Linden Lab Expresses Regret for Confusion Over New Draconian Terms of Service, Affirms Respect for SL Content Creators (But Were You Really Surprised?)

Just received this statement from Linden Lab spokesman Peter Gray regarding that post about the concern the new Terms of Service with draconian "we own everything" language has provoked. Here's the key part, worth putting in bold:

Linden Lab respects the proprietary rights of Second Life’s content creators. We regret that our intention in revising our Terms of Service to streamline our business may have been misconstrued by some as an attempt to appropriate Second Life residents’ original content.

In other words, like I suggested before, stop worrying so much. (And if you really are worried, copyright your content before putting in Second Life.)

Full text after the break:

"Recently we updated our Terms of Service to unify the existing terms of service for our various products into a single version. This updated version included a clarification with respect to the specific rights which a user grants to Linden Lab when submitting user-created content (referred to as the 'Service Content License') and, except as set forth in any related Linden Lab policies (referred to as “Additional Terms”), the right to “re-sell” such user-created content.

"As previously indicated, the updated Terms of Service encompass a wide variety of Linden Lab products and services. We made every effort to incorporate Second Life’s existing policies in a distinct manner. We realize that the general nature of portions of the new Terms of Service may have led some individuals to believe, mistakenly, that Linden Lab was renouncing existing Second Life policies and practices or attempting to expropriate content created by Second Life residents. To that end, we want to further elucidate and reiterate our practice with respect to the Service Content License (and specifically Linden Lab’s right to re-sell user-created content) in Second Life.

"As an example, Linden Lab’s Second Life Mainland Policies (cited as 'Additional Terms' in the updated Terms of Service) have long included Linden Lab’s right to 're-sell or otherwise alter abandoned parcels of SL’s mainland,' including, if and to the extent necessary, any user-created content incorporated into such parcels.

"Additionally, 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.

"As evidenced by Second Life’s extensive history, functionality and well-documented policies for providing a platform on which users can create and profit from their creations, Linden Lab respects the proprietary rights of Second Life’s content creators. We regret that our intention in revising our Terms of Service to streamline our business may have been misconstrued by some as an attempt to appropriate Second Life residents’ original content. 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."

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Comments

[TG]

So, instead of admitting their own mistake, LL blames our conclusion. Have we been here before? Whatever, CGTextures drew their conclusion, that's a loss for many content creators.

[Ajax Manatiso]

Hev you ever wondered where all the "freebies" in SL come from? Content creators that have left SL and had their content claimed from them by Linden Labs, or others as through their terms of service.

[Cube Republic]

That's not true Ajax

[Tali]

This is not about what we believe LL will do, or what they promise to do in a blog.
It is about the ToS stating that "you hereby grant to Linden Lab [...] the non-exclusive, unrestricted [...] right and license to use [...] all or any portion of your User Content [...], for any purpose whatsoever".
Unless something is entirely your own creation, or is purely public domain, you do not have this right, so you cannot grant it to LL. Not with Creative Commons; not with expressly commercial licenses; not with any license. Uploading to SL will be a violation.
I do not believe there is any conspiracy behind the change, but the wording *does not work* with other licenses.
Getting licenses to mesh is a hellish puzzle, and LL screwed this one up. We can of course choose to say, "Oh, well, we'll just violate the license; nobody will probably mind", but that really shouldn't be something to codify in the ToS of a company which specializes in user-generated content.

[zzpearlbottom]

Will Burns post about this subject is the mot wise one and obvious, also the most feared one!
http://modemworld.wordpress.com/2013/09/11/tos-change-and-content-rights-lab-provides-statement/

[Orca Flotta]

I don't care about and licenses and commercial shit and laws and stuff, the only truly shocking reveal and question for me is:

LL have a spokesman???

[Arioch]

This statement is word-for-word exactly the same as the one Inara Pey received from LL and posted yesterday, before you did, Hamlet. Now, either Mr. Gray has put together a statement that he sends to everyone interested or...

