels and heading to Inworldz." And Kitely.

[Ciaran Laval]

The claim that Linden Lab resell items via the marketplace is quite a stretch, were this true, Linden Lab would not be able to sit back and say it was a resident to resident dispute, they would be right in the middle of it.

The Desura idea is a good one but only highlights that a one size fits all TOS is not a good idea for Linden Lab's products.

[Tali]

Desura is still not "any purpose whatsoever".
Whatever the *reason* behind the change, whatever any "clarification" may be, the wording is still too broad.
Intentions and promises have no bearing on the ToS we and 3rd party sites have to legally relate to.

[Ezra]

This, like the argument Linden Lab would sell assets to another company someday, seems to ignore the technical and creative realities that most Second Life content is utterly useless outside of Second Life.

Who would want all the textures for skins and clothing layers created for the default avatar's UV map?

Who would want mesh clothing weighed to the skeleton of the default avatar?

Who would want animations for the skeleton of the default avatar?

Who would want the default avatar at all?

Who would want a bunch of 10 second sound clips?

Who would want a bunch of prefabs with baked textures vs. sets of material maps game engines have supported for the last decade? Yes Second Life has materials now, but maps used for it are tainted with Second Life-only concerns like baked extra info in alpha channels of specular and normal maps, so for those too, who would want?

Who'd want all the triangle dense meshes with no proper resource limitations in mind?

Who'd want sculpties and tortured prims?

Second Life content is a marvel in the way all art is a marvel within constrained mediums, but let's not pretend our Second Life creations are in line with advances in content creation over the last 10 years.

[Ciaran Laval]

@Erza it really doesn't matter whether the content is useless outside of SL, the new TOS goes too far and with third party sites restricting access to content that would help SL content creators and customers, it's not a good position to be in.

This hurts Second Life's reputation, LL should rectify this.

[Ezra]

@Ciaran

Yes, you're absolutely correct. I believe the TOS change in question should be reverted for the reasons you spelled out.

At the same time, a lot of paranoias against Linden Lab and motive-guessing in defense of them are a distraction from that simple truth: this hurts Second Life's reputation and has, at least in the short term, done more harm to it than good. Not a lot of harm, but harm. If there's any supposed long term advantages to the TOS change, they should've said.

[Ciaran Laval]

@Ezra agree about the paranoia, the root cause appears to be wanting a one size fits all TOS for all of their products, which simply doesn't fly.

I don't think there's any malicious intent from the lab at all here, it's just badly thought through.

[Iggy]

I'm going to be charitable: I buy this explanation. After all, the Lab has made this sort of ham-fisted move before.

How to make it right? LL needs to fire someone (or two) and replace them with folks who can actually communicate: look for more English or Journalism folks and fewer CS majors.

Then tell the user base that the persons responsible for the TOS snafu were fired for precisely this reason.

[shoana]

Speaking for myself I will not be uploading another thing to SL until this policy changes.

[Iris Ophelia]

This would be a pretty good way to ruin Desura, for that matter. Cluttering an already cluttered marketplace with things that its current core users likely have little use for (see Ezra's comment) is a risk to say the least.

Desura's strongest point is that it's a highly accessible indie game/software alternative to Steam. If that gets too muddled then they'll only be wasting the best opportunity they've had in years.

[Renmiri]

All SL content can still be used on Opensim.

I'd rather give my entire content for free on Opensim than let some ham fisted millionaire rip me off. Good thing I already left SL for the most part.

[Timo Gufler]

@Ezra, That was well said. Probably the ToS change harms SL economy little in short term, as a group of talented content creators leave it. But as those content creators join other virtual worlds and start contributing them, their impact will be major for the economies of those worlds. That will strengthen LL's competitors, that will be a major harm for LL on long run.

[CieraSpyker]

And people laughed at me when about a year/year and a half ago I sold my last 20 some sims and said screw it. At that time I saw a friend who was banned for doing nothing, I had even just had just lent him like a spare 60,000L just to make some upgrades not but just like 4 hours before he got cut from the playing field. He lost it all including some of my parts I loaned out because someone some where was butthurt.
I saw then that SL was no longer,(actually it never was or has been)a vailable or stable business field to be invested in when some douche head Deerfucker could make some wild shit up and cause great damage and lose real money.

Ive long since yanked all my stuff out of sl. Most of it. I still have some furniture stores and a couple of shoe places left butI have stopped "making stuff" and really just don't give a dam anymore. This coming from someone who spent thousands and thousands in Sl and still my ideas ripped off time and time again.

idk. Something very drastic needs to change or I actually will join those that say this is one of the last years for SL life. They need a console game. A preloaded DVD game, an online browser game with no fancy mind bending lets hide everything tools. AND as much as some of you hate it. SL needs to come to terms its the sex market keeping most of it afloat. Maybe market a 'SL after dark' DVD/console collection that has a multiplayer mode.