Or...

You know what I'm getting at. Behave next time.

;-)

[zzpearlbottom]

Lol Orca!
Still im from the times where content creation was free and still there was a lot, games like Bethesda, Gta and many more, do really know that it is what makes some 12 or even older games still be played!
So i was extremely shocked in the way many SL creators or users behave, as if SL could be a mean to get some RL income, until i realize that in fact so many depends on that revenue to survive with a minumum of dignity on RL!
Sl is not a game, is much more and the fact that so many depend on it to make a better RL life or that it supports so many noble causes (Feed a smile, RLf and so muhc more!) should not only makes Us all proud but also make Linden Lab realize that as well!

[Iggy]

Naive question: Beyond using UGC in marketing, what CAN LL do with the best content capable of export?

Resell it to gamers?

[Tali]

Also, Hamlet, can you wring an explanation out of LL for why they felt the need to change the "for the purpose of providing and promoting the Service" - which is pretty much an industry standard - to the new wording if they don't mean it?

All other things being equal, and conspiracy theories aside, going from "for the purpose of providing and promoting the Service" to "for any purpose whatsoever" *is* a pretty big change (and a deliberate choice) and the "write something outrageous in our legal document and then say in a letter to a blogger that of course we don't mean it"-strategy really puzzles me.

[Shug Maitland]

It's really simple, PUT IT IN WRITING -- in the TOS, not in some soon-to-be-forgotten comment to a blogger. Anything less will not restore people's trust.

[Metacam Oh]

hey dont worry we wont sell your textures don't worry, even though our TOS says we own it and can. Don't worry you can trust us. LOL

[Maxx Nordlicht]

Can you be a little more critical towards LL Hamlet as a journalist/bloggger?
If a policeofficer says its ok to drive 100mph would you take his word for it or still look at the traffic signs?
The TOS says something different than just a comment from LL. And we all have to accept the TOS.

[Wagner James Au]

Check out my post yesterday, I wrote why LL put this wording in. Short version: Lawyers.

[Hitomi Tiponi]

If that is not what their intention is, a simple re-write of the ToS should clarify the matter - do that Peter Gray, rather than writing a post that means nothing legally (and you know that).

And don't forget Hamlet that many content creators live outside the USA, their chances of redress are even slimmer.

[Ada Radius]

the TOS is a legal document that we have to click "I agree", and did, before being able to log in. LL "explaining" it in words that aren't reflected in the TOS itself, doesn't have any force or meaning.

[Wagner James Au]

"The reason behind this broad rights grab is Linden Lab's plan of monetizing the content created by SL users once they shut down SL, either by using it in new Linden Lab products or by selling it to other virtual world providers and games developers."

Jay, what's your evidence for this claim?

[Tali]

@Hamlet, your supremely incisive insight; "lawyers", do not explain why LL felt the need to change what their lawyers had already done, and what the lawyers of the rest of the industry is using for similar hosting scenarios.

[Scarp Godenot]

If LL's intentions are pure as their spokesman claims, then put that language in the contract.

It's not brain surgery.

Just saying "I know it sounds bad, just trust us" is just amateur city when it comes to contracts. A lot of us are fully aware of the law and it really isn't that hard to explain their intent in the contract.

So, as many have suggested. Put your disclaimers in the TOS.

Simple as that.

Then we will be happy again.

[Nalates]

Copyright!?!

All that does is firmly vest your rights in your name publicly.

It does nothing to keep you from giving those rights to LL by logging in.

[Wizard Gynoid]

When I first saw this headline tweeted I presumed it was an article in the Onion - a parody.

[Savoree LeDesir]

It doesn't make any difference how Linden Lab claims in a PR release they "intend" to use their rights to user content under their Terms of Service. What matters in a court of law is what the TOS document actually says. The content users who have spent many, many hours creating content that is high-quality and resell-able on multiple platforms are smart to take the TOS seriously, because if they digitally sign it, then upload their content (copyrighted or otherwise) to Second Life, this legally-binding document WILL be used against them if they need to sue the LL for the misuse of that content. I think it's insulting and disrespectful to openly mock those content creators by telling them to just "stop worrying so much."

[Dee Wells]

"We're going to dig a trench under your house and stuff it full of TNT. We'll rig it up to a detonator and sit here and stare at you. We'll never set it off, you just have to trust us. You can agree to these terms can't you?" Most people generally don't appreciate being called complete idiots. Second Life creators are no different.

[Madeline Blackbart]

@zzpearlbottom I think that anyone who has plays second life ESPECIALLY people making money from it need to realize that second life is a game and games are not a stable economy. As things advance games like second life become outdated and people move on. To be honest I think were starting to see that with second life a bit. I think second life is fairly safe but if a better alternative comes along what will people who make a living off of SL do? Or what if Linden Labs shuts down SL due to financial reasons? LL I think is well prepared for that. If they haven't prepared for those possibilities then I'm sorry but there foolish people.

[Vaki]

Hamlet, your comment "(And if you really are worried, copyright your content before putting in Second Life.)" is pretty misleading. Your content is protected by copyright the moment it is fixed in a tangible medium of expression (e.g., the moment you create and upload your content). In the post you link to, Ben talks about registering your copyright, which is a totally different thing. Registration further protects your copyright by, among other things, allowing you to pursue infringers in court.

We're not talking about infringers here. We're not talking about going to court. What we're talking about here, and what people are worried about here, is licensing. In other words, the creator owns the copyright to his or her content, but by uploading it to Second Life, the creator licenses the content to LL under the terms of the Terms of Service. That's standard: we always have done things this way. The issue here is that the wording of the ToS is woefully overly broad and lacks any limiting language.

Of course, a creator may own his or her copyright and license it. A creator may own his or her copyright and license it under ridiculously unfavorable and overly broad terms. But the general goal is to avoid such unfair and unfavorable agreements.

The issue I take with the advice to register copyrights in this case is that here, we're not talking about anything that registration affects. In other words, this advice is erroneous: telling people that if they're really worried, they should register their copyrights doesn't help them with the thing they're worried about in this case. Registration won't change or ameliorate the rights creators are giving up when they upload content under this license agreement. The best solution would be for LL to write a better license agreement.

[zzpearlbottom]

Naaaa, the solution for the Lab is not doing nothing and they will not! The know 99pct of users does not care and the 1pct left, will not matter!

[Arcadia Codesmith]

Click-through TOS terms are a contract of adhesion -- a contract in which a more powerful party imposes terms on a less powerful party which are non-negotiable.

In general, courts will uphold a contract of adhesion as long as the terms are reasonable. But if the terms are manifestly unfair to the less powerful party, there's an excellent chance that the court will not enforce them.

That's the dirty secret of the TOS. It's fragile. When LL says they'll play nice, I believe them. Because if they don't play nice, there will be hell to pay. And lawyers too, but that's redundant.

[zzpearlbottom]

Instead of clarifying all with a simple change in the TOS, LL launches Facebook whatever compatibility???

[Dee Wells]

@zzpearlbottom: LL hosts an OS grid on a set of servers and markets a 'grid.' The only thing the 99% sign in for is to see and use the content, every pixel of it created by the '1%' who refuse to allow LL to rip them off, easily redressed by changing 5 words in one section of a legal document (really only to better reflect what they meant in the first place). I know what you're saying, and I agree that this escapade shows that attitude, but if anyone expects this to die off and the change become de rigueur there is an education brewing.

[zzpearlbottom]

I do think none here do really wish that, but as i fear we all know to well, LL will doubtful listen to any of our pleas! and We are a minority in the Sl universe, the ones that read and are informed, via blogs or whatever!
Ans the fact remains, Sl is still a paradise for freedom of creation and all, we just need to go back to basics, build in world!