I like cash. Always have, SL has dried up for the most part. Selling our stuff isnt going to fix that.

[Renmiri]

No, I don't think the reason for the new TOS is just Desura. It is the exodus out of Second Life

I had a similar TOS in my own site, a tiny little gaming forum. The reason for that is that my forum was mostly made of user created content and I didn't want to go around yanking pages of my site every time a user left or disappeared. I did not want to have blank sections and a site full of holes but also - most importantly - I wanted to be sure I could keep on my site the best user content, the pages which increased traffic for my site.

To that end, my TOS said that by uploading content to it, users were granting my site the rights to have it on - or delete it - at the site's discretion.

Now let's think Second Life. Loosing private sims like Bruce Willis losing hair, losing builders and artists and users galore. Do they want to - in a addition to losing the artist - to lose the old content ? Do they want blank sim after blank sim on mainland ? Do they want to never see Brin'O works again and never be able to use the the user created avatars, islands, builds they have been using in their main login screen and in advertising for the past few years ?

Their users are leaving to greener pastures and the few joining aren't building or creating whole sims, clothing lines, etc.. SL is on a downtrend and if user content leaves with the users, the SL world is getting poorer and poorer and the trend is for the content loss to get worse, not better.

Linden Lab could give discounts to great builders or created incentives for talented builders to stay. But why do that if they can get all the old content for free, as easily as restoring a computer backup ?

No this move isn't about Desura. This move is about being able to use and reuse good user content

Content that made SL what it was in 2007-2008 needs to stay in SL. Even when the owners leave SL. So the new users that only register to shop have places to go and things to shop for.

Considering how many designers and builders left, died, moved on, LL has a lot of free content it can use before it actually has to start ripping off current SL designers. But there is no guarantee they won't.

[Wolf Baginski]

The one good thing in all this is that they are talking about a non-exclusive right, so you could set up your own channel to supply to the Open Sim market.

The horrible part is that if you're uploading (you don't even have to pass it on to another user), you no longer have an exclusive right. For some material, such as written text, that might matter a lot.

I am beginning to think that they have taken the SL TOS and tried to stretch it to fit everything else they have. This might make sense for Desura (it still seems odd) but doesn't make sense for SL. And some aspects of SL don't make any sense for Desura.

[Tali]

@Renmiri: The old ToS specifically allowed that, allowing LL the use of your content to run the service.
The whole point is that LL has now extended that clause to use your creations for not even "any LL product", but *anything whatsoever*.

[Tali]

@Iggy, just as a side note, I can pretty much guarantee you that it's not a CS major who has written such legal terms, nor decided that there should be no official response and only an off-the-record letter to a blogger.
(And in fact, I'd say there is a pretty good chance that a CS major is more clued in to digital IP rights than your average employee, and are used to juggling licenses and their compatibility).

[Armany Thursday]

I thought the free full license agreement given to Linden Lab for all user content applied only to content uploaded after August 16 (date that the new ToS went into effect). Is this not true? Does it apply to all content uploaded prior to that date?

[Tali]

@Armany, the new ToS does, indeed state that
"you hereby grant to Linden Lab [...], the [...] right and license to use [...] all or any portion of your User Content"
whereas the old one stated that
"You agree that by uploading, publishing, or submitting any Content [...] you hereby automatically grant Linden Lab a [...] license to use [...] the Content".

So by agreeing to the ToS, you did, indeed, hand over your entire back catalogue.
This creates the interesting situation that if you've ever used any 3rd party resource, you've now violated that license by handing everything over to LL, warranting that "you own or have all necessary Intellectual Property Rights, licenses, consents, and permissions to [...] authorize Linden Lab".

[Armany Thursday]

@Tali...omg..this is horrible! I will go back and read the prior ToS. Thanks so much for your response.

[Iggy]

@Tali, I wasn't referring to the TOS language as much as the poor planning that LL did to communicate how and why they were changing their TOS. They just did it, without any reasoning. But...

This latest fiasco from the slowly listing ship HMS Linden makes an English major want to heed Dick's advice from Shakespeare's Henry VI, Part 2: "The first thing we do, let's kill all the lawyers."

[Ajax Manatiso]

There is an essential problem with this as a unilateral clause in a contract is not enforceable. You cannot say - "You give me this and in exchange I give you nothing". That constitutes a unilateral clause and is not enforceable. It does not meet the requirement of demonstrating "a meeting of minds".

[Desmond Shang]

Not a lot to say that hasn't been already said on this, but add me to the list when it comes to the general unrest over this.

[Lynn]

The new TOS is certain death for SL. Frankly, I don't care though because they are trying to legally STEAL people's hard work & you can kiss off if you think I'm going to let anyone do that.

[Masami]

@Hamlet

Amiryu Hosoi, who had to shut down her historical Japanese themed sims in SL earlier this year, is in the process of moving all her content to the Kitely marketplace. According to her announcement it seems that she is going to rebuild the Hosoi Cluster in Kitely.