[Dee Wells]

@zzpearlbottom: Sadly, I agree with your assessment, yet nearly all of my SL friends are on FB, and most of them are either posting their own links to blogs or commenting in others. This escalates daily. Stay tuned ;)

[zzpearlbottom]

But i also ned to make it straight, i don't fear facebook and nor the ones that can come from it to try SL!
I have a rule, i don't mix Rl personal data with Sl one, like gender, age, and so on!
I don't care if others do or not, as long as they can live with my rule!

[Masami Kuramoto]

Hamlet, are you suggesting that if the terms of a contract and a PR statement contradict each other, the PR statement overrides the contract?

[i_am_going_there]

LL's progressive ideology is beginning to show now. You all can hem and haw over what the Tos means or what it doesn't mean-it's in writing.

I for one have begun cashing out the several thousand dollars I've had sitting there. (I'm one of those people who now formerly created stuff for a small profit in SL)

Enough is enough, it's not fun anymore and now you have to worry if they are going to profit on your creations in any fashion they see fit. No thanks and fuck off, LL. Same for all you water carriers as well. The writing is on the wall in front of your face. It's dead.

[2013]

yawn...typical NWN doom and gloom

[Allison]

As a content creator, I find the new TOS language troubling, despite the platitudes coming from Linden Reseach PR. I would much prefer to see a revision of the TOS.

[Perrie]

That letter is just pure public relations bunk. Especially the (for brevity's sake I will use the simple word) 'lie,' that they need this permission to operate the Marketplace, claiming they are a re-seller. They are not a reseller, they are acting as an agent. Go read the TOS for other digital content marketplaces like ITunes, etc, and they are all very, very specific about this fact.

[Wyvern Dryke]

I filed a ticket about this issue, last week. Here is their reply:

Sept. 9, 2013, 2:37 p.m.
BradleyH Scout

Hello Wyvern,

Thank you for contacting Linden Lab support. I would love to be able to discuss your TOS questions.

However, due to the legal nature of the document we as support agents are not allowed to do so.

You are more than welcome to reach out to our legal team with your concerns.

By Mail:
Linden Lab Legal Department
945 Battery Street
San Francisco, CA 94111

By Fax:
Attn: Legal Department
415.243.9045

As always feel free to reach out to us at any time.

Thanks,

BradleyH Scout

[Wyvern Dryke]