[Jaqua]

Here is proof that the SL ToS is larger than SL
http://www.renderosity.com/renderosity-products-not-allowed-at-second-life-cms-16783

[Wolf Baginski]

I used to be on Renderosity a lot.

There wasn't much that could be used in SL. You could buy raw textures as the base for making up an SL clothing textures, but it was a lot of work to deal with the UV-mapping for the AV. The texture packs were mostly the same basic idea as those textures in the Library. And there wasn't really a path back to the original texture--it was a one-way trip through Photoshop.

So even the current TOS might have been tolerable. Whatever ended up in SL stayed there.

Mesh started to change things. Renderosity is built around CGI modelling using Mesh, using programs as diverse as Poser and Maya. So are places such as Turbo Squid. Not all the meshes are practical for SL, some are insanely complicated, but some are the sort of low-res meshes used in games.

It was still hard to get a Mesh out of SL.

What we have now is the addition of a sales operation, Desura, which is an exit path from the Linden Labs lock-box, and a new TOS which lets Linden Labs sell anything uploaded to SL.

I think that is what rings the alarm bells at the various CGI sites which sell what amount to game components. It's the combination of sales channel and TOS, and it all looks a little too piratical for comfort.

I can load up my old version of Poser, buy material from Renderosity, make images, and sell those images. I don't have the right to resell those CGI models. Under the old TOS I could upload one of those models, and create images that other people could see--SL as a CGI image generator--but now Linden Labs can, just because I uploaded the model, sell it through Desura.

Well, maybe they can't, but it would need a bunch of lawyers and a judge to sort out that question.

And the obvious question is, why have Linden Labs done something that could provoke a court case against them? Why are all the paying customers going to see some of their money going towards feeding the lawyers?

[fineartzman]

Someone should make an art installation illustrating the feeding of the lawyers. Not on SL, of course.

[Dartagan Shepherd]

Bunk. We don't do this kind of double-speak in agreements in the business world.

If LL wanted to cover the marketplace reselling, they could have spelled it out.

If they wanted permission to do X,Y and Z with your content, those could be opt in options on your account page to allow them to do X or Y or Z.

If they wanted to do individual TOS's for SL and Desura they could have.

Agreements can be as specific as you want to make them, and both parties are better protected when they do make them specific and adapt as needed. LL knows it, their lawyers know it and most people in business know it.

This is a farce. Especially with the "intent" schtick. Intent is what you "do" or in this case write up in an agreement. Verbal salve has nothing to do with intent, nor should any content creator have to trust "intent" to verbal anything.

It's exactly what it looks like at face value, a play to do anything with no permission, ever, past or present.

[2013]

yawn

[Shava Nerad]

It's a very simple limited license to change it from "for promotion of the service" to "for [insert here]"

Where [insert here] is some definition earlier in the TOS where they define that this TOS covers the benefit, scope, promotion and legal rights yada yada of all web sites, market places, yada under the ownership of Linden Labs including Second Life, Desura, secondlife.com, [whatever the list is].

That's what a limited license is. I've been harping on this one all along. It wouldn't be "promotion of the service" at that point. They'd have to come up with some language that attested that it was for purposes that you as the user and they had consented to including this list of things for these reasons, including for promotions, yada yada.

But not unlimited, perpetual, for any purpose.

Copy, mod, trans, guys? That's a lot of trust. Yes, it's our copyright. But who are you going to hand it to, with our names filed off?

Because in legal language, it comes down to this, as plain SL English as I can make it: we give the legal right to the next guy to copybot your stuff, and it's up to the next guy's ethics whether or not he or she bothers to talk to you about it.

Might be one of a hundred unknown debtors or people receiving assets at auction in the case of bankruptcy. You want to chase that down? You go ahead.

Actually, we'll have to go ahead too. It's damage control.

Frankly since we have stuff in the asset server we've sold and will be there in case of a sale/bankruptcy, and they won't know to delete it just because it's a copy of a sold item, we'll be required to defend our copyrighted stuff, even though we're pulling out, because we've got sold items in world we can't delete by asset number.

So it's a morass.

Even for stuff that's legal with textures that are now not being sold, how will they know it's a texture in an item authored before August with textures from a company who forbade their textures to be used after August?

The whole thing's more symbolic than practical if they don't relent -- if you -- and you -- and you don't join in on making them change the damn policy...!

And frankly, at this point, I'm starting to wonder if they have any interest in responding to the community at all.

Remember when you used to be able to just go meet with a Linden, get a bear, talk about issues and get a relatively straight answer a couple times a week? Some of us might not have thought it was relatively so, but as businesses go, it was relatively transparent...

[Arcadia Codesmith]

Bake the assurances LL has made (which, BTW, could be considered a binding legal contract anyway) into the TOS. Problem solved.

[fineartzman]

If they wanted to solve the problem, the would. Maybe they just want it to fade away when we get distracted by the next shiny thing.