So here's an idea, why don't we ALL send faxes and emails to LL, requesting an amendment to the TOS, to protect our rights? Here's mine. Feel free to copy it, reword it, re-use it, as much as you wish.
~~~~~~~~~~~

Dear Linden Labs,

We, the undersigned creators and citizens of Second Life, do respectfully request an immediate and permanent amendment to the Second Life Terms of Service, section 2.3. It states currently:

"Except as otherwise described in any Additional Terms (such as a contest’s official rules) which will govern the submission of your User Content, you hereby grant to Linden Lab, and you agree to grant to Linden Lab, the non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, 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, on or through any media, software, formula, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, and to advertise, market, and promote the same. You agree that the license includes the right to copy, analyze and use any of your Content as Linden Lab may deem necessary or desirable for purposes of debugging, testing, or providing support or development services in connection with the Service and future improvements to the Service. The license granted in this Section 2.3 is referred to as the 'Service Content License.' "

The section of TOS quoted above begs the question: does Linden Lab actually have the right to re-use our creations freely? Specifically, can Linden Lab give or sell our original creations to others, whenever they wish and without informing us? In effect, are our artistic creations actually ours, or do they belong to Linden Lab?

As virtual citizens, we do understand it is necessary to store and re-transmit our creations, in order to send data to other viewers. It is also necessary to examine and share data within Linden Lab, for technical support purposes. Such usage is fair and acceptable. That, however, is where the TOS needs to stop. It is not necessary--and is, in fact, grossly overreaching--to demand worldwide distribution rights, anywhere, in perpetuity.

As creators, we deeply value our artistic endeavors, both on and off the virtual grid. We pour countless hours into the textures, scripts, mesh and prims that we shape. As such, it is absolutely essential for us to protect our intellectual property. The concerns are not just financial, but personal. Furthermore, if our creations are indeed a fundamental part of Second Life--which Linden Lab has promoted as a "user created world"--why then should those creations not be protected?

To conclude, we hold that what we create in Second Life must remain ours. It is an essential part of the creative process, and a keystone of international copyright. If Linden Lab reuses our work, it must be with expressed permission--not a blanket clause--and fair compensation for each use. Otherwise, what drive is there to create in Second Life? We become nothing more than unpaid employees, freely creating material for Linden Lab to, quote, "exploit." It is not right, and it is not fair.

As such, we hereby request that the TOS be amended immediately and permanently to reflect that we retain full Intellectual Property rights, that we in fact must be consulted, and fairly compensated, before our work can be re-used, sold, or distributed in any way other than normal, server-to-viewer activity.

Thank you.

[Minty]

There will be some fun times if LL try to resale the contents created by users. A part of these contents comes from piracy and copyright infringement. So LL lawyers will have some work and it will cost LL a lot of money and for sure a bad reputation.

[zzpearlbottom]

As i said, no change on the Tos, they just don't care anymore!

[drangon]

Is SL about to be sold? That might explain why they are getting their legal house in order.

[zzpearlbottom]

Well lets spread another rumor, evil Facebook is going to buy LL!
Or worse, EA!

[Armany Thursday]

This is complete bs. If LL does not correct the TOS immediately, I am advising all original content providers I know in SL and elsewhere to stop immediately or proceed at their own significant risk (including all visual artists, writers, and musicians).

[Merit Coba]

"In other words, like I suggested before, stop worrying so much. (And if you really are worried, copyright your content before putting in Second Life.)"

A condescending attitude to say the least. An investigator of any measure would have posed the question: so mister Linden Labs, how does your statement hold up to your companies TOS? And if you say A, why does your TOS say B? Or said investigator should have wisely hold his tongue, given the fact that said investigator just copied over the statements of another interviewer and thus was unable to pose the question to the Linden Labs person himself.
Will this statement of that Linden Lab person override any Linden claim based on the new TOS? And what did that Linden Lab person actually say in legal terms that can be brought to the courtroom if it ever comes to a legal issue?
What someone nicely described elsewhere as a trench filled with tnt I describe as putting a pistol to someones head but promising not to pull the trigger. But what if Linden does? And why does Linden Labs actually think they can put a gun to someones head or pull that trigger?
But overlooked in the quoted statement by the condescending dude are actually works that are created inside SL. An example of this is the prim avatar that a friend and me made. This avatar is not been made outside sl and thus copyrighted outside SL, but created inside SL, hence within the boundaries of the TOS. I have not been able to copyright it myself for myself, thus forestalling any claims by Linden Labs.
Yet another category of people is also overlooked: those people who write. It will be advisable to them to copyright any material they publish in a notecard or chat, because otherwise Linden might lay claim to the content(Haiku Hare beware!).
This TOS arrangement sees Linden Labs trying to create a feeble legal gun they might put to somebodies head someday so that when the opportunity arises they might perhaps be able to pull the trigger, if they are so lucky but I suspect it is actually a legal attempt to forestall someone else putting a gun to their head whenever they might have to sell off the whole Second Life thing lock stock and barrel(as is suggested in another post).
This is a company trying to lay claim to all created content while at the same time telling you that they are not doing so and then sooth you to stop worrying about it. Of course you should not worry, because by jove: they need your stuff.
Personally I don't worry about Linden Labs legal arrangements, my estimate is that when it comes to a courtroom issue they lose anyway because half of it does not stand up in court anyway.

[Yoshiko Fazuku]

How does copyright work in a relativistic universe, anyway? In whose reference frame do we count the passage of time? Does the clock start when the original is created, or when I enter the light cone of the creation of the original